Mercy Ambat, et al v. City and County of San Franci

Filing

FILED OPINION (STEPHEN S. TROTT, SIDNEY R. THOMAS and MARY H. MURGUIA)AFFIRMED in part, REVERSED in part, VACATED in part, DISMISSED in part, and REMANDED for further proceedings. Each party shall bear its own costs. Judge: MHM Authoring. FILED AND ENTERED JUDGMENT. [9153496] [11-16746, 11-16752, 11-17330]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MERCY AMBAT,

No. 11-16746
Plaintiff,
D.C. No.
3:07-cv-03622-SI

and
ZAINABU ANDERSON; SHARON
CASTILLO; JOANNA CROTTY; PATTI
FLYNN; TERESA FOX; LISA JANSSEN;
RICHARD LEE; GLORIA MARTIN;
ANTHONY PEPPERS; MATTIE SPIRESMORGAN; YVETTE WILLIAMS;
ROLAND ZANIE; PAMELA WALKER;
GWENDOLYN HARVEY-NOTO;
JENNIFER KEETON; OLGA KINCADE;
EMIKO THEODORIDIS; MARTHA
ORTEGA,
Plaintiffs-Appellants,
v.
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant-Appellee.
MERCY AMBAT,

No. 11-16752
Plaintiff,
and

D.C. No.
3:07-cv-03622-SI

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JON GRAY,
Plaintiff-Appellant,
v.
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant-Appellee.
MERCY AMBAT,

No. 11-17330
Plaintiff,
and

ZAINABU ANDERSON; SHARON
CASTILLO; JOANNA CROTTY; PATTI
FLYNN; TERESA FOX; LISA JANSSEN;
RICHARD LEE; GLORIA MARTIN;
ANTHONY PEPPERS; MATTIE SPIRESMORGAN; YVETTE WILLIAMS;
ROLAND ZANIE; PAMELA WALKER;
GWENDOLYN HARVEY-NOTO;
JENNIFER KEETON; OLGA KINCADE;
EMIKO THEODORIDIS; MARTHA
ORTEGA,
Plaintiffs-Appellants,
v.
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant-Appellee.

D.C. No.
3:07-cv-03622-SI

OPINION

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Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted
December 4, 2013—San Francisco, California
Filed July 2, 2014
Before: Stephen S. Trott, Sidney R. Thomas,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia

SUMMARY*

Employment Discrimination
The panel affirmed in part, reversed in part, and vacated
in part the district court’s judgment in favor of the City and
County of San Francisco, and dismissed plaintiffs’ appeal in
part, in a Title VII case in which deputies of the San
Francisco Sheriff’s Department challenged a policy
prohibiting male deputies from supervising female inmates in
the housing units of the Sheriff’s Department’s jails.
The panel reversed the district court’s grant of summary
judgment to the County on sex discrimination claims and
derivative claims and vacated the denial of summary
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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judgment to plaintiffs on those claims. The panel held that
the County was unable to bear its burden of demonstrating
that there was no genuine issue of material fact as to whether
it was entitled to a “bona fide occupational qualification”
defense. The panel concluded that there were genuine issues
of material fact as to whether a reasoned decision-making
process, based on available information and experience, led
to the Sheriff’s adoption of the policy, such that it would be
entitled to deference. There were also genuine issues of
material fact as to whether excluding male deputies because
of their sex was a legitimate substitute for excluding them
because they were actually unfit to serve in the female
housing pods.
The panel dismissed plaintiffs’ appeal from various
evidentiary rulings because, in light of the panel’s reversal of
the district court’s grant of summary judgment, plaintiffs
could not establish prejudice.
The panel affirmed the district court’s award of attorney’s
fees as to settled claims.
The panel affirmed the district court’s grant of summary
judgment on one plaintiff’s retaliation claims.

COUNSEL
Lawrence D. Murray (argued) and Robert C. Strickland,
Murray & Associates, San Francisco, California, for
Plaintiffs-Appellants Mercy Ambat, et al.

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Daniel H. Bromberg (argued) and Timothy A. Butler, Quinn
Emanuel Urquhart & Sullivan, LLP, Redwood Shores,
California, for Plaintiff-Appellant John Gray.
Dennis J. Herrera, City Attorney; Elizabeth S. Salveson,
Chief Labor Attorney; and Rafal Ofierski, Deputy City
Attorney (argued), San Francisco, California, for DefendantAppellee.

OPINION
MURGUIA, Circuit Judge:
Plaintiffs, current and former deputies of the San
Francisco Sheriff’s Department (“SFSD”), appeal the district
court’s order granting summary judgment to the City and
County of San Francisco (the “County”) on their challenge to
SFSD’s policy prohibiting male deputies from supervising
female inmates in the housing units of SFSD’s jails. The
district court concluded that SFSD’s policy did not violate
Title VII’s prohibition on sex discrimination because it fell
within the statute’s “bona fide occupational qualification”
exception, 42 U.S.C. § 2000e-2(e)(1). We reverse the district
court’s grant of summary judgment to the County on the sex
discrimination claims and vacate the denial of summary
judgment to plaintiffs on those claims.
I. Facts and Procedural History
In October 2006, SFSD implemented a new policy
prohibiting male deputies from supervising female inmates in
the housing units of the jails operated by the County (the
“Policy”). Single-sex staffing policies in correctional

