FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD C. BREINER; LOREN
CHAPULIN; JIMMIE MCNEAL; RANDY
STOUT, No. 09-15568
Plaintiffs-Appellants, D.C. No.
v. 2:05-CV-01412-
NEVADA DEPARTMENT OF KJD-RJJ
CORRECTIONS; STATE OF NEVADA; OPINION
GLEN WHORTON; JACKIE CRAWFORD,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
February 11, 2010—San Francisco, California
Filed July 8, 2010
Before: John T. Noonan, Marsha S. Berzon and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Berzon
9671
BREINER v. NEVADA DEP’T OF CORRECTIONS 9675
COUNSEL
John B. Marcin, Las Vegas, Nevada, for the plaintiffs-
appellants.
Roger R. Madsen, Deputy Attorney General, Catherine Cortez
Masto, Attorney General, Las Vegas, Nevada, for the
defendants-appellees.
OPINION
BERZON, Circuit Judge:
The Nevada Department of Corrections (NDOC) hires only
female correctional lieutenants at a women’s prison. The dis-
trict court granted summary judgment upholding NDOC’s
discriminatory employment policy, concluding that the policy
imposed only a “de minimis” restriction on male prison
employees’ promotional opportunities and, alternatively, that
the policy falls within Title VII’s exception permitting sex
discrimination in jobs for which sex is a bona fide occupa-
tional qualification, 42 U.S.C. § 2000e-2(e)(1). We reverse as
to both holdings.
FACTUAL & PROCEDURAL BACKGROUND
In September 2003, NDOC’s Inspector General learned that
a female inmate at the Southern Nevada Women’s Correc-
9676 BREINER v. NEVADA DEP’T OF CORRECTIONS
tional Facility (SNWCF) had been impregnated by a male
guard. At the time, SNWCF was operated by a private com-
pany, Corrections Corporation of America (CCA). The preg-
nant inmate alleged that her relationship with the guard
stemmed from CCA’s refusal to provide the psychotropic
medications she had long been prescribed to treat her schizo-
phrenia. NDOC Director Jackie Crawford acknowledged that
her office had received a number of complaints concerning
medical issues at SNWCF. At Crawford’s direction, the
Inspector General interviewed approximately 200 inmates
about “their personal experiences with the medical function at
[SNWCF].” Nearly all the inmates reported receiving substan-
dard medical treatment.
In the course of the investigation, the Inspector General
also discovered that SNWCF had become “an uninhibited
sexual environment.” He noted “frequent instances of inap-
propriate staff/inmate interaction,” “flirtatious activities
between staff and inmates,” and “widespread knowledge” of
“long-term inmate/inmate sexual relationships.” In exchange
for sex, prison staff “routinely introduce[d] . . . contraband
into the institution, including alcohol, narcotics, cosmetics,
[and] jewelry.” The inmates’ sexual behavior—which they
freely admitted was designed to “compromise staff and
enhance inmate privileges”—was, in the Inspector General’s
view, “predictable.” The Inspector General attributed the
guards’ misconduct to “a lack of effective supervisory man-
agement oversight and control. . . . There is no evidence that
supervisors or managers recognize this risky behavior or do
anything to stop it.” To address this “leadership void,” the
Inspector General recommended that “line supervisors
undergo leadership training” and that “subordinate staff
undergo re-training with emphasis on inmate con games and
ethical behavior.”
In the wake of the Inspector General’s report, which ignited
“very high profile” media coverage, CCA announced that it
was terminating its contract to operate SNWCF. NDOC
BREINER v. NEVADA DEP’T OF CORRECTIONS 9677
resumed control of the facility and, according to Crawford,
faced intense political pressure to “mitigate the number of
newspaper articles” and to “assure the State of Nevada that
we would not be embarrassed like this again.” To achieve this
goal, Crawford decided to restaff the facility so that seventy
percent of the front line staff at SNWCF would be women.
