NCJ Number
66159
Journal
Iowa Law Review Volume: 65 Issue: 2 Dated: (JANUARY 1980) Pages: 428-445
Date Published
1980
Length
18 pages
Annotation
THE BALANCING TESTS USED BY THE COURTS IN RESOLVING CASES ON SEX DISCRIMINATION IN PRISON EMPLOYMENT ARE ANALYZED, WITH EMPHASIS ON THE COURT'S APPROACH IN GUNTHER V. IOWA STATE MEN'S REFORMATORY.
Abstract
ENFORCEMENT OF WOMEN'S EMPLOYMENT RIGHTS HAS CONFLICTED WITH PRISONERS' RIGHTS PARTICULARLY IN THE EMPLOYMENT OF WOMEN AS PRISON GUARDS IN ALL-MALE PRISONS. IN DOTHARD V. RAWLINSON, THE U.S. SUPREME COURT RECOGNIZED THAT THE PURPOSE OF TITLE VII IS TO REMOVE ARBITRARY AND UNNECESSARY EMPLOYMENT BARRIERS BASED ON RACE, SEX, RELIGION, OR NATIONAL ORIGIN. TITLE VII, HOWEVER, PROVIDES A DEFENSE FOR EMPLOYERS WHO DISCRIMINATE ON THE BASIS OF SEX IF THERE IS A BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ) FOR THE JOB. THE COURT FOUND THAT GENDER WAS A BFOQ FOR THE JOB OF PRISON GUARD BECAUSE THE JUNGLE ATMOSPHERE OF THE PRISON AT ISSUE MADE THE JOB TOO DANGEROUS FOR A WOMAN TO MAINTAIN ORDER. THE POTENTIAL FOR SEXUAL ASSAULT BY PRISONERS WAS ANOTHER FACTOR IN THE COURT'S DECISION. THE COURT THUS REACHED ITS DECISION BY BALANCING THE TITLE VII RIGHTS OF THE JOB APPLICANT AGAINST THE PRISON'S INTEREST IN MAINTAINING ORDER AND CONTROL. HOWEVER, THE COURT DID NOT CONSIDER THE IMPORTANT INTEREST OF THE PRISONERS' RIGHT TO PRIVACY. THIS RIGHT WAS CONSIDERED IN THE DOTHARD CASE. IN DOTHARD, THE COURT BALANCED ALL THREE ELEMENTS AND HELD THAT MALE GENDER WAS NOT A BFOQ FOR THE JOB OF PRISON GUARD. THE COURT STATED THAT THE PRISONERS' PRIVACY RIGHTS WOULD NOT BE AFFECTED BY A WOMAN GUARD DEPENDING ON THE PARTICULAR JOB TO WHICH SHE WAS ASSIGNED. THE ARTICLE CLOSELY EXAMINES BOTH THESE CASES. THE LIMITATIONS OF THE USE OF A PRIVACY BFOQ ANALYSIS IN THE PRISON CONTEXT IS EVALUATED. IT IS CONCLUDED THAT THE COURTS SHOULD CONTINUE TO BALANCE NOT ONLY THE INTEREST OF THE PRISON AND THE JOB APPLICANT, BUT THE INTERESTS OF THE PRISONER AS WELL. THE COURTS MUST CONSIDER THE EXTENT OF PRISONERS' PRIVACY RIGHTS TO ENSURE THAT THE BFOQ EXCEPTION REMAINS NARROW, THEREBY SAFEGUARDING THE ANTIDISCRIMINATION LAWS. BALANCING OF THESE INTERESTS IS DIFFICULT AND THE UNCERTAINTY OF THIS FIELD REQUIRES JUDGES TO CAREFULLY APPRAISE THE INTEREST INVOLVED. THE APPROACH TAKEN BY GUNTHER AND SELECTIVE SCHEDULING OF DUTIES BETWEEN MEN AND WOMEN GUARDS IS A VIABLE SOLUTION. FOOTNOTES ARE GIVEN. (MJW)