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facilities are not new, and we have considered before whether
such polices violate Title VII by impermissibly
discriminating on the basis of sex. See Breiner v. Nevada
Dep’t of Corr., 610 F.3d 1202 (9th Cir. 2010) (holding policy
violated Title VII); Robino v. Iranon, 145 F.3d 1109 (9th Cir.
1998) (per curiam) (holding policy did not violate Title VII).
The adoption of the Policy coincided with SFSD’s plan to
consolidate all of its female inmates within a single facility,
County Jail 8 (“CJ8”). CJ8 has a “direct supervision” design,
meaning that its housing units, or “pods,” are composed of
cells or sleeping bays arrayed around a central congregation
space. Each pod has two tiers and between 56 and 88 beds.
At the center of the pod is a podium from which a deputy can
see into common areas and into the cells and sleeping bays.
Each pod is staffed by two deputies, one of whom remains at
the podium while the other makes rounds. Female inmates
fill some, but not all, of the available housing pods in CJ8.
Even though CJ8 is not single-sex, all of its pods are singlesex. This is consistent with SFSD’s long-standing practice of
segregating female and male inmates.
Although housing pods are single-sex, CJ8’s pod for
inmates receiving medical or psychiatric care is not sexsegregated. Male deputies are not permitted under the Policy
to work with female inmates in the housing pods; however,
male deputies may be assigned to the mixed-sex medical pod
or assigned to transport female inmates between CJ8 and
other locations. Male deputies may also enter female housing
pods in some circumstances, such as to assist with feeding
female inmates.

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According to San Francisco Sheriff Michael Hennessey
(the “Sheriff”), who had held his position since 1980,1 he
adopted the Policy for four reasons: (1) to protect the safety
of female inmates from sexual misconduct perpetrated by
male deputies, (2) to maintain the security of the jail in the
face of female inmates’ ability to manipulate male deputies
and of the deputies’ fear of false allegations of sexual
misconduct by the inmates, (3) to protect the privacy of
female inmates, and (4) to promote the successful
rehabilitation of female inmates.
Of the four reasons the Sheriff claims led him to enact the
Policy, he identified protecting the safety of inmates from
sexual misconduct as the most important. As the County
pointed out, between 2001 and 2009, SFSD investigated
twelve complaints of sexual misconduct or inappropriate
sexual relationships between a male deputy and a female
inmate. Ten of those incidents occurred before the Policy
was implemented in 2006, and two occurred after. Notably,
four of the twelve incidents occurred in 2005, the year
immediately preceding the implementation of the Policy.
SFSD sustained the allegations of misconduct and disciplined
deputies in two of the incidents: a 2001 incident in which a
male deputy had an inappropriate relationship with a female
inmate with the intent to “cultivate a sexual relationship” and
a 2007 incident, after the Policy had been adopted, in which
a male deputy was present during a female inmate’s strip
search. Three additional investigations were followed by a
deputy’s resignation; these concerned inappropriate contact
or sex acts. SFSD also faced lawsuits in 2000 and 2005
alleging that male deputies had engaged in unlawful sexual
misconduct with female inmates.
1

Sheriff Hennessey no longer holds this office.

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With this concern for inmate safety in mind, the Sheriff
asserts that he considered three responses, apart from
enacting the Policy, to the problem of protecting female
inmates from sexual misconduct: (1) implementing additional
screening of male deputies to determine whether they were
likely to engage in sexual misconduct with female inmates,
(2) installing additional surveillance cameras to monitor
activities in CJ8’s housing pods, and (3) providing additional
training to deputies. However, he claims to have rejected
each of these alternatives as ineffective or unfeasible, so he
proceeded to implement the Policy.
In July 2007, 35 deputies – a majority of whom were
female – filed suit against the County, alleging that the policy
constituted sex discrimination in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e2(a), and the California Fair Employment and Housing Act
(“FEHA”), Cal. Gov. Code § 12940. Title VII and FEHA
both make it “unlawful, with narrow exceptions, ‘to fail or
refuse to hire . . . any individual, or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual’s . . . sex.’” Breiner, 610 F.3d at 1207
(quoting 42 U.S.C. § 2000e-2(a)(1)).2 Plaintiffs claimed that
the Policy directly caused them a variety of harms related to
the conditions of their employment. For example, they
claimed that staffing restrictions caused by the Policy resulted
in loss of control over when overtime was available or
required, loss of opportunities to develop career-enhancing
experience, and loss of preferred shifts and regular days off

2

Because FEHA is interpreted consistently with Title VII, see Guz v.
Bechtel Nat’l Inc., 8 P.3d 1089 (Cal. 2000), we conduct our analysis of
both federal and state claims according to Title VII case law.