Crawford also decided to hire only women in SNWCF’s
three correctional lieutenant positions. The correctional lieu-
tenants are shift supervisors and are the senior employees on
duty seventy-five percent of the time. Correctional lieutenants
report to wardens or deputy wardens and are responsible for
supervising the prison’s day-to-day operations, including
directing the work of subordinate staff, inspecting the facility
and reporting infractions, and monitoring inmates’ activities
and movement through the facility. There is one correctional
lieutenant assigned to SWNCF per shift. Although the correc-
tional lieutenant posting specified that “only female appli-
cants will be accepted for these positions,” several males
applied for the positions, which were eventually filled by
three women.
Edward Breiner, Loren Chapulin, Jimmie McNeal and
Randy Stout, the present plaintiffs, all male Nevada correc-
tional officers, were not among the men who applied for the
SNWCF correctional lieutenant positions. They nonetheless
filed charges with the Equal Employment Opportunity Com-
mission, received notice of their right to sue, and filed suit
alleging that the state’s decision to limit the correctional lieu-
tenant positions to women violated Title VII’s prohibition on
sex discrimination in employment.1
The district court granted NDOC’s motion for summary
judgment, holding that the gender restriction on the three cor-
1
The only claim before us is a Title VII claim against NDOC with
regard to the correctional lieutenant positions. The seventy-percent-female
restriction on front line guards is not at issue in this litigation.
9678 BREINER v. NEVADA DEP’T OF CORRECTIONS
rectional lieutenant positions at SNWCF had a “de minimis”
impact on the plaintiffs’ overall promotional opportunities
within NDOC, and that it was therefore unnecessary to decide
whether the positions fell within Title VII’s exception for jobs
in which sex is a bona fide occupational qualification
(BFOQ), 42 U.S.C. § 2000e-2(e)(1). Alternatively, the district
court concluded that NDOC had carried its burden of proving
that “gender constitutes a BFOQ for the three correctional
lieutenant posts at SNWCF,” because the restriction was
designed to meet “NDOC’s goal of reversing the very real and
documented problems at SNWCF.”2 This timely appeal fol-
lowed.
STANDING
NDOC argues for the first time on appeal that because the
plaintiffs did not apply for the NDOC positions and would not
have been selected anyway for reasons other than their sex,
they lack standing to pursue their Title VII claim. As standing
is a jurisdictional requirement, we must consider NDOC’s
argument before reaching the merits of the plaintiffs’ Title
VII claim. See Pritikin v. Dep’t of Energy, 254 F.3d 791, 796
(9th Cir. 2001). We review the plaintiffs’ standing de novo,
Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010),
and conclude that Stout, at least, has standing, as we now
explain.
[1] To have standing in this case, a plaintiff must demon-
strate a “concrete and particularized” injury, “fairly traceable”
to NDOC’s discriminatory policy, and “likely” to be “re-
dressed by a favorable decision” of this court. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal
quotation marks, brackets and ellipses omitted). That the
2
The district court denied without analysis several evidentiary objec-
tions raised by the plaintiffs. As we reverse the grant of summary judg-
ment on other grounds, we do not reach the plaintiffs’ contention that the
rejection of their objections was error.
BREINER v. NEVADA DEP’T OF CORRECTIONS 9679
plaintiffs did not apply for the correctional lieutenant posi-
tions does not preclude them from establishing such an injury.
A nonapplicant suffers “an invasion of a legally protected
interest,” id. at 560, under Title VII if “he would have applied
for the job had it not been for [the employer’s discriminatory]
practices.” Int’l Bhd. of Teamsters v. United States, 431 U.S.
324, 368 (1977). To prevail on the merits as nonapplicants,
the plaintiffs must show that they were “discouraged from
applying” rather than that they “simply failed to do so.” Yartz-
off v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987); see also
Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761-62 (9th
Cir. 1980).
[2] Stout had previously applied for correctional lieutenant
positions. He declared under oath that he was deterred from
applying for the SNWCF positions “by [his] knowledge that
[his] application would be futile because of the defendant’s
discriminatory policy.” This evidence is sufficient on sum-
mary judgment to establish Stout’s standing under the case
law applicable to nonapplicants.
