AMENDED MEMORANDUM DECISION AND ORDER
ROBINSON, District Judge.
A. Procedural Posture
This action consists of three separate lawsuits
The Plaintiffs moved for summary judgment, asserting several arguments: (1) the Defendants' gender-conscious policies impose more than de minimus restrictions on the Plaintiffs' employment; (2) the Defendants' policies violate the Equal Protection Clause; (3) the Defendants cannot establish a bona fide occupational qualification
B. Statement of Facts
The DOC complex consists of three separate divisions: the Jail and Penitentiary Divisions, which house male inmates, and the Women's Unit, which houses female pre-trial detainees and inmates generally serving sentences of less than one year. During 1999, the year prior to the implementation of the policy at issue in this case, the DOC housed approximately 1200 inmates, of which approximately eighty-six percent were males and fourteen percent were females. At the same time, the DOC employed approximately 770 correction officers, of whom approximately 616 were male and 154 were female.
The issue of gender-based assignments of correctional officers has been an ongoing source of dispute between the parties to this case.
In June 1993, the DOC issued a policy directive requiring that a female officer be assigned to the transportation of female inmates by car or through Elmwood Hall to inmates' work locations. This policy was challenged by COBA member Regina Ehren in a case entitled Ehren v. County of Westchester, 95 Civ. 0700(CLB). In settling this action, the County once again reversed its policy, thereafter permitting all correction officers to be assigned to the posts in question regardless of their gender.
Since at least 1988, the County has had in place policies prohibiting personal relationships and sexual relationships of any kind between inmates and correction officers and sexual harassment by corrections officers. Nevertheless, a series of incidents of voluntary and involuntary sexual activity between correctional officers and inmates have occurred: a male correction officer was found to have engaged in consensual sexual intercourse with a female inmate in 1993; a male correction officer was convicted by a jury of raping a female inmate in her cell in 1996; and a court found a correction officer guilty of sexually abusing a female inmate in 1998. Moreover, in January 2000, four male correction officers were arrested on charges of rape and/or sodomy, official misconduct and sexual abuse. One of the officers pleaded guilty to third degree rape, two were acquitted
Following these incidents, the County re-imposed gender-based restrictions on the assignment of correctional officers to the supervision and transportation of female inmates. In particular, the County made two major policy changes. First, the County adopted a policy banning male correction officers from working housing posts in the Women's Unit. Pursuant to this policy change, the DOC transferred all male correction officers assigned to the Women's unit to units housing male prisoners. Although their work locations changed, all correction officers were assigned to the same shifts and the same squad to which they were previously assigned after the transfers. Second, since at least May 1999, the DOC has required that, whenever a female inmate is to be transported, one of the officers transporting the inmate must be female. As a result, a male correction officer who happens to be working the transportation post at the time a female inmate needs to be transported may temporarily be reassigned to another post while a female correction officer transports the female inmate.
In addition to these changes, the County pursued other "remedial efforts." In particular, the County announced a program to increase training for staff and correction officers and installed cameras and door alarms to the female unit. The County does not believe that cameras are a complete solution, however, because cameras do not cover all areas of the unit due to privacy concerns, and also because, according to the County, males who are "highly motivated" to commit improper sexual acts "will find a way."
An important development occurred in this case after the parties' summary judgment motions were fully briefed. In June 2004, the County closed the Women's Division at the Westchester County Correctional Facility, and transferred all female inmates to the jail division, fourth floor. At the same time, the County announced another reversal of its policy on housing posts in the Women's Unit, this time revoking its ban on male correction officers serving in any female housing post. Plaintiffs claim, and Defendants have not disputed, that of twenty-three correctional officers now assigned to the fourth floor of the jail division, twenty-one are males are two are females. In light of these developments, Plaintiffs concede that its request for injunctive relief regarding the housing policy is now moot, but point out that its claim for damages allegedly incurred as a result of the housing policy is unaffected. Defendants have argued that its policy change does not affect the merits of its prior arguments because the circumstances (including the physical dimensions) of the new facility housing female inmates are different. The transportation policy at issue in this case remains in place and, as such, Plaintiffs' claims for related damages and injunctive relief are also unaffected.