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previously earned by seniority. Plaintiffs made additional
claims based on their sex discrimination claims: for unlawful
employment restrictions under Title VII and FEHA and for
failure to prevent a violation of FEHA.
In response, the County first argued that any harm
suffered by plaintiffs as a result of the Policy was exceedingly
minor, or de minimis, and so was not actionable. Although it
did not dispute that the Policy discriminates against deputies
on the basis of sex, the County further argued that the
discrimination that resulted from the Policy was permissible
under the “bona fide occupational qualification” (“BFOQ”)
exception to Title VII and FEHA. See 42 U.S.C. § 2000e2(e)(1) (“[I]t shall not be . . . unlawful . . . for an employer to
hire and employ employees . . . on the basis of . . . sex . . . in
those certain instances where . . . sex . . . is a bona fide
occupational qualification reasonably necessary to the normal
operation of that particular business or enterprise.”). Where
courts have permitted sex-based staffing restrictions in
corrections facilities, it has typically been because the courts
concluded that sex was a BFOQ for the staff positions at
issue. See, e.g., Robino, 145 F.3d at 1111; Everson v. Mich.
Dep’t of Corr., 391 F.3d 737, 761 (6th Cir. 2004).
Both parties moved for summary judgment, and the
district court ruled that the County was entitled to summary
judgment on plaintiffs’ discrimination claims because it had
made out a valid BFOQ defense. See Ambat v. City of S.F.,
693 F. Supp. 2d 1130, 1141 (N.D. Cal. 2010) (“Ambat I”).
The district court “emphasiz[ed] that [it] is not charged with
determining whether the Policy was the best means of
addressing the problems the Sheriff and Undersheriff [Jan
Dempsey] were seeking to remedy. Rather, the [district
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actions were lawful.” Id. at 1138-39. The district court also
granted summary judgment to the County on plaintiffs’ Title
VII and FEHA claims that were derivative of their
discrimination claims. Id. at 1142. Because it had granted
the County’s motion, the district court denied plaintiffs’
motion for summary judgment on these claims. Id. at 1141.
II. Title VII Claim
We review de novo the district court’s grant of summary
judgment to the County and denial of summary judgment to
plaintiffs on their employment discrimination claims. Guatay
Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957,
970 (9th Cir. 2011). “In doing so we are governed by the
same principles as the district court: whether, with the
evidence viewed in the light most favorable to the
non-moving party, there are no genuine issues of material
fact, so that the moving party is entitled to a judgment as a
matter of law.” San Diego Police Officers’ Ass’n v. San
Diego City Emp. Ret. Sys., 568 F.3d 725, 733 (9th Cir. 2009)
(citing Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922
(9th Cir. 2004)).
We reverse the district court’s grant of summary
judgment to the County on plaintiffs’ sex discrimination
claims and derivative claims. The County was not entitled to
summary judgment because it was unable to bear its burden
of demonstrating that there was no genuine issue of material
fact as to whether it was entitled to a BFOQ defense.
Because the district court’s conclusion that the County was
entitled to a BFOQ defense was also the basis for its denial of
plaintiffs’ motion for summary judgment, we also vacate the
district court’s denial of plaintiffs’ motion.

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A. De Minimis Harm
Because the district court concluded that the County was
entitled to a BFOQ defense, it did not rule on whether the
County was entitled to a de minimis harm defense. We
decline to rule on this defense in the first instance.
B. Bona Fide Occupational Qualification Defense
Although Title VII prohibits employment discrimination
on the basis of sex in most instances, it permits discrimination
where “sex . . . is a bona fide occupational qualification
reasonably necessary to the normal operation of [the
defendant’s] particular business or enterprise.” 42 U.S.C.
§ 2000e-2(e)(1); see also Cal. Gov. Code § 12940 (excepting
discrimination “based upon a bona fide occupational
qualification” from prohibition against employment
discrimination). For example, Title VII would not compel a
producer to audition men for a female role in a film, because
being female could be a BFOQ for playing that role. See 29
C.F.R. § 1604.2(a)(2).
Nevertheless, “[t]he BFOQ defense is written narrowly,
and [the Supreme Court] has read it narrowly.” Int’l Union,
United Auto., Aerospace & Agric. Implement Workers of Am.,
UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991)
(citations omitted). A BFOQ can be established only by
“objective, verifiable requirements [that] concern job-related
skills and aptitudes.” Id. at 201.
When the district court granted summary judgment to the
County, it did so on the basis that being female was a BFOQ
for supervising female inmates in CJ8. In reaching its
conclusion, the district court granted considerable deference

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to the judgment of the Sheriff, who had asserted that the
Policy was necessary to protect the safety of female inmates,
the security of the jails, the privacy of female inmates, and
the ability of female inmates to be rehabilitated. Ambat I,
693 F. Supp. 2d at 1135. Because protecting these interests
was part of the normal operation of San Francisco’s jails, and
because the Sheriff had determined that it was reasonably
necessary to keep men out of supervisory roles in female
housing pods in order to protect these interests, the district
court reasoned that the County had proven that being female
was indeed a BFOQ under these limited circumstances. Id.
at 1141.
Soon after the district court granted summary judgment,
we considered a similar Title VII claim in Breiner. At issue
there was a policy implemented by the Nevada Department
of Corrections (“NDOC”) that prohibited men from serving
as correctional lieutenants in a women’s prison. 610 F.3d at
1205. The policy was implemented in the wake of a scandal
arising from the prison’s “uninhibited sexual environment,”
which had resulted in a female inmate’s becoming pregnant.
Id. at 1204–05. The NDOC justified its policy on three bases:
“(1) male correctional lieutenants are likely to condone
sexual abuse by their male subordinates; (2) male correctional
lieutenants are themselves likely to sexually abuse female
inmates; and (3) female correctional lieutenants possess an
‘instinct’ that renders them less susceptible to manipulation
by inmates and therefore better equipped to fill the
correctional lieutenant role.” Id. at 1211. We reversed the
district court’s grant of summary judgment to NDOC because
NDOC ha[d] not met its burden of showing “a
basis in fact” for concluding that all male
correctional lieutenants would tolerate sexual