NDOC contends that, whether or not the gender restrictions
discouraged the plaintiffs from applying, none of them would
have qualified for the SNWCF positions even if they had been
open to applicants of both sexes. Applicants for the SNWCF
correctional lieutenant positions were required to possess one
year of experience as a correctional sergeant (the rank below
correctional lieutenant) in the state of Nevada, or “an equiva-
lent combination of education and experience.” Stout had
been a correctional sergeant since 1998. NDOC’s own per-
sonnel analyst affirmed that Stout “would have qualified for
a correctional lieutenant position with NDOC in 2004.”
NDOC’s assertion that Stout was ineligible for the SNWCF
positions because “he had expired from the Correctional Lieu-
tenant certification list” is not supported by the record. The
posting for the correctional lieutenant positions specified that
applicants must possess a driver’s license, pass a drug test,
9680 BREINER v. NEVADA DEP’T OF CORRECTIONS
and satisfy Nevada’s “P.O.S.T. requirements” (police officer
standard training),3 but contained no reference to a “certifica-
tion list.” Indeed, Crawford stated that “people who had
applied [for the correctional lieutenant positions] had to go
back up through personnel to make sure they met those quali-
fications . . . for the lieutenant. And, then, I get a certified list
. . . that means State Personnel has screened and has certified
a list that we, then, have to work from.” This statement makes
clear that a list was created of all qualified applicants; inclu-
sion on the list was not a preapplication job requirement.
Moreover, even if such a preapplication list existed, there is
no basis for concluding that Stout could not have renewed his
eligibility in time to apply for the positions had he not been
dissuaded from doing so by the female-only restriction.
[3] In sum, we conclude that besides the female-only
restriction, “there was no other qualification standard that pre-
vented [Stout] from applying for the job. He accordingly sat-
isfies the injury, causation, and redressability prongs of Lujan,
and therefore has standing.” Bates v. UPS, Inc., 511 F.3d 974,
988 (9th Cir. 2007) (en banc). As Stout, at least, has standing
to pursue this appeal, we need not determine whether
Chapulin and McNeal have standing to seek relief under Title
VII. See id. at 985.
TITLE VII CLAIM
[4] It is unlawful, with narrow exceptions, “to fail or refuse
to hire . . . any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such individu-
al’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Failure to promote
is actionable under Title VII. See, e.g., McGinest v. GTE Serv.
Corp., 360 F.3d 1103, 1121-22 (9th Cir. 2004). NDOC con-
3
NDOC does not argue that these requirements would prevent Stout
from qualifying for the positions.
BREINER v. NEVADA DEP’T OF CORRECTIONS 9681
cedes that its refusal to consider men for the correctional lieu-
tenant positions at SNWCF is facially discriminatory.
The district court granted summary judgment to NDOC on
two alternative grounds. First, the district court concluded that
NDOC’s refusal to hire male correctional lieutenants at
SNWCF had a negligible impact on the plaintiffs’ promo-
tional opportunities in light of the correctional lieutenant posi-
tions available statewide to employees of both sexes. The
district court held that this “de minimis” discrimination was
not actionable under Title VII. Second, the district court held
that, even if actionable, the gender restriction on correctional
lieutenant positions at SNWCF fell within Title VII’s BFOQ
exception for “those certain instances where . . . sex . . . is a
bona fide occupational qualification reasonably necessary to
the normal operation of [a] particular business or enterprise.”
42 U.S.C. § 2000e-2(e)(1). We review the grant of summary
judgment de novo, McDonald v. Sun Oil Co., 548 F.3d 774,
778 (9th Cir. 2008), and reverse as to both grounds.
A. The “De Minimis” Theory
NDOC asserts that the three SNWCF positions were the
only correctional lieutenant promotions in the NDOC system
as a whole restricted to women applicants and that twenty-
nine out of thirty-seven correctional lieutenant positions filled
over a four year period went to men. Relying on these statis-
tics, NDOC maintains that the concededly discriminatory pol-
icy of excluding men from the SNWCF correctional
lieutenant positions had only a “de minimis” impact on the
plaintiffs and so did not violate Title VII with regard to them.
This conclusion reflects a fundamental misunderstanding of
the basic precepts of Title VII and is not supported by our
case law.
