Judicial Scrutiny of Sex Discrimination in the Employment Practices of Criminal Justice Agencies
Gender Theory, Stereotyping, and Legal Liability
Social science research is replete with studies examining the impact of gender in the workplace. Some analysts focus on the extent to which capital resources and other extraneous factors influence gender-based hiring and promotion practices (Petersen, Saporta & Seidel, 2000; Kay & Hagan, 1998; Kalleberg & Reskin, 1995). Others focus on the organizational structures that perpetuate and reinforce stereotypes in job allocation (Gorman, 2005; Ridgeway, 1997). On the other hand, other studies refute the notion that sex has any significant impact in the hiring process and hiring decisions of management, particularly, in call centers and retail banks (Petersen, Saporta, & Siedel, 2005; Fernandez, Castillo, & Moore, 2000; Fernandez & Weinberg, 1997). There is lack of research, however, on the legal interpretation accorded by courts to the term sex discrimination and the circumstances under which sex discrimination in the workplace may be deemed to exist. Also, there is scant analysis of the legal procedures needed to establish the existence or non-existence of sex discrimination in the criminal justice system. The focus of most social science research has been on the development of theories of why sex discrimination exists.
Theorists explain that gender stereotypes are triggered by cultural schemas (Marler & Moen, 2005; Fiske, 1998; Bem, 1993) or how a particular society and individual members of that society categorize certain roles (Perry, Davis-Blake, & Kulik, 1994; Heilman, 1983). In the workplace, stereotypes of what constitutes male as well as female roles tend to reinforce the employment practices of a specific organization, particularly, in the areas of hiring (Petersen, Saporta, & Seidel, 2005), assignment of job responsibilities, promotion, discipline and termination (Eliasoph & Lichterman, 2003; Zuckerman, 1999; Di Maggrio & Powell, 1991).
Although traditional gender stereotypes were particularly prevalent in the criminal justice system (Brown & Pechman, 1987), some studies suggest that with the passage of the Civil Rights Act of 1964 (Stivers, 1993), the onset of community policing with its emphasis on community service and relations (Skogan, 2004; Greene, 2000) and changes in environmental factors (Zhao, He, & Lovrich, 2006) such as city population (Felkenes, Peretz, & Schroedel, 1993; Warner, Steel, & Lovrich, 1989) and liberalization of local politics (Salzstein, 1986), females have gained more acceptance and have constituted a larger part of the criminal justice workforce. There are studies contradicting the notion, however, that the Civil Rights Act of 1964 has had any favorable influence on the employment policies, practices and customs of criminal justice agencies wherein stereotypical and gender-biased beliefs and practices of the male-dominated personnel and management are prevalent (Eschholz & Vaughn, 2001). A typical example of such female stereotyping is reported by Pogrebin and Poole (1997) who observed that “male officers frequently referred to female deputy sheriffs as ‘honey’, “babe’, and ‘dear’ and subjected these officers to physical abuse that included unwelcomed kissing, unwanted groping of breasts, and unsolicited pinching of buttocks” (Eschholz & Vaughn, 2001, p. 396).
Despite the perception of criminal justice agencies as male-dominated and gender-biased, there are studies suggesting that Title VII of the Civil Rights Act of 1964 has had a favorable impact for females in the workforce composition of criminal justice agencies (Zhao, He, & Lovrich, 2006). To the extent that it contributed to the advent of females in the labor market, Title VII plays a significant role in gender rights movement. The legislative history of Title VII shows that it was enacted by the 88th Congress due to the perceived need to “make persons whole for injuries suffered on account of unlawful employment discrimination, its primary objective, like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm” (Faragher v. City of Boca Raton,1998, p. 806). As originally drafted by Congress, Title VII applied only to discriminations based on race, color, religion or national origin (Washington v. Gunther, 1963) while the Equal Pay Act, enacted earlier, applied to sex-based discrimination. However, the final version signed by the President included discriminations based on sex. Title VII was further amended in 1972 to make it applicable to states and other governmental employers (Dothard v. Rawlinson, 1977) and in 1991 to incorporate Supreme Court decisions interpreting the Civil Rights Act of 1866 and 1964 (Landgraf v. USI Film Products, 1994).
Extant research shows the need to analyze the role of the federal courts in promoting diversity in the workplace upon the passage of Title VII of the Civil Rights Act of 1964. Decisions of the federal courts validating or invalidating specific employment practices in the criminal justice system is necessarily important due to their impact on actual decision-making policies of law-enforcement and corrections management. The legality of employment practices can be assured only through compliance with specific rulings of the federal courts.
Judicial Standard for Gender Based Discrimination
The United States Supreme Court (“Supreme Court”), in a line of decisions has held that under the Equal Protection Clause of the Federal Constitution, gender or sex-based classifications initiated by government are subject to intermediate scrutiny or a heightened standard of review. In cases where the plaintiff brings suit against the government, the government defendant must show that: “the challenged classification serves important governmental objectives, and (2) discriminatory means employed are substantially related to achievement of those objectives” (Tuan Anh Nguyen v. INS,2001, p. 2060;United States v. Virginia,1996, p. 532;Mississippi Univ. for Women v. Hogan,1982, p.724;Wengler v. Druggists Mut. Ins. Co.,1980, p. 150;Weinberger v. Weisenfeld, 1975, p.636). This intermediate or quasi-suspect standard of review is in contrast to both the strict scrutiny test and the rational basis test employed by the Supreme Court in other cases of disparate treatment initiated by government.