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abuse by their subordinates; that all men in
the correctional lieutenant role would
themselves sexually abuse inmates; or that
women, by virtue of their gender, can better
understand the behavior of female inmates.
Nor ha[d] it refuted the viability of
alternatives that would achieve that goal
without impeding male employees’
promotional opportunities.
Id. at 1216 (quoting Dothard v. Rawlinson, 433 U.S. 321, 335
(1977)).
In reaching our decision, we employed a two-pronged test
for whether an employer had met its burden of proving that
sex was a BFOQ:
To justify discrimination under the BFOQ
exception, an employer must “prove by a
preponderance of the evidence: 1) that the job
qualification justifying the discrimination is
reasonably necessary to the essence of its
business; and 2) that [sex] is a legitimate
proxy for the qualification because (a) it has a
substantial basis for believing that all or
nearly all [men] lack the qualification, or . . .
(b) it is impossible or highly impractical . . . to
insure by individual testing that its employees
will have the necessary qualifications for the
job.”

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Id. at 1210 (alterations in original) (quoting EEOC v. Boeing
Co., 843 F.2d 1213, 1214 (9th Cir. 1988)).3
After “surveying . . . decisions applying the BFOQ
exception in the prison context,” we observed that “even in
the unique context of prison employment, administrators
seeking to justify a BFOQ must show ‘a high correlation
between sex and ability to perform job functions.’” Id. at
1211–13 (quoting Johnson Controls, 499 U.S. at 202). We
also recognized that it would be impossible to prove a BFOQ
defense without “demonstrat[ing] that . . . alternative
approaches . . . are not viable.” Id. at 1215.
In light of our decision in Breiner, plaintiffs moved for
reconsideration of the district court’s summary judgment
rulings on their sex discrimination claims. The district court
denied the motion, concluding that Breiner was factually
distinguishable from this case and so did not compel a
different result. Ambat v. City of S.F., 2010 WL 3340549 at
*3 (N.D. Cal. Aug. 25, 2010) (“Ambat II”). Although we
agree that the facts in these two cases are not identical, we
conclude that Breiner controls our decision here and provides
the correct analytic framework for evaluating the County’s
motion for summary judgment. However, before we consider
the justifications for the Policy that the County has advanced
under our two-step BFOQ inquiry, we must first address the
issue of the deference owed to the Sheriff’s judgment in
implementing the Policy.

3

We initially adopted this test for the purpose of evaluating sex
discrimination claims under Title VII in 1980. See Harriss v. Pan Am.
World Airways, Inc., 649 F.2d 670, 676 (9th Cir. 1980).

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1. Deference to the Sheriff’s Judgment
“Judgments by prison administrators that ‘are the product
of a reasoned decision-making process, based on available
information and experience,’ are entitled to some deference.”
Breiner, 610 F.3d at 1212 n.6 (quoting Robino, 145 F.3d at
1110); see also Henry v. Milwaukee Cnty., 539 F.3d 573,
580–81 (7th Cir. 2008) (“[T]he administrators of female
correctional facilities . . . are entitled to substantial deference
when fashioning policies to further the goals of the facility. . .
[H]owever, . . . the discretion accorded to these individuals
. . . is [not] effectively unlimited. A defendant ultimately
must introduce sufficient evidence to prove that the
administrator’s judgment . . . is ‘the product of a reasoned
decision-making process, based on available information and
experience.’” (quoting Torres v. Wisconsin Dep’t of Health
& Soc. Servs., 859 F.2d 1523, 1532 (7th Cir. 1988))).
Deference often plays a significant role in supporting a
BFOQ defense in the corrections context, and we do not
downplay the importance of respecting the judgment of the
officials who are most knowledgeable about how best to
address the challenges posed by a particular institution.
Nevertheless, such deference is not automatic. We require
that such a judgment be the result of a “reasoned
decision-making process, based on available information and
experience,” Breiner, 610 F.3d at 1214; otherwise, deference
to that judgment cannot play a role in our BFOQ inquiry.
Here, the record demonstrates that there are genuine
issues of material fact as to whether or not such a process led
to the Sheriff’s adoption of the Policy. In support of SFSD’s
decision-making process, the Sheriff asserts that he discussed
the Policy with Undersheriff Dempsey, the Chief of the