[5] It is beyond dispute that the denial of a single promo-
tion opportunity such as the one here at issue is actionable
under Title VII. See Ricci v. DeStefano, 129 S. Ct. 2658, 2671
9682 BREINER v. NEVADA DEP’T OF CORRECTIONS
(2009) (finding for plaintiffs who “were denied a chance at
promotions”); Alvarado v. Tex. Rangers, 492 F.3d 605, 612
(5th Cir. 2007) (“It is . . . well established . . . that the denial
of a promotion is an actionable adverse employment action.”)
(emphasis omitted); McGinest, 360 F.3d 1121-22. Whether
there will be other promotional opportunities for which the
person may become eligible has never been a consideration.
Here, for example, the correctional lieutenant position pays
more than the correctional sergeant job. It is also a prerequi-
site for the more senior, more responsible, and higher paying
position of associate warden. That another opportunity may
later arise for which the applicant is eligible does not negate
the injury of being denied an earlier position on the basis of
one’s sex, with the resulting loss of pay for a period and
delayed eligibility for another promotion.
[6] Stout, for instance, was later promoted to correctional
lieutenant, but had he been promoted to a SNWCF position,
he would have earned more during the period before his even-
tual promotion and would have become eligible for promotion
to an associate warden position two years earlier than he did.
Moreover, correctional lieutenant jobs in Nevada prisons are
not fungible from the point of view of employees, as illus-
trated by Stout’s declaration that the SNWCF positions were
desirable to him because the facility’s location “would not
have required selling my house and causing my wife to quit
her job to relocate.” As Stout’s example demonstrates, an
employee who is denied a promotion on the basis of sex but
later promoted has not been “restor[ed] to the position in
which [he] would have been absent the discrimination.”
EEOC v. Hacienda Hotel, 881 F.2d 1504, 1518 (9th Cir.
1989), overruled on other grounds by Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742 (1988).
[7] Further, Title VII is offended when an individual suf-
fers discrimination with respect to a particular adverse
employment decision, even if others of the same protected
BREINER v. NEVADA DEP’T OF CORRECTIONS 9683
group are not similarly disadvantaged. See Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 579 (1978) (“A racially bal-
anced work force cannot immunize an employer from liability
for specific acts of discrimination.”). The fact that on average
men are more likely than women to be hired into correctional
lieutenant positions might have some relevance if NDOC dis-
puted the discriminatory nature of the policy. See Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 153 (2000) (hold-
ing that the existence of many similarly situated employees
over age 50 was “relevant, [but] certainly not dispositive” of
the employer’s lack of intent to discriminate against the plain-
tiff on the basis of age). It has no bearing, however, on the
question whether a man denied a specific promotional oppor-
tunity expressly on the basis of his sex can establish a Title
VII violation. “[T]he obligation imposed by Title VII is to
provide an equal opportunity for each applicant regardless of
[sex], without regard to whether members of the applicant’s
[sex] are already proportionately represented in the work
force.” Furnco, 438 U.S. at 579. Put another way, Title VII
protects the ability to pursue one’s own career goals without
being discriminated against on the basis of race or sex, even
if others of the same race or sex were not subject to disadvan-
tage.
In holding otherwise, the district court relied on Robino v.
Iranon, 145 F.3d 1109 (9th Cir. 1998) (per curiam). Robino,
however, is inapposite. The policy at issue in Robino
restricted job responsibilities, not employment or promotional
opportunities. Id. at 1110. Robino does not suggest—nor
could it, for the reasons we have discussed—that a refusal to
hire an individual because of sex can be considered “de
minimis” because others of the same sex were hired.
Specifically, Robino concerned prison officials’ decision to
assign only female guards to six “posts” in a women’s prison
—those from which the guard could observe inmates in the
shower—to “accommodate the privacy interests of the female
inmates and reduce the risk of sexual conduct between
9684 BREINER v. NEVADA DEP’T OF CORRECTIONS
[guards] and inmates.”4 Id. The plaintiffs in Robino were cur-
rent male guards complaining that female guards—individuals
holding the same position—were to a limited degree given
different job assignments within the same job category. It was
in this context that Robino held that the post-restriction policy
“limits eligibility for such a small number of positions (six
out of forty-one) that it imposes such a de minim[i]s restric-
tion on the male [guards’] employment opportunities.” Id.
