Anderson v. City & Cnty. of San Francisco

To assert a valid bona fide occupational qualification defense for sex discrimination, an employer must prove: (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 individuals of that particular sex 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.

Deputies from the San Francisco Sheriff's Department ("SFSD") appealed the summary judgment in favor of the City and County of San Francisco (the "County") regarding their challenge to a new SFSD policy. The policy "[prohibits] male deputies from supervising female inmates in the housing units of the [County] jails." The policy was enacted in furtherance of safety, security, privacy, and successful rehabilitation. Several deputies alleged the policy "constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), and the California Fair Employment and Housing Act ("FEHA")," resulting in various harms based on the "conditions of their employment." The district court granted summary judgment to the County because it established sex was a valid "bona fide occupational qualification" ("BFOQ") defense. Upon review, the Ninth Circuit determined the County had not established a valid BFOQ defense when proving: "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 panel determined there were issues of fact regarding the second prong of the BFOQ defense test in relation to job qualifications derived from the four objectives of the policy, and also whether the policy was established through a "reasoned decision-making process, based on available information and experience." Therefore the panel reversed the district court's summary judgment and remanded the case. AFFIRMED in part, REVERSED in part, VACATED in part, DISMISSED in part, and REMANDED.