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Custody Division, and jail commanders for “months.” He
also claims to have consulted “incident reports of misconduct
or alleged misconduct.” However, while the prevention of
sexual misconduct was offered by the Sheriff as his primary
reason for adopting the Policy, SFSD did not conduct any
internal surveys or studies to determine the extent of that
misconduct. Neither the Sheriff nor Undersheriff Dempsey
attempted to consult the deputies directly responsible for
supervising the inmates in order to learn from their front-line
experience. Further, the Sheriff testified that he did not
consult any outside sources – not even his counterparts in
other jurisdictions who may have considered similar policies
– with the exception that the Undersheriff communicated to
him that she had contacted an uncertain number of other
California sheriff’s departments to ask about whether they
had implemented similar policies. The Sheriff also testified
that he had read about incidents of sexual abuse in the
Michigan prison system, but that he did not do so until after
the Policy was implemented and that his reading “reinforced”
rather than informed his decision to implement the Policy.
Determining whether a corrections official is entitled to
deference is a fact-intensive and case-specific inquiry;
accordingly, it is generally within the discretion of the district
court to determine which factors are relevant. The district
court observed that it had “uncovered no case holding that a
correctional official must undertake a particular type of study
or consultation,” Ambat I, 693 F. Supp. 2d at 1138 (emphasis
in original), and we are not arriving at a contrary holding.
That is to say, we are not concluding that the decision-making
process supporting a discriminatory policy needs to take any
particular form. However, it is significant that the extent of
the Sheriff’s efforts to ensure that his judgment was the result
of available information and experience contrasts sharply

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with the efforts undertaken by other officials implementing
similar policies that have withstood Title VII challenges on
BFOQ grounds. See, e.g., Robino, 145 F.3d at 1111 (“To
comply with an EEOC settlement, [corrections officials]
conducted an extensive survey of post duties before
determining which posts should be designated female-only.”);
Everson, 391 F.3d at 741–45 (describing how three studies
were conducted, including one pursuant to a settlement with
the DOJ); cf. Torres, 859 F.2d at 1531–32 (holding that
prison officials were required to “innovate” in order to serve
the rehabilitative interests of the female inmates, because
empirical studies concerning the rehabilitation of female
inmates “simply did not exist” at the time).
The district court appears to have granted the Sheriff’s
judgment deference based primarily on his substantial
qualifications, rather than on the characteristics of the
decision-making process itself. This reasoning is not
consistent with our precedent, which conditions deference on
whether the decision-making process itself was reasoned and
well-informed. See Breiner, 610 F.3d at 1214; Robino,
145 F.3d at 1110. While we need not decide precisely how
“reasoned” the decision-making process must be, nor how
much of the “available information and experience” a
corrections official must consider before implementing a
facially discriminatory policy, the record before us now
clearly exhibits a genuine dispute over whether the Policy
resulted from a “reasoned decision-making process, based on
available information and experience.” Breiner, 610 F.3d at
1214 (quoting Robino, 145 F.3d at 1110). Considering the
evidence in the record in the light most favorable to the
plaintiffs, as we must on the County’s motion for summary
judgment, a trier of fact could conclude that the Sheriff’s
judgment was not preceded by a decision-making process that

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was sufficiently reasoned in proportion to the seriousness of
imposing the Policy. Similarly, a trier of fact could also
conclude that the seriousness of imposing the Policy required
the Sheriff to make a greater effort to avail himself of the
information and experience readily available to him – such as
by conducting relevant surveys or studies, as in Robino and
Everson, or by consulting with officials in other jurisdictions
who had considered or implemented policies like the one he
ultimately implemented, as plaintiffs suggest.
Thus, because a trier of fact considering the evidence in
the light most favorable to plaintiffs could conclude that the
decision-making process was either insufficiently reasoned or
insufficiently based on available information and experience,
the County cannot meet its burden of showing that the
Sheriff’s judgment is entitled to deference as a matter of law,
and the County may not rely on such deference in meeting its
burden of showing that there are no genuine disputes of fact
as to whether it can satisfy our two-step BFOQ inquiry.
2. Job Qualifications Reasonably Necessary to the
Essence of Operating San Francisco’s Jails
Although deference to the Sheriff’s judgment cannot play
a role in our analysis, it is still necessary for us to consider
each rationale that has been offered by the County in order to
determine whether the County is able to satisfy our BFOQ
inquiry based solely on the evidence in the record. We must
consider each of the four rationales offered by the County in
order to determine (1) whether any rationale suggests a job
qualification reasonably necessary to the essence of operating
SFSD’s jails, and, if so, (2) whether sex is a legitimate proxy
for determining whether a deputy actually has that
qualification. Breiner, 610 F.3d at 1210.

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In considering each of the County’s rationales, the County
easily meets its burden, as a matter of law, of demonstrating
that there are job qualifications derived from the four
justifications that are reasonably necessary to the essence of
operating SFSD’s jails. Each of the four justifications that
the Sheriff claims drove his decision to implement the Policy
– protecting female inmates from sexual misconduct by male
deputies, maintaining jail security, protecting inmate privacy,
and preserving the ability of female inmates to rehabilitate –
is essential to the operation of a corrections facility and has
been recognized as justifying facially discriminatory policies
in other contexts. See Dothard, 433 U.S. at 335 (security);
Robino, 145 F.3d at 1111 (safety, security, privacy,
rehabilitation); Everson, 391 F.3d at 750 (safety, security,
privacy, rehabilitation).
Based on these important rationales for the Policy, we
have no difficulty in identifying four “job qualification[s] . . .
reasonably necessary to the essence of” operating SFSD’s
jails, any of which would satisfy the first prong of our test.
Breiner, 610 F.3d at 1210.
These qualifications
corresponding to the four rationales are (1) not posing a threat
to the safety of female inmates due to a likelihood of
perpetrating sexual misconduct against them; (2) not posing
a threat to jail security; (3) not posing a threat to female
inmates’ privacy; and (4) not posing a threat to female
inmates’ ability to rehabilitate. We now consider each of
these four qualifications under the second prong of our test to
determine whether there is any genuine dispute of material
fact as to whether being male is a “legitimate proxy” for any
of them.

