AELE LAW LIBRARY OF CASE SUMMARIES:
Corrections Law for
Jails, Prisons and Detention Facilities
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Sexual Discrimination
Monthly Law Journal article: Gender Discrimination in Correctional Policies, 2020 (11) AELE Mo. L.J. 301.
In
a lawsuit claiming a violation of the Fourth Amendment because of strip
searches of female detainees in D.C. facilities while awaiting presentment
hearings in court, and claiming a violation of equal protection because male
detainees were allegedly not similarly strip searched, the District of Columbia
could not be held liable because the former Superior Court Marshal was not a
D.C. official but an appointed federal official and was not a policymaker for
the district. The Marshal was entitled to qualified immunity as the Fourth
Amendment right he was accused of violating was not clearly established at the
time. As to the equal protection claim, there was no evidence that he
purposefully directed that male and female detainees should be searched
differently. Johnson v. Government of the District of Columbia, #11-5115, 2013
U.S. App. Lexis 23060 (D.C. Cir.).
Female prison inmates did not
show sex discrimination based on the different programs and facilities provided
for female and male prisoners. Rather than gender discrimination, the
defendants' actions were based on a need to provide adequate sex segregated
housing for female prisoners. Vocational education programs offered in prison
were not covered by Title IX of the Civil Rights Act. Differences in male and
female programs offered were a result of the location of the facilities rather
than sex discrimination. Roubideaux v. North Dakota Dep't of Corr. and
Rehabilitation, #07-3780 2009 U.S. App. Lexis 14417 (8th Cir.).
Programs that provide services to inmate mothers
in California did not engage in unlawful sex discrimination under state law by
failing to provide the same services and programs to male prisoners who are
parents. One of the programs is the Pregnant and Parenting Women’s Alternative
Sentencing Program Act, that funds community based facilities for programs
designed to reduce drug use and recidivism, and allows at least one eligible
child to reside with the mother at the facility if the mother has a history of
substance abuse, the child is under six, and the sentence is less than three
years. The second program "provides for a community treatment program for
women inmates sentenced to state prison who have one or more children under the
age of six. An incarcerated mother is eligible for the program if she has a
probable release or parole date with a maximum period of confinement not
exceeding six years; she was the primary caretaker of the infant prior to incarceration;
she has not been found to be an unfit parent; and she does not pose an
unreasonable risk to the public due to the nature of her crime, the risk of
absconding, or probable adverse conduct." Male prisoners who are parents,
the court found, were not shown to be similarly situated to inmate mothers.
"Most female inmates were convicted of drug or property crimes, often
victims of abuse, and more likely to be single parents. [...] There were only a
small percentage of male primary caretakers." The court noted that,:
"Government data showed these women prisoners were likely to have been the
primary or single caretaker of their young children, who were likely to be
displaced to other relatives or foster care. By contrast, children of
incarcerated men were likely to continue living with their mothers." Woods
v. Shewry, No. C056072, 2008 Cal. App. Lexis 1588; 167 Cal. App. 4th 658; 84
Cal. Rptr. 3d 332 (3rd Dist. Cal. App.).
Female juvenile adjudicated delinquent did not
show that her federal constitutional or statutory rights were violated by the
fact that a community corrections facility near her home did not accept
females, resulting in her having to serve 11 months in a juvenile correctional
facility and a drug rehabilitation center that were further away. Her
constitutional rights were not violated because she was provided with
opportunities comparable to those provided for male inmates. The decision made
by her family members not to drive to the facility where she was incarcerated
for attendance at family therapy sessions did not alter the fact that family
therapy was offered. Additionally for purposes of federal civil rights statutes
prohibiting sex discrimination in a governmental "program or
activity," the "program or activity" at issue was the entire
system of juvenile institutions operated by the State of Ohio, rather than a
particular juvenile facility. Lothes v. Butler County Juvenile Rehabilitation
Center, No. 06-3389, 2007 U.S. App. Lexis 16559 (6th Cir.).
New Jersey intermediate appeals court upholds
Merit System Board's decision that county was entitled to designation of eight
Juvenile Detention Officer positions as "male-only" on the basis of
"bona fide occupational qualification" because of privacy interest of
male juvenile detainees in not being viewed by female officers while showering,
using toilet, and being strip-searched. In the Matter of Juvenile Detention
Officer Union County, 837 A.2d 1101 (N.J. Super. A.D. 2003). [N/R]
Male and female prisoners were not "similarly
situated" for purposes of male prisoner's lawsuit complaining that the
female prisoners were given a greater degree of privacy in toilets and showers
than that afforded to males. Stronger security concerns involving male
prisoners justified surveillance of male prisoners in toilets and showers by
correctional officers, including female officers. Oliver v. Scott, #00-10898,
276 F.3d 736 (5th Cir. 2002).[2002 JB Apr]
285:141 Federal appeals court orders further
proceedings on whether male and female prisoners are "similarly
situated"; male prisoners' complaints that they are subjected to a lower
living standard, harsher work assignments, and other unequal treatment compared
to female prisoners should not have been dismissed without detailed factual
findings. Yates v. Stalder, #99-30744, 217 F.3d 332 (5th Cir. 2000).