Under the rational basis test, government-initiated or government-sponsored classifications based on age, property or other non-suspect or non-fundamental rights are presumed valid under the U.S. Constitution’s Equal Protection Clause unless the plaintiff proves that such classifications are not rationally related to a legitimate government interest (Bhagwat, 1997;Romer v. Evans,1996). On the other hand, under the strict scrutiny test, government classifications violating fundamental rights such as the right to interstate travel, First Amendment freedom of speech and religious rights, right to privacy, and the right to vote are presumed invalid unless the government defendant proves that such action is necessary for a compelling government interest (Adarand Constructors v. Pena, 1995;Pacific Gas & Electric Co. v. Public Utilities Com., 1986).
In contrast, actions based on Title VII of the 1964 Civil Rights Act impose on the plaintiff the burden of proving, by a preponderance of evidence, intentional discrimination by the private employer. The courts have used two theories for proving sex discrimination claims: “disparate treatment” and “disparate impact” (Schlei & Grossman, 1983, at 1286-90).
In disparate treatment cases, the procedure for bringing a sex discrimination claim under Title VII may be summarized as follows (See Figure 1):First,the plaintiff must establish a presumption orprima faciecase of intentional discrimination by showing the following:
(1) she is a member of a protected class; (2) she was qualified for the position she sought; (3) she suffered an adverse employment action; and, (4) others similarly situated but outside the protected class were treated more favorably. (Alvarado v. Texas Rangers,2007, p. 611;Willis v. Coca Cola Enters., Inc.,2006, p. 420;Ptasnik v. City of Peoria,2004, p. 907;Urbano v. Cont’l. Airlines, Inc.1998, p. 206;Bouman v. Sherman Block,1991, p. 1223)
Second,the employer then has the burden of proving a “legitimate, non-discriminatory reason” for the action (Reeves v. Sanderson Plumbing Prods., Inc.,2000, p. 142;Arway v. Norwalk Department of Police Service,1997, p. 5;Bouman v. Sherman Block,1991, p. 1223;Texas Dept. of Community Affairs v. Burdine,1981, pp. 254-256). Third,if the employer is able to satisfy his/her burden, the plaintiff’sprima faciecase is rebutted, and the plaintiff must show to prevail that either: “(1) the employer’s proffered reason is not true but is instead a pretext for discrimination; or (2) that the employer’s reason, while true, is not the only reason for its conduct, and another ‘motivating factor’ is the plaintiff’s protected characteristic” (Rachid v. Jack in the Box, Inc., 2004, p. 308;Gu and Santoro v. Boston Police Department,2002, p. 11;Richmond v. Johnson,1997, p. 4;Bouman v. Sherman Block,1991, p. 1223).
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Figure 1- Disparate Treatment Sex Discrimination
Variations within the U.S. Courts of Appeals on Gender-Based Discrimination
According to both the Sixth and Seventh Circuit Court of Appeals, a plaintiff can show that the employer’s reason is mere pretext by showing any of the following:
the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct…. If a plaintiff can show that the defendant’s proffered, non-discriminatory reason is pretextual, the trier of fact may infer discrimination…. Nevertheless, the ultimate burden of proof to show discrimination remains on the plaintiff at all times. (Tysinger v. Police Department of the City of Zanesville,2006, p. 576;James v. Sheanan,1998, p. 1007)
In the Fifth Circuit and the Ninth Circuit Court of Appeals, the discriminatory motive must be a “significant factor” for the employment decision (Walsdorf v. Board of Commissioners for the East Jefferson Levee District,1988, p. 1052, footnote 1). On the other hand, in the First, Third, Sixth, and Seventh Circuits, the plaintiff must show that “he or she would have received the job absent the discriminatory motive” (Walsdorf v. Board of Commissioners for the East Jefferson Levee District,1988, p. 1052, footnote 1), but in the Eight Circuit, the employer may be made liable upon mere proof that “an unlawful motive played some part in the employment decision” (Bibbs v. Block,1985, p.1323).
On the other hand, disparate impact cases require a different judicial analysis (See Figure 2):First,the plaintiff must show a “substantial adverse impact on a protected class” (Kent County Sheriff’s Association v. County of Kent,1987, p. 1492). Second,the employer must prove a business necessity for the employment decision or practice, such as job-relatedness. Third,the plaintiff must then prove that there are other feasible alternatives with less adverse impact.