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3. Whether Sex Is a Legitimate Proxy for
Reasonably Necessary Job Qualifications

The County may show that excluding all male deputies is
a “legitimate proxy” for excluding deputies who lack one of
the four qualifications if there is (a) “a substantial basis for
believing that all or nearly all [men] lack the qualification” or
(b) “it is impossible or highly impractical . . . to insure by
individual testing” whether or not a male deputy has the
qualification. Id. at 1210 (alteration in original). We also
note that it is impossible to satisfy the “legitimate proxy”
prong if there is no “concrete, logical basis for concluding
that gender restrictions are ‘reasonably necessary,’” id. at
1212, or if alternatives have not been reasonably considered
and refuted, id. at 1216.
The County asserts that the primary reason for the
Sheriff’s adoption of the Policy was to protect the safety of
female inmates by reducing the possibility of sexual
harassment and abuse by male deputies. While there is no
question that this is an extremely important interest, the
County has not met its burden of showing that there is no
genuine dispute over whether excluding men from
supervisory positions in female housing units is a legitimate
proxy for requiring that deputies in those positions not pose
a threat to the safety of female inmates. More specifically, at
this stage of the proceeding, the County has not shown that
the Sheriff had “a substantial basis for believing that all or
nearly all” male deputies were likely to engage in sexual
misconduct with female inmates, nor has it shown that “it is
impossible or highly impractical . . . to insure by individual
testing” that a male deputy does not pose such a threat. Id. at
1210.

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The statistics on sexual misconduct perpetrated by male
deputies against female inmates in SFSD’s jails are deeply
troubling. The record shows that in the five years preceding
the implementation of the Policy, ten allegations of sexual
misconduct were made; two more allegations were made the
year after the Policy was implemented. A substantial portion
of these allegations were sustained or were followed by a
deputy’s resignation. We also accept that it is reasonable to
assume, as the County argues, that other instances of
misconduct may have gone unreported.
Nevertheless, these statistics by themselves do not prove
that “all or substantially all” male deputies are likely to
perpetrate sexual misconduct. To suggest that all or most
male deputies pose such a threat would amount to “the kind
of unproven and invidious stereotype that Congress sought to
eliminate from employment decisions when it enacted Title
VII.” Breiner, 610 F.3d at 1211.
On this record, the County is also unable to show that
there is no genuine dispute as to whether it is impossible or
highly impractical to insure by individual testing that a male
deputy does not have a propensity to perpetrate sexual
misconduct. We have observed that background checks,
which all deputies must undergo, are among “prison
administrators[’] . . . multiple resources . . . to ensure
compliance with institutional rules.” Breiner, 610 F.3d at
1215. As the County points out, peace officer candidates
must also undergo psychological examinations.
While conceding that background checks and
psychological testing are used for the purpose of screening
for a propensity to perpetrate sexual misconduct, the County
suggests that such screening mechanisms are inadequate

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because they are unable to detect all potential perpetrators.
Removing every deputy with any potential for engaging in
misconduct may be a laudable goal, but that goal is
insufficient to justify a policy that discriminates in such broad
strokes. Rather, we have observed that a BFOQ defense
cannot be maintained if available testing offers “a practical
reliable differentiation of the unqualified from the qualified
applicant, [even if it is] not a perfect differentiation.” See
E.E.O.C. v. L.A. Cnty., 706 F.2d 1039, 1040, 1043 (9th Cir.
1983) (internal citation and quotation marks omitted). The
record before us does not resolve the genuine dispute over
whether the tests that are presently used or that could be used
by SFSD would permit it to make a practical reliable
differentiation between those who are likely to engage in
sexual misconduct and those who are not.
The County also argues that employing male deputies in
the female housing pods poses a threat to jail security. In so
arguing, it points to two specific assertions offered by the
Sheriff. First, the Sheriff expressed concern that male
deputies were particularly vulnerable to manipulation by
female inmates, potentially leading them to overlook conduct
in violation of jail regulations, such as smuggling contraband
into the jail. Second, he claimed that the consequence of
male deputies’ fear of being accused of sexual misconduct
could be that those deputies would be unwilling to supervise
female inmates as closely as necessary, leading to an even
greater risk of female inmates being able to violate jail rules.
However, the record on summary judgment is insufficient
to demonstrate that there is no genuine dispute as to whether
“all or substantially all” male deputies would be vulnerable
to manipulation by female inmates or as to whether it would
be “impossible or highly impractical” to test for whether a