Thus, the restriction in Robino was “de minimis” not, as the
district court thought, because a small proportion of positions
were affected, but because “male [guards had] not suffered
any tangible job detriment beyond a reduced ability to select
their preferred watches.” Id.; see also Jordan v. Gardner, 986
F.2d 1521, 1527 (9th Cir. 1993) (“The conflict between the
right of [male guards] not to be discriminated against in job
opportunities and [female inmates] to maintain some level of
privacy has normally been resolved . . . through adjustments
in scheduling and job responsibilities for the guards.” (quota-
tions and citation omitted)); Tharp v. Iowa Dep’t of Corr., 68
F.3d 223, 226 (8th Cir. 1995) (approving a policy that
restricted four out of sixteen shifts to women); Hardin v.
Stynchcomb, 691 F.2d 1364, 1373 (11th Cir. 1982) (“Since
the majority of . . . positions in the male section of the jail do
not require . . . observation of inmates’ use of shower or toilet
facilities, . . . modification of the system of rotating . . .
assignments will avoid the clash between privacy rights and
equal employment opportunities.”).
[8] Robino’s premise, then, was necessarily that a minor
impact on job assignments was too minimal to be actionable.
4
Although the opinion is not pellucid on this point, the briefs in Robino
make clear that a “post” is an assignment to a particular geographic loca-
tion. Not all of the twenty-one “posts” were staffed on all shifts (or
“watches”). A total of forty-one posts were staffed in a twenty-four hour
period. See Brief of Defendant-Appellee at 6, Robino, 145 F.3d 1109 (No.
97-16470).
BREINER v. NEVADA DEP’T OF CORRECTIONS 9685
This very limited concept has no application to NDOC’s pol-
icy. An employer’s “fail[ure] or refus[al] to hire” on the basis
of sex is, without limitation, actionable under Title VII. 42
U.S.C. § 2000e-2(a)(1). NDOC’s refusal to hire men in the
correctional lieutenant positions therefore violates Title VII
unless NDOC can demonstrate that gender is a BFOQ for the
positions. NDOC cannot meet that burden, as we now explain.
B. Gender as a Bona Fide Occupational Qualification
[9] Title VII’s BFOQ exception provides:
[I]t shall not be an unlawful employment practice for
an employer to hire and employ employees . . . on
the basis of [ ] religion, sex, or national origin in
those certain instances where religion, sex, or
national origin is a bona fide occupational qualifica-
tion reasonably necessary to the normal operation of
that particular business or enterprise.
42 U.S.C. § 2000e-2(e)(1). As its language indicates, see Int’l
Union, UAW v. Johnson Controls, 499 U.S. 187, 201 (1991),
the BFOQ is an “extremely narrow exception to the general
prohibition of discrimination on the basis of sex” that may be
invoked “only when the essence of the business operation
would be undermined” by hiring individuals of both sexes.
Dothard v. Rawlinson, 433 U.S. 321, 333-34 (1977) (citing
Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th
Cir. 1971)). To justify discrimination under the BFOQ excep-
tion, an employer must
prove by a preponderance of the evidence: 1) that the
job qualification justifying the discrimination is rea-
sonably necessary to the essence of its business; and
2) that [sex] is a legitimate proxy for the qualifica-
tion because (a) it has a substantial basis for believ-
ing that all or nearly all [men] lack the qualification,
or . . . (b) it is impossible or highly impractical . . .
9686 BREINER v. NEVADA DEP’T OF CORRECTIONS
to insure by individual testing that its employees will
have the necessary qualifications for the job.
EEOC v. Boeing Co., 843 F.2d 1213, 1214 (9th Cir. 1988)
(quotations omitted).
NDOC has not explicitly articulated the “job qualification”
for correctional lieutenants for which it claims sex is a legiti-
mate proxy. We are left to try to adduce what that “qualifica-
tion” might be from the declarations by NDOC officials on
which the defendants rely in their briefs as justification for the
facially discriminatory policy.
