Alaska Employment Law

After an internal investigation revealed that male guards had sexually abused female prisoners, and that supervisors had tolerated such, the Nevada correctional authorities changed the job qualifications to require that 70 % of guard and 100 % of lieutenant positions had to be filled with women. Male correctional employees challenged the change to the lieutenant qualifications. The state defended on the basis of bona fide occupational qualifications.

The 9th Circuit has now invalidated the women-only requirement for the lieutenant position, for the following reasons.

1) The state failed to show that “all or nearly all” men would tolerate sexual abuse by male guards, or that it is “impossible or highly impractical” to assess applicants individually for this qualification.

2) There’s no “basis in fact” to believe that lieutenants are particularly likely, themselves, to sexually abuse inmates.

3) The state’s theory - that women have an “instinct” that makes them less susceptible to manipulation by female inmates - “relies on the kind of unproven and invidious stereotype that Congress tried to eliminate from employment decisions when it enacted Title VII.

Breiner v. Nevada Dep’t of Corrections, ___ F.3d ___ (9th Cir. July 8, 2010)