In Anderson v. City & County of San Francisco, ___ F.3d ___ (9th Cir. July 2, 2014), the Ninth Circuit Court of Appeals reversed in part and vacated in part the judgment by the U.S. District Court for the Northern District of California (Judge Illston) in favor of defendant employer on plaintiffs’ claims of sex discrimination.

Plaintiffs were thirty-five (35) sheriff’s deputies, most of whom were female, who filed a lawsuit against the defendant County, alleging that the Sheriff’s Department policy prohibiting male deputies from supervising female inmates in the housing units of the department’s jails amounted to sex discrimination in violation of both Title VII of the Civil Rights Act and the California Fair Employment and Housing Act.  According to plaintiffs, this policy harmed them because staffing restrictions caused by the policy resulted in loss of control over when overtime was available or required, loss of opportunities to develop career-enhancing experience, and loss of preferred shifts and regular days off previously earned by seniority. Defendant countered that any discrimination that resulted from the policy was entirely permissible under the “bona fide occupational qualification” (“BFOQ”) exception to Title VII and FEHA, which allows employers to implement discriminatory policies in very limited circumstances.  Both sides moved for summary judgment, which the district court granted in favor of defendant, finding that it had established a valid BFOQ defense.  Plaintiffs appealed.

The appellate court disagreed.  First, the court reversed the district court’s grant of summary judgment to defendant on plaintiffs’ sex discrimination claims and derivative claims. The court noted that “[t]o justify discrimination under the BFOQ exception, an employer must ‘prove by a preponderance of the evidence: 1) that the job qualification justifying the discrimination is reasonably necessary to the essence of its business; and 2) that [sex] is a legitimate proxy for the qualification because (a) it has a substantial basis for believing that all or nearly all [men] lack the qualification, or . . . (b) it is impossible or highly impractical . . . to insure by individual testing that its employees will have the necessary qualifications for the job.’”

The court concluded that defendant was not entitled to summary judgment because there were genuine issues of material fact as to whether it was entitled to a BFOQ defense. Indeed, the court found, there were genuine issues of material fact as to whether a reasoned decision-making process, based on available information and experience, led to the Sheriff’s adoption of the policy, such that it would be entitled to deference. There were also genuine issues of material fact as to whether excluding male deputies because of their sex was a legitimate substitute for excluding them because they were actually unfit to serve in the female housing pods. Because the district court’s conclusion that defendant was entitled to a BFOQ defense was also the basis for its denial of plaintiffs’ motion for summary judgment, the court also vacated the district court’s denial of plaintiffs’ motion.