277:12 Termination of female correctional officer
at the end of her probationary period was not sex discrimination when her
performance evaluations showed that she was "not qualified" for the job;
under these circumstances, the court did not need to reach the issue of whether
male co-workers were treated differently. Warfield v. Lebanon Correctional
Institution, #98-3588, 181 F.3d 723 (6th Cir. 1999).
280:58 Federal
appeals court upholds $385,000 sanction against state correctional department
for failure to obey court orders to provide equal access to vocational training
and apprenticeship programs for female prisoners. Glover v. Johnson, #98-1900,
98-2140, 199 F.3d 310 (6th Cir. 1999).
265:14 Assigning
only female correctional officers to certain posts where they were required to
observe female inmates in the showers and toilet areas was not sex
discrimination; policy was reasonable response to concerns over inmate privacy
and allegations of abuse by male officers. Robino v. Iranon, #97-16470, 145
F.3d 1109 (9th Cir. 1998).
» Editor's Note:
For a similar ruling, see Torres v. Wisc. Dept. of Health & Social Serv.,
859 F.2d 1523 (7th Cir. 1988) (en banc).
[N/R] Facilities
of state department of corrections are places of "public service"
within the meaning of Michigan Civil Rights Act; differing treatment of
prisoners of different genders, however, may be permissible if such treatment
is substantially related to achievement of important penological interests.
Neal v. Michigan Dept. of Corrections, 592 N.W.2d 370 (Mich. App. 1998).
[N/R] Prison
officials could not be held in contempt for alleged failing to comply with the
terms of remedial plans for sexual discrimination in educational and vocational
opportunities which had not been adopted as court orders. Glover v. Johnson,
#95-1521, 96-1852, 96-1931, 96-1948, 138 F.3d 229 (6th Cir. 1998).
242:27
Differences in package receipt and cassette player possession rules for male and
female prisoners in Arkansas correctional facilities were justified by
differences in security considerations in male and female facilities and other
differences in the circumstances of the prisoners, so that differences in
privileges did not violate equal protection. Prince v. Endell, 78 F.3d 397 (8th
Cir. 1996).
250:156 Arkansas
agrees, in settlement of sex discrimination lawsuit by Justice Department, to
hire 400 female correctional officers to work in male state prisons, to allow
these officers to perform all job functions except strip searches, and to pay
$20 million in back wages to female applicants previously denied jobs and
female officers previously denied promotions. U.S. Dept. of Justice v.
Arkansas, U.S. Dist Chicago Tribune, p. 16 (June 20, 1997). [N/R] Male and
female prisoners were not similarly situation for purposes of female prisoners'
claim that they were denied equal prison industry employment opportunities.
Keevan v. Smith, 100 F.3d 644 (8th Cir. 1996).
[N/R] Conditions
in prison segregation unit did not present any "atypical and significant
hardship" as would present a federal constitutional issue. Higgason v.
Farley, 83 F.3d 807 (7th Cir. 1996).
232:61 Policy of
assigning only female employees to women's unit of mixed gender prison did not
constitute sex discrimination under either federal or Iowa law, federal appeals
court rules. Tharp v. Iowa Department of Corrections, 68 F.3d 223 (8th Cir.
1995).
234:94 Update:
Federal appeals court upholds determination that any differences between
programs and services available to female and male inmates in Iowa correctional
institutions were justified by "legitimate penological interests" and
that programs available to male and female inmates with the same custody levels
were "substantially similar." Pargo v. Elliott, 69 F.3d 280 (8th Cir.
1995).
227:174 Trial
court should not have rejected female prisoners' claim that they had been
subject to sexual discrimination by being provided different services and
programs than male prisoners when trial judge failed to make detailed factual
findings concerning whether male and female prisoners were "similarly
situated." Pargo v. Elliott, 49 F.3d 1355 (8th Cir. 1995).
218:29 Female
prisoners' equal protection rights were not violated even if they did have
certain programs which were inferior to those provided in one of the state's
all-male facilities. Klinger v. Dept. of Corrections, 31 F.3d 727 (8th Cir.
1994).
219:45 Federal
statute prohibiting gender discrimination in education applies in state prisons
receiving federal funds; federal appeals court rules that "penological
necessity" is not a defense to suits brought under this statute, but
merely a factor to be considered in determining how it applies in the prison
context. Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994).
219:46 Prison
officials were entitled to qualified immunity from liability for failure to
provide a program for overnight visitation of male inmate's infant child while
allowing such visitation at women's correctional facility; different security
levels at the two institutions indicated that plaintiff and female inmates
could reasonably be viewed as "not similarly situated." Bills v.
Dahm, 32 F.3d 333 (8th Cir. 1994).
220:60 Allowing
male, but not female, inmates to participate in "boot camp" program
which resulted in shorter periods of incarceration violated female prisoners'
rights. West v. Virginia Dept. of Corrections, 847 F.Supp. 402 (W.D.Va. 1994).
Incarcerating
D.C. female offenders in federal facilities farther from home than male
offenders did not violate equal protection. Pitts v. Thornburgh, 866 F.2d 1450
(D.C. Cir. 1989).
Female offenders
incarcerated in federal facilities due to lack of facilities for female
offenders in D.C. did not state equal protection claim. Pitts v. Meese, 684
F.Supp. 303 (D.D.C. 1987).