NDOC Director Crawford offered the following explana-
tion for the decision to exclude men from the correctional
lieutenant positions:
• [T]he number of officers who were supervisors
[when CCA operated the facility] were males . . .
They were the individuals who alleged that they
did not know anything about the drugs, alcohol,
and sex.
• [Correctional lieutenants] are the individuals that
can monitor and best, you know, gauge if there is
something going on.
• We wanted upper management to be able to mon-
itor, to understand, and notice anything that went
on. We had so many people telling us during the
private sector that nothing was going on. . . . We
just felt comfortable with doing this.
Glen Whorton, the director of NDOC from 2005 to 2007,
declared that
the employment of male correctional lieutenants at
SNWCF would create a real risk . . . if female
BREINER v. NEVADA DEP’T OF CORRECTIONS 9687
inmates were sexually assaulted abused by male cor-
rectional lieutenants and/or male . . . subordinates
and such abuse was kept silent by the male correc-
tional lieutenants . . . because they were protecting
themselves and/or their . . . subordinates (“code of
silence”).
Whorton described the risks entirely in terms of the opportu-
nities for misconduct inherent in the correctional lieutenant
role:
male correctional lieutenants would have the oppor-
tunity to place male correctional subordinates in situ-
ations lending themselves to sexual misconduct with
female inmates. . . . Male correctional lieutenants
would have the opportunity not to take action against
male correctional subordinates that sexually abused
female inmates. . . . male correctional lieutenants
would have the opportunity to allow contraband to
enter SNWCF . . . in exchange for sexual favors.
Female correctional lieutenants, according to Whorton,
are more inclined to monitor and discipline the
wrongful conduct of correctional subordinates and to
take steps of prevention with respect to female
inmates as their very nature, womanhood, is more
conducive to dealing with the complexities and dif-
ferences of female inmates.
Crawford also testified that she wanted correctional lieuten-
ants who
understand[ ] management of women. I think that
women do have an innate ability to manage women.
. . . To understand[ ] some of the emotional out-
breaks. . . . With women—I don’t believe that they
can be manipulated . . . I just believe [women] are
9688 BREINER v. NEVADA DEP’T OF CORRECTIONS
more patient. They’re probably more maternal. . . .
they have an instinct and an innate ability to discern
what is real and what isn’t. . . . the female officers
were able to better discern, you know, what’s really
happening here.
[10] From this panoply of explanations, it appears that
NDOC administrators sought to “reduce the number of male
correctional employees being compromised by female
inmates,” and that they believed the gender restriction on shift
supervisors would accomplish this because (1) male correc-
tional lieutenants are likely to condone sexual abuse by their
male subordinates; (2) male correctional lieutenants are them-
selves likely to sexually abuse female inmates; and (3) female
correctional lieutenants possess an “instinct” that renders
them less susceptible to manipulation by inmates and there-
fore better equipped to fill the correctional lieutenant role.5
[11] The first theory fails because NDOC has not shown
that “all or nearly all” men would tolerate sexual abuse by
male guards, or that it is “impossible or highly impractical”
to assess applicants individually for this qualification. Boeing,
843 F.2d at 1214. As to the second theory, there is no “basis
in fact,” Dothard, 433 U.S. at 335, for believing that individu-
als in the correctional lieutenant role are particularly likely to
sexually abuse inmates. The third theory—and, to a signifi-
5
NDOC also suggests that privacy and rehabilitation were among the
“factors . . . considered important” in implementing the gender restriction.
Neither in its briefs nor at oral argument, however, was NDOC able to
direct the court to any evidence that Crawford or other administrators
actually considered privacy or rehabilitation in developing the policy. This
void is not surprising, as it is the guards who have direct daily contact with
the inmates, not the correctional lieutenants. As noted, NDOC, in a sepa-
rate policy not here challenged, restricts the number of front line guards
in female prisons. As there is no evidence in this record to indicate that
concern about privacy or rehabilitation was a basis for the decision to pre-
clude men from serving in the supervisory positions, we do not consider
those rationales in our BFOQ analysis.
