## Facts

- The Nevada Department of Corrections (NDOC) staffed the Southern Nevada Women’s Correctional Facility (SNWCF), a prison for female inmates.
- After an investigation reported serious staff–inmate sexual misconduct and contraband problems at SNWCF, NDOC resumed control of the facility and attributed the problems primarily to inadequate supervision and oversight.
- NDOC adopted staffing rules requiring that all correctional lieutenant positions at SNWCF be filled only by women and that 70% of front-line correctional officers there be women.
- NDOC justified the female-only lieutenant policy on grounds including preventing sexual abuse and misconduct, improving security, and protecting inmate privacy, relying in part on assumptions that male supervisors were more likely to tolerate or commit abuse and that female supervisors had a “maternal instinct.”
- The plaintiff officers were men employed by NDOC who were eligible for promotion to correctional lieutenant; the policy categorically barred them from consideration for SNWCF lieutenant positions because of sex.
- The district court granted summary judgment to NDOC, concluding the restriction was “de minimis” as to overall promotion opportunities and alternatively that sex was a bona fide occupational qualification (BFOQ).
- The plaintiffs appealed.

## Issues

1. Whether Title VII permits an employer to intentionally exclude men from an entire category of positions at a facility based on a “de minimis” impact on overall promotional opportunities.
2. Whether NDOC established, as a matter of law on summary judgment, that being female was a BFOQ for correctional lieutenant positions at a women’s prison to protect privacy, prevent abuse, and maintain security.

## Decision

- The Ninth Circuit reversed the grant of summary judgment and remanded.
- The court held NDOC’s female-only lieutenant policy was facial sex discrimination under Title VII, and Title VII contains no “de minimis” exception for intentional discrimination.
- The court held NDOC did not satisfy the stringent BFOQ standard on the summary judgment record because its justifications relied substantially on sex stereotypes and did not show sex-based exclusion was reasonably necessary or that reasonable alternatives were unavailable.

## Legal Principles

- A policy that expressly bars one sex from a position is facial disparate treatment under Title VII; the number of positions affected does not create a “de minimis” safe harbor for intentional discrimination.
- Title VII’s sex-based BFOQ exception, 42 U.S.C. § 2000e-2(e)(1), is narrowly construed and cannot rest on generalized assumptions about men or women.
- To prove a sex BFOQ, the employer must show the qualification is reasonably necessary to the normal operation of the enterprise and that the business’s essential operation would be undermined without the sex restriction.
- The employer must also show that reasonable, less discriminatory alternatives (e.g., improved supervision, training, discipline, or operational changes) would not adequately address the asserted safety, security, or privacy concerns.

## Conclusion

The Ninth Circuit held that NDOC’s categorical exclusion of men from correctional lieutenant positions at a women’s prison constituted intentional sex discrimination, rejected a “de minimis” justification, and ruled that NDOC had not proven a sex-based BFOQ on summary judgment because the record did not establish necessity and relied heavily on stereotypes rather than evidence and the absence of workable alternatives.


Breiner v. Nev. Dep’t of Corr., 610 F.3d 1202 (9th Cir. 2010)