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male deputy is manipulable. The County has introduced no
evidence, even in the declarations of SFSD officials, that
would support this conclusion. Likewise, the County has
failed to demonstrate that there is no genuine dispute over
whether “all or substantially all” male deputies would be
influenced by fear of false allegations, or over whether it
would be “impossible or highly impractical” to test for such
behavior. The Sheriff himself acknowledged that he has “no
idea” how widespread this purported problem is. He also
admitted that he is unaware of whether any efforts were made
within SFSD to explore non-discriminatory alternatives to the
Policy for the purpose of mitigating the potential effect of
false allegations leveled at male deputies. Thus there is a
genuine question as to whether the County is able to “refute[]
the viability of [non-discriminatory] alternatives.” Breiner,
610 F.3d at 1216.
The County’s third justification for the Policy is
protecting the privacy interests of female inmates. However,
the record does not demonstrate that there is an actual risk of
female inmates’ privacy being compromised by male
deputies. SFSD has policies in place to prevent male deputies
from taking on duties, such as strip searches, that might
violate the privacy of female inmates. The inmates are
required to remain clothed at all times, except when
showering. When showering or using the toilet, inmates’
bodies are covered by a privacy screen.
The Sheriff claims that the use of privacy screens
compromises jail security, but there is a genuine dispute as to
whether privacy screens actually do compromise jail security
where, as here, the screens remained in use even after the
Policy was adopted. See Torres, 859 F.2d at 1526 (finding
that a BFOQ defense could not be sustained over privacy

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concerns where “the [district] court noted that [corrections
officials] continued to allow [female] inmates to use privacy
cards even after the BFOQ program [requiring female guards]
had been installed, thus rebutting the argument that the
presence of male guards reduced observation of the
inmates”).
The County’s final justification for the Policy is
promoting the rehabilitation of female inmates. The Sheriff
asserts that he was concerned that surveillance by male
deputies could traumatize female inmates, particularly those
who had suffered physical or sexual abuse in the past. The
County introduced evidence that a disproportionately high
number of female inmates had suffered such abuse.
Nevertheless, there is a genuine dispute over whether
excluding male deputies is a legitimate proxy for excluding
deputies who would interfere with female inmates’
rehabilitation.
A “staffing restriction . . . must match . . . ‘job functions’
with a high degree of specificity to be found reasonably
necessary.” Breiner, 610 F.3d at 1213 (quoting Johnson
Controls, 499 U.S. at 202). In this situation, SFSD has
separated the functions of supervising the inmates in the
housing pods from the functions of providing rehabilitative
programming to the inmates, such as through a high school
program, support groups, and parenting classes. Further,
there is no evidence in the record that the individuals staffing
the rehabilitative programs, some of which are staffed by
independent contractors, are themselves required to be
female. If female inmates were supervised by men in their
rehabilitative programs while the Policy was in effect, that
fact alone would defeat the County’s argument that excluding
men from supervisory roles was necessary to promote female

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inmates’ rehabilitation. See Henry, 539 F.3d at 582-83
(“[I]nconsistencies in implementation cast a significant doubt
on whether the policy is reasonably necessary.”). As
plaintiffs observe, there is also conflicting expert testimony
over whether isolating female inmates from men might in fact
impede the inmates’ efforts at rehabilitation; for example,
plaintiffs’ expert discussed research indicating that the
presence of male officers might itself promote the
rehabilitation of female inmates.
C. Conclusion
The justifications offered by the County in support of the
Policy each speak to extremely important concerns, and the
Sheriff is to be commended for his attention to the welfare of
female inmates in San Francisco’s jails. However, the fact
that the Policy seeks to advance such important goals as
inmate safety is not, by itself, sufficient to permit
discrimination on the basis of sex. When moving for
summary judgment, the County bears the heavy burden of
showing that there are no genuine issues of material fact as to
whether excluding male deputies because of their sex is a
legitimate substitute for excluding them because they are
actually unfit to serve in the female housing pods. On the
record before us, the County has not made such a showing.
Discrimination on the basis of sex is almost always
disfavored under Title VII. Thus, even in a correctional
setting, our test for whether an employer is entitled to a
BFOQ defense – that is, whether an employer has shown that
discrimination is “reasonably necessary,” 42 U.S.C. § 2000e2(e)(1) – is purposefully difficult to satisfy. It is even more
difficult when an employer moves for summary judgment and
so must show that there are no genuine disputes that would

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prevent it from satisfying our two-step inquiry as a matter of
law. While we do not reach the issue of whether the County
could ultimately prevail on plaintiffs’ discrimination claims,
the factual disputes in this case prevent the County from
prevailing at this stage.
We are mindful that deference often plays a significant
role in allowing a defendant to meet its burden of proving that
it is entitled to a BFOQ defense in the corrections context,
and we do not downplay the importance of courts deferring
to the judgment of officials like the Sheriff, who has
tremendous experience and expertise with respect to all
aspects of operating San Francisco’s jails. But, again, such
deference is not automatic, no matter how extensive an
official’s qualifications. A discriminatory employment policy
is an extraordinary response to a workplace problem, and our
principle of deferring to the judgments of corrections officials
has its roots in the expectation that officials have made
commensurate efforts to determine that a discriminatory
policy is a necessary response and the only viable response.
Thus, while we don’t presume to be able to second-guess an
official’s judgment, we do require that such a judgment be
“‘the product of a reasoned decision-making process, based
on available information and experience.’” Breiner, 610 F.3d
at 1212 n.6 (quoting Robino, 145 F.3d at 1110).
We need not and do not reach a conclusion about whether
the Sheriff’s judgment was the result of such a reasoned
process. However, on the record before us, we cannot find as
matter of law that the Policy resulted from such a process.
Therefore, on summary judgment, the County may not rely
on deference to the Sheriff’s judgment in order to meet its
burden of proving that it was entitled to a BFOQ defense. In
the absence of deference to the Sheriff’s judgment, the