BREINER v. NEVADA DEP’T OF CORRECTIONS 9689
cant degree, the first two—relies on the kind of unproven and
invidious stereotype that Congress sought to eliminate from
employment decisions when it enacted Title VII.
We begin our analysis by surveying the decisions applying
the BFOQ exception in the prison context. Dothard, the only
Supreme Court case on the subject, concerned a “peculiarly
inhospitable” maximum security prison for men where condi-
tions were so atrocious as to be “constitutionally intolerable,”
and “a substantial portion of the inmate population [was]
composed of sex offenders mixed at random with other pris-
oners.” 433 U.S. at 334, 336. In the context of this extreme
environment, the Supreme Court upheld a regulation prohibit-
ing women from working in “positions requiring continual
close physical proximity to inmates,” id. at 325, finding
“[m]ore [ ] at stake . . . than an individual woman’s decision
to weigh and accept the risks” of working in “a prison system
where violence is the order of the day.” Id. at 335-36. The
Court found “a basis in fact for expecting that sex offenders
who have criminally assaulted women in the past would . . .
do so again if access to women were established within the
prison.” Id. at 335. “The likelihood that inmates would assault
a woman because she was a woman would pose a real threat
to . . . the basic control of the penitentiary.” Id. at 336.
As the Court later noted, “[s]ex discrimination was toler-
ated [in Dothard] because sex was related to the guard’s abil-
ity to do the job—maintaining prison security.” Johnson
Controls, 499 U.S. at 202. In other words, Dothard’s finding
of a BFOQ was premised on a level of violence among
inmates atypical even among maximum security facilities. See
Gunther v. Iowa State Men’s Reformatory, 612 F.2d 1079,
1085 (8th Cir. 1980) (distinguishing Dothard’s finding of a
BFOQ, which was premised on the prison’s “rampant vio-
lence and inhuman conditions,” as inapplicable to a medium
security institution) (quotation omitted), overruled on other
grounds by Kremer v. Chem. Constr. Corp., 456 U.S. 461
(1982).
9690 BREINER v. NEVADA DEP’T OF CORRECTIONS
Appellate courts, including this court, have followed Dot-
hard in requiring prison administrators to identify a concrete,
logical basis for concluding that gender restrictions are “rea-
sonably necessary.”6 42 U.S.C. § 2000e-2(e)(1). In Everson v.
Michigan Department of Corrections, 391 F.3d 737 (6th Cir.
2004), the Sixth Circuit upheld a gender restriction imposed
by the Michigan Department of Corrections (MDOC) to erad-
icate “rampant sexual abuse of female prisoners.” Id. at 739.
MDOC had “pledged . . . to minimize access to secluded areas
and one-on-one contact between male staff and female
inmates” pursuant to settlement of two lawsuits, one brought
by the United States Department of Justice, alleging that the
failure to protect female inmates from ongoing sexual abuse
violated their constitutional rights. Id. at 743. To effectuate
the settlement agreements, MDOC employed only female
guards in the housing units of women’s prisons. MDOC data
showed that most allegations of sexual abuse, and all of the
sustained allegations, involved male employees, and that sex-
ual abuse occurred most frequently in the housing units. This
data, the court held, “established that the exclusion of male
[guards] will decrease the likelihood of sexual abuse.” Id. at
755.
In Henry v. Milwaukee County, 539 F.3d 573 (7th Cir.
2008), a juvenile detention center decided to staff each hous-
ing “pod” with at least one guard of the same sex as the juve-
niles housed on that pod, to achieve a “direct role
model/mentoring form of supervision.” 539 F.3d at 583. Dur-
ing the day, one of the two guards on each male “pod” could
be female, but the sole night shift slot on each pod had to be
staffed by a man. The Seventh Circuit accepted the adminis-
trator’s “professional judgment” that same-gender mentoring
6
Judgments by prison administrators that “are the product of a reasoned
decision-making process, based on available information and experience,”
are entitled to some deference. Robino, 145 F.3d at 1110 (quoting Torres
v. Wis. Dep’t. of Health & Social Servs., 859 F.2d 1523,1532 (7th Cir.
