In his award in U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Memphis Tennessee and American Federation of Government Employees, Local 3731, Arbitrator Daniel Kininmonth addresses the balance between the rights of male inmates to bodily privacy and the rights of female staff to be assigned to guard them.
FCI Memphis is an all male, medium security facility. The grievance in issue involved the Bureau of Prisons' decision to exclude female correctional officers (or supplemental staff) from Dry Cell or Suicide Watch. Where an inmate has ingested contraband or concealed contraband in a body cavity, he may be placed in a cell with no toilet, faucet or shower (a dry cell). The inmate is then closely observed "until the inmate has voided the contraband or until sufficient time has elapsed to preclude the possibility that the inmate is concealing contraband ..." In Suicide Watch, the correctional officer continuously watches the inmate to prevent him from harming himself. The grievance arose when female correctional officers were denied the opportunity to handle these assignments.
The parties raised a variety of issues in support of their respective positions, but one of the issues was the BOP's assertion that its policy of excluding women from these assignments justified by "business necessity" and that the applicable agreement recognized its right to assign work. The union claimed that the exclusion was discriminatory on its face and could only be justified if gender was a Bona Fide Occupational Qualification (BFOQ) for the assignment. While recognizing that inmates had a legitimate privacy interest, the Union argued:
Privacy protection directly affects the essence or central mission of prisons. ... The Sixth Circuit has uniformly held that "privacy" relates to the essence of prison business. Million v. Warren Cty., Ohio, 2020 U.S. Dist. LEXIS 28000 (S.D. Ohio 2020). Yet, an inmate's right to privacy must be balanced against the legitimate objective of providing equal job opportunities without regard to sex pursuant to Title VII. Griffin v. Michigan Dep't of Corrections, 654 F. Supp. 690, 701 (E.D. Mich. 1982). The courts balance both privacy rights and Title VII. The degree of the balancing depends on the inmate's gender. Occasional and inadvertent observation of unclothed inmates by cross-gender guards is usually tolerated by the courts. This is particularly true of female guard's observing male inmates
After an extensive review of the case law and legal commentary on this question, Arbitrator Kininmonth concludes that the BOP failed to establish that its position was consistent with a BFOQ defense:
In this case, (1) FCI Memphis has not asserted a factual basis that assigning female staff to "Dry Cell" or "Suicide Watch" would undermine the prison's operation. (2) Admittedly, an inmate's privacy at FCI Memphis is entitled to some protection under the law. However, the inmates in "Dry Cell" and "Suicide Watch" are clothed. Therefore, there is no privacy violation. (3) There are reasonable alternatives to protect the inmate's privacy. If the inmate has the urge to urinate or have a bowel movement in the "Dry Cell," the female staff member can summon a male colleague and temporarily withdraw. The inmate in "Suicide Watch" who needs to urinate or defecate can be provided a towel, blanket or privacy screen in his cell to protect his privacy. FCI Memphis cannot prove the three (3) factors necessary to sustain a "Privacy BFOQ Defense."
The Arbitrator also considered and rejected the BOP's claims that the grievance was insufficiently specific and untimely.
Update: The Federal Labor Relations Authority denied the Agency's exceptions and upheld Arbitrator Kininmonth's award. 73 FLRA No. 5 (May 26, 2022). The opinion can be found here.