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when "there is no genuine issue as to any
B. Whether A Gender Restriction On Transportation Posts Constitutes An Adverse Employment Action Under Title VII:
Defendants argue that the temporary reassignment of male correction officers to facilitate the transportation of female inmates by female correction officers does not "rise to the level of a tangible or significant alteration in the terms and conditions of employment" and cannot form the basis of liability. Plaintiffs respond that changing the duties of such male officers, even temporarily, constitutes a significant alternation in terms and conditions. Plaintiffs' argument is unavailing.
The Second Circuit has held that a qualifying adverse action by an employer is a "materially adverse change in the terms and conditions of employment." See Weeks v. New York State, 273 F.3d 76, 85 (2d Cir.2001), quoting Galabya v. New York City Board of Educ., 202 F.3d 636, 640 (2d Cir.2000). The challenged action must "affect[ ] employment in a way that is both detrimental and substantial." Weeks, 273 F.3d at 87 (quoting Bernheim v. Litt, 79 F.3d 318, 327 (2d Cir.1996) (Jacobs, J, concurring)). The types of actions that meet this test include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation. Weeks, 273 F.3d at 85. Of particular relevance to the facts of this case, the action must involve a change in working conditions that is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. at 86 (holding that the transfer of the plaintiff to another office and the reassignment of the plaintiffs tasks to colleagues did not constitute adverse actions). Not only are Plaintiffs' objections to the transportation policy likewise predicated on the mere reassignment of male officers, the reassignments at issue are temporary, lasting only as long as it takes to transport female inmates. It is clear, therefore, that Defendants' policy does not constitute an adverse action for the purposes of Title VII. As such, the transportation policy cannot be form the basis of liability in this case.
C. Whether The Union Is A Proper Party To The Action:
The Defendants argue that COBA lacks standing to litigate this case because it has
Because the judicial power of the United States extends only to the resolution of cases and controversies, U.S. Const, art. Ill, § 2, courts have always required that a litigant have "standing" to challenge the action sought to be adjudicated. See Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1095 (2d Cir.1997). At a minimum, Article III requires the party who invokes the court's authority to show that (i) he personally has suffered some actual or threatened injury as a result of defendants' putatively illegal conduct; (ii) the injury is fairly traceable to the challenged action; and (iii) the injury is likely to be redressed by a favorable decision. Id.
An organization can achieve standing in two ways: based on alleged injury to itself, or as a representative of its members. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). To bring suit on behalf of its membership, the organization must demonstrate that "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir.1998), quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343-45, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).
Defendants argue that COBA has no standing in part because "[i]t is the correction officers who must participate in the litigation... [and] testify as to... the alleged damages they claim to have suffered...." Whether an association has standing to invoke the court's remedial powers on behalf of its members "depends in substantial measure on the nature of the relief sought." Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Notably, the Court in Warth stated that "in all cases in which we have expressly recognized standing in associations to represent their members," the association was seeking "a declaration, injunction, or some other form of prospective relief." Id. The Court went on to deny the association plaintiff standing to seek damages for alleged injuries to its members because it "allege[d] no monetary injury to itself and because "the damages claims [we]re not common to the entire membership, nor shared by all in equal degree." Id. Because "whatever injury may have been suffered [was] peculiar to the individual member concerned, ... both the fact and extent of injury...require[d] individualized proof." Id. at 515-16, 95 S.Ct. 2197.