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County is also unable to meet its burden of proving that there
is no issue of material fact as to whether its policy of
excluding all male deputies from the female housing units is
a legitimate proxy for excluding only those deputies that truly
pose a threat to the important interests SFSD rightfully seeks
to protect. The district court’s grant of summary judgment as
to plaintiffs’ sex discrimination claims and other claims
predicated thereon is REVERSED.
Because the district court denied plaintiffs’ summary
judgment motion on the same grounds that it granted the
County’s motion, the district court’s denial of summary
judgment to plaintiffs on these same claims is VACATED.
This case is REMANDED for further proceedings on these
claims.
III.

Evidentiary Claims

Prior to the district court’s ruling on the parties’ crossmotions for summary judgment on plaintiffs’ discrimination
claims, plaintiffs made numerous objections to evidence
offered by the County in support of its motion – particularly
to declarations submitted by SFSD officials. The district
court overruled three of the objections; it did not explicitly
rule on the remainder of the objections but relied on the
challenged evidence in its summary judgment order.
Plaintiffs challenge the district court’s explicit and implicit
evidentiary rulings in the County’s favor.
“We review the district court’s evidentiary decisions for
abuse of discretion, and the appellant is . . . required to
establish that the error was prejudicial.” Allstate Ins. Co. v.
Herron, 634 F.3d 1101, 1110 (9th Cir. 2011) (internal
quotation marks omitted). Because we reverse the district

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court’s grant of summary judgment on plaintiffs’
discrimination claims, plaintiffs cannot establish prejudice;
plaintiffs will have the opportunity to challenge the district
court’s evidentiary rulings if they are unsuccessful on
remand. Plaintiffs’ evidentiary challenges are DISMISSED.
IV.

Attorney’s Fees

In addition to their sex discrimination claims, plaintiffs
filed various retaliation claims, also under Title VII and
FEHA. The district court granted summary judgment to the
County as to all but three plaintiffs, and the County settled the
remaining claims. Plaintiffs moved for attorney’s fees in the
amount of $127,447.26 for having settled these claims. After
an in camera review of plaintiffs’ counsel’s time sheets, the
district court awarded $8,925 for “retaliation-specific work,”
observing that plaintiffs could not recover “fees for time
devoted to litigating the gender discrimination claims.”
Plaintiffs contend on appeal that the fee award is not
commensurate with the extent of their success.
“[I]n a lawsuit where the plaintiff presents different
claims for relief that ‘involve a common core of facts’ or are
based on ‘related legal theories,’ the district court should not
attempt to divide the request for attorney’s fees on a
claim-by-claim basis. Instead, the court must . . . ‘focus on
the significance of the overall relief obtained by the plaintiff
in relation to the hours reasonably expended on the
litigation.’” McCown v. City of Fontana, 565 F.3d 1097,
1103 (9th Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S.
424, 435 (1983)). In sum, “the district court should
adequately explain the reasonable number of hours and
hourly rate it uses in calculating the fee, and appropriately
adjust the award to account for [a plaintiff’s] limited success

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on claims and damages, and for any public benefit derived
from his suit.” Id. at 1105.
The district court concluded that plaintiffs’ success was
minor relative to the scope of the sex discrimination action,
and it awarded fees accordingly. Reviewing for abuse of
discretion, Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1200
(9th Cir. 2002), we see no indication that the district court
abused its discretion in making the award that it did. Under
the district court’s own reasoning, plaintiffs will be entitled
to a substantially greater award if they are successful on
remand. The district court’s award of attorney’s fees is
AFFIRMED.
V. Gray’s Retaliation Claims
John Gray was among the plaintiffs who claimed
retaliation and against whom the district court granted
summary judgment; the district court was correct in its
judgment. Gray disseminated defamatory statements about
several individuals, amounting to what the SFSD deemed
“[c]onduct, on or off duty, which reflects adversely on the
SFSD.” As a result, he was terminated. Gray is unable to
rebut the County’s evidence that his conduct was the nonretaliatory motive for his termination, Munoz v. Mabus,
630 F.3d 856, 865 (9th Cir. 2010), nor can he “produce direct
or circumstantial evidence demonstrating that a
discriminatory reason more likely than not motivated” the
County, McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122
(9th Cir. 2004). Further, his argument that his defamatory
statements, because they were made in connection with an
earlier employment-related arbitration, are protected by
California law from being used as evidence in this action is
without merit. See Oren Royal Oaks Venture v. Greenberg,

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Bernhard, Weiss & Karma, Inc., 728 P.2d 1202, 1208 (Cal.
1986). The district court’s grant of summary judgment to the
County on Gray’s retaliation claims is AFFIRMED.
AFFIRMED in part, REVERSED in part, VACATED
in part, DISMISSED in part, and REMANDED for further
proceedings. Each party shall bear its own costs.

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