No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.1
Abuse of women in prisons is a nationwide problem. This article focuses on the problems in Michigan's women's prisons, which are analogous to the widespread problems in many other states.2 In Michigan, women prisoners are held in Scott Correctional Facility, Crane Women's Facility, or Crane's Camp Branch. By 1997, the conditions in these prisons had deteriorated to such a degree that the United States Department of Justice felt required to bring legal action against the State of Michigan's Department of Corrections. Among other reasons, the suit was a response to a large problem with sexual misconduct between male officers and women prisoners.
The suit was settled in May 1999.3 In December 1999, the Michigan Department of Corrections (MDOC) announced that it intended to exclude male officers from certain positions in women's prisons.4 The legal basis for this allegedly discriminatory action against men was an exception to Title VII anti-discrimination legislation that applies when sex "is a bona fide occupational qualification" (BFOQ) for a particular job. This article explores the use of the BFOQ exception and concludes that the courts should uphold the use of the exception in order to provide women prisoners with safety, privacy, and increased likelihood of rehabilitation.
Part II of the article begins with a discussion of Title VII and the use of the BFOQ exception. The use of the BFOQ exception in custodial settings, including prisons, is discussed in Part III. The article then discusses the BFOQ exception as a defense in Part IV. In Part V, the article concludes that the courts should uphold MDOC's use of the BFOQ exception in women's prisons in order to restrict male officers from direct-contact positions with women prisoners.
A. Development of Sex Discrimination Law under Title VII
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, national origin, or sex.5 The purpose of Title VII is to control employers' activities by prohibiting "unlawful employment practices."6 When an employer discriminates against a person with respect to "hiring, discharge, compensation, or other terms, conditions or privileges of employment because of the individual's sex, race, color, religion, or national origin," the employer's action falls within the scope of Title VII.7
One way an employer illegally discriminates is by requiring certain qualifications that directly or indirectly eliminate persons of one gender from certain positions.8 A job requirement that intentionally eliminates persons of one gender is known as "disparate treatment."9 Disparate treatment occurs when an employer "knowingly and deliberately" takes adverse action against an employee because of the employee's sex.10 In Dothard v. Rawlinson,11 female officers were not allowed to work in contact positions in Alabama's men's maximum security prisons because of fear for the female officers' safety. Thus, the State of Alabama allegedly committed disparate-treatment discrimination, because it knowingly and deliberately used sex as a hiring criterion. 12
Another way an employer may discriminate illegally against an employee is by "disparate impact." Unlike disparate treatment, disparate impact involves sex-neutral practices that incidentally burden persons of a particular sex.13 For example, Dothard noted that the Alabama state statute required officers to be of a certain minimum weight and height in order to qualify for a prison guard position.14 These requirements, though sexneutral, tended to eliminate most women and thus constituted a form of disparate-impact discrimination. The legislative history of Title VII seems to indicate that job qualifications that eliminate many persons of one sex and none or a few of the other are discriminatory, unless justified by the BFOQ exception. …