In this case, Plaintiffs are seeking monetary and injunctive relief arising from the County's housing and transportation policies. Having already determined that Plaintiffs can maintain no causes of action arising from the transportation policy, and given that the County's recent change in its housing policy renders Plaintiffs' claim for injunctive relief moot, all that remains are the Plaintiffs' claim for damages arising from the housing policy. Notably, the crux of Plaintiffs' complaint is that the Defendants' policy results in dissimilar treatment of male and female correction officers. Therefore, it is clear that the fact and extent of injury require individualized
D. Whether gender constitutes a BFOQ:
Under § 703(e)(1) of Title VII, an employer may discriminate on the basis of "religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. § 2000e-2(e)(1). Therefore, in order to sustain a BFOQ defense, the Defendants must show 1. the job qualifications that the employer invokes to justify his discrimination must relate to the essence or central function of his business, and 2. they must be "reasonably necessary" to the particular business. See Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 414-415, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985).
With respect to the first requirement, the Supreme Court has held that "[t]he essence of a correctional counselor's job is to maintain prison security." Dothard v. Rawlinson, 433 U.S. 321, 335, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). The County's gender-conscious housing policy was adopted for the purpose of protecting female inmates from unwanted or otherwise inappropriate sexual encounters with male correction officers.
Whether the policy satisfies the second requirement, however, is much more problematic. The Defendants make several arguments. First, they argue that the past history of incidents, which is summarized above, indicates that "some unknown number of male correction officers are likely to be `highly motivated' to commit acts of sexual abuse or coercion...." Second, they argue that female inmates who are past victims of sexual abuse are harmed by the mere presence of male officers.
The Defendants' argument is unconvincing for various reasons. First and foremost, controlling precedent does not permit gender-based discrimination in order to prevent hypothetical safety risks posed by a small percentage of male correction officers, even to the extent the likely wrongdoers are undetectable ex ante. A valid BFOQ defense requires a factual showing that "all or substantially all" members of the targeted group would be "unable to perform safely and efficiently the duties of the job involved." Dothard, 433 U.S. at 333, 97 S.Ct. 2720 (internal quotations omitted); Int'l Union, United Auto., etc. v. Johnson Controls, 499 U.S. 187, 207, 111 S.Ct. 1196, 113 L.Ed.2d 158 (rejecting an employment policy that excludes all fertile women simply because it is impossible to tell which women will become pregnant). The Defendants have failed to establish that all or substantially all male correction officers pose a risk of inappropriate sexual conduct with female inmates to justify a complete ban. Rather, they base their argument on incidents involving
It is admittedly true that the Court in Dothard did hold that a regulation banning women from certain positions in Alabama prisons was within the confines of the BFOQ exception. See Dothard 433 U.S. at 336-37, 97 S.Ct. 2720. However, the Court was careful to limit its holding to the relatively unique facts of the case before it, including the "rampant violence" and "jungle atmosphere" of Alabama's maximum-security male penitentiaries. Id. at 334, 97 S.Ct. 2720 (internal quotations omitted). Specifically, the Court noted that inmates in Alabama's prisons were not segregated according to their offense level or dangerousness, leaving the estimated 20% of male prisoners who were sex offenders scattered throughout the dormitory facilities. Id. at 335, 97 S.Ct. 2720. Concerned that sex offenders and other inmates would assault female guards, the Court concluded that "[a] woman's relative ability to maintain order.. .could be directly reduced by her womanhood." Id. Obviously, there is much to distinguish Dothard, predicated on the protection of female officers and the prison environment from attacks by proven, violent offenders, from the Defendants' interest in protecting female inmates from an unspecified minority of male correction officers. See Everson v. Mich. Dep't of Corr., 222 F.Supp.2d 864, 895 (E.D.Mich.2002) (refusing to permit a blanket ban on male on employment of male officers in female prisons simply because a few are likely to be involved in improper activities).
Moreover, there are reasons to doubt many of the specific justifications advanced by the Defendants in this case. If the mere presence of male officers poses a risk of sexual assault and causes distress to past victims of sexual abuse, it is difficult to understand how the County justifies allowing male correction officers to occupy any posts that would bring them in contact with female inmates,
Plaintiffs' motion for summary judgment is GRANTED IN PART and DENIED IN PART. Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART.
It is so ordered.