The Sixth Circuit Court of Appeals explained the difference between disparate treatment and disparate impact cases as follows:
When proceeding under a disparate treatment theory, the case usually focuses on an individual, ‘and the focus of the contest is on the employer’s motivation for the different action taken, with the plaintiff attempting to prove intentional bias and employer contending that its actions were based on a legitimate, nondiscriminatory reason’ (citations omitted). In adverse impact (or disparate impact) cases, there is ‘an attack on a specific [facially neutral] employment practice, such as a written scored test, or a specific objective requirement, such as a high school diploma requirement or a height and weight requirement’. (Kent County Sheriff’s Association v. County of Kent,1987, p. 1492)
Although private employers may rebut a prima facie case of discrimination under Title VII through proof of a legitimate, non-discriminatory reason, public employers may in fact be subjected to more stringent requirements. In order to rebut the presumption of discrimination, public employers, such as the state and federal criminal justice agencies may be required to show that such classifications are substantially related to an important government interest. Analysis of several decided cases show that some U.S. Circuit Courts of Appeals have applied the standards used under the Equal Protection Clause to Title VII actions. Rather than automatically applying the Supreme Court’s intermediate or quasi-suspect standard of review, however, District and Circuit Court decisions on the rebuttal proof required from public employers have varied across jurisdictions, some applying the rational basis test while others applying the strict scrutiny test.
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Figure 2- Disparate Impact Sex Discrimination
This article analyzes federal court decisions at the Supreme Court, Circuit, and District Court levels to ascertain what interests and rights are deemed adequate to rebut the employee’s prima facie case of discrimination. It also analyzes the standard of review used by federal courts when examining gender-based classifications within criminal justice agencies. Employment practices in the criminal justice system are classified depending on the stage of the employment process: hiring decisions, terms and conditions of actual employment (such as pay and benefits, job assignments, promotions and transfer) and termination of employment. The article concludes by identifying the circumstances under which the courts have held that a given employment policy or employee treatment is or is not deemed sex discrimination.
Sex Discrimination Due to Disparate Impact
Under the disparate impact theory of sex discrimination, various federal courts have used Title VII to examine the legality of employment practices by criminal justice agencies. The legal analysis centers on whether the burden shifting procedures have been met in cases involving job exclusion and job limitation policies, minimum height and weight requirements, strength and physical fitness tests, oral interviews, written examinations, educational requirements, and grooming policies. Thus, the plaintiffs in these cases were first required to prove disparate impact through statistical or other evidentiary means. The defendants were then required to prove the business necessity or job-relatedness of the requirements. Finally, the plaintiffs could rebut through proof of other feasible alternatives with less disparate impact. Failure of the plaintiff to prove disparate impact or availability of feasible alternatives through adequate evidence led to the courts to rule that there was no sex discrimination. On the other hand, failure of the defendant to prove business necessity led the courts to rule that there was sex discrimination.
Job Exclusion due to Possibility of Assault on Female Criminal Justice Employees
In several cases, the criminal justice employer was able to prove the business necessity or job-relatedness of the exclusion of females from certain positions. InDothard v. Rawlinson(1977), the Supreme Court ruled that the possibility of female employees being subjected to sexual assault by inmates justified their exclusion from certain jobs. Due to the accessibility and high amount of contacts between corrections officers and inmates, there was a high risk of the officer being assaulted by inmates; thus, exclusion of women from these jobs was justified.
InDothard v. Rawlinson(1977), the Supreme Court expressly stated that the gender requirement was a bona fide occupational qualification under Title VII for the position of prison guard in Alabama’s all-male penitentiary. Exclusion of females from the job was justified due to the “high risk of assault of female officers,” the need for maintaining “control and security of the penitentiary,” and “protection of its inmates and the other security personnel” (pp. 334-337). The Court also noted that the prison conditions, including the accessibility of guards by inmates, lack of manpower to maintain security, and the random distribution of sex offenders among the inmate population posed a high risk of assault to female officers.
At the district court level, the courts upheld the exclusion of females from the position of corrections officer due to the need of protecting not only the officer (Iowa Dept. of Social Services, Iowa Men's Reformatory v. Iowa Merit Employment Dept., 1977) but also the interests of the corrections facility and the inmates (Long v. State Personnel Board,1974). The district court ruled that an employer was not required to “alter substantially his facility and procedure to suit the sex of the person involved” (Long v. State Personnel Board,1974, p. 1015).
InLong v. State Personnel Board(1974), exclusion of females from the position of Protestant Chaplain at an all-male state youth correctional facility was allowed. The district court stated that, by itself, the possibility of sexual assault of the female chaplain would not justify the exclusion of females from the job. However, other factors make exclusion of females from the job necessary. Thus, the court considered the following: (1) effect on the ward and the possibility that he will become a recidivist if he commits sexual assault on the officer; and (2) erosion of public confidence in the security and order of the facility and the effectiveness of its programs in rehabilitating the wards in case a sexual assault occurs within its premises. The court also “rejected the argument that adjustments, such as the hiring of security guards, the extension of alarm systems, the moving of buildings, and the changing of procedures, could be made to prevent sexual attacks, stating that an employer was not required to alter substantially his facility and procedure to suit the sex of the person involved” (Long v. State Personnel Board,1974, p. 1015). A peculiar aspect of the court’s ruling was its use of strict scrutiny under the U.S. Constitution’s Equal Protection Clause instead of Title VII’s disparate impact requirements of sex discrimination. The court ruled that,