1988)).
BREINER v. NEVADA DEP’T OF CORRECTIONS 9691
was “necessary to achieve the [facility’s] mission of rehabili-
tation.” Id. Yet, the court found no factual support for the
administrator’s conclusion that the program’s effectiveness
required same-sex staff at all times, including on the night
shift, when the juvenile inmates were sleeping. Id.
In Robino, we held that even had the gender-based restric-
tion on assignments been actionable under Title VII, it fell
within the BFOQ exception. The prison, based on “a study
conducted by a specially appointed task force in compliance
with an EEOC settlement agreement,” designated as female-
only those posts that “require[d] the [guard] on duty to
observe the inmates in the showers and toilet areas . . . or pro-
vide[d] unsupervised access to the inmates.” 145 F.3d at
1110-11. Because “a person’s interest in not being viewed
unclothed by members of the opposite sex survives incarcera-
tion,” we held that protecting inmate privacy and preventing
sexual misconduct warranted the restriction. Id. at 1111.
[12] These cases illustrate that, even in the unique context
of prison employment, administrators seeking to justify a
BFOQ must show “a high correlation between sex and ability
to perform job functions.” Johnson Controls, 499 U.S. at 202.
Moreover, the particular staffing restriction at issue must
match those “job functions” with a high degree of specificity
to be found reasonably necessary. See id. (noting that in Dot-
hard the Court “refused to allow employers to use sex as a
proxy for strength although it might be a fairly accurate one”);
Robino, 145 F.3d at 1111 (concluding that guard’s gender
directly affected female inmates’ privacy concerns). In Henry,
for example, the application of the gender restriction on the
night shift would not address privacy concerns, as “the vast
majority of the time that the juveniles were unclothed
occurred during [ ] daytime shifts” when women were permit-
ted to staff the pods, 539 F.3d at 582, and was not justified
by the mentoring objective because “the opportunity . . . to
interact with the juveniles on the [night] shift [wa]s very mini-
mal.” Id. at 585.
9692 BREINER v. NEVADA DEP’T OF CORRECTIONS
Applying this “high correlation” requirement, NDOC’s first
rationale for restricting the supervisory correctional lieutenant
positions to women cannot suffice. Crawford’s testimony sug-
gests that because the supervisors employed by CCA were
male and had failed to prevent sexual abuse, NDOC was enti-
tled to conclude that men as a class were incapable of ade-
quately supervising front line staff in female prisons. While
we must defer to the reasoned judgment of prison administra-
tors, see Robino, 145 F.3d at 1110, CCA’s acknowledged
leadership failure falls far short of providing “a factual basis
for believing that all or substantially all [men] would be
unable to safely and effectively perform the duties of the job,”
or that it would be “impossible or highly impracticable to
determine job fitness”—here, the ability to enforce workplace
rules prohibiting sexual misconduct—”on an individualized
basis.” Williams v. Hughes Helicopters, Inc., 806 F.2d 1387,
1391 (9th Cir. 1986).7 The fundamental switch in operational
responsibility to NDOC, moreover, made any inference from
the experience under CCA’s extremely poor management all
the weaker.
NDOC’s second rationale fares no better. There is no evi-
dence indicating that any correctional lieutenant at SNWCF
had sexual relationships with an inmate.8 In contrast, in Ever-
son, copious data about the actual incidence of sexual abuse
in Michigan’s women’s prisons supported the conclusion that
the gender restriction on guards in the housing units would be
7
Williams applied the BFOQ exception to the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 623(f)(1), Williams, 608 F.2d at
1389, which “tracks the BFOQ provision in Title VII.” Johnson Controls,
499 U.S. at 201.
8
NDOC’s brief asserts that “Crawford discovered that many of the cor-
rectional employees compromised at SNWCF were males in supervisory
positions.” The citation to the record, however, shows that the “compro-
mised” men in supervisory roles were “the individuals who alleged that
they did not know anything about the drugs, alcohol and sex.” Correc-
tional lieutenants at SNWCF may have turned a blind eye to sexual abuse,
but nothing in the record suggests they committed it themselves.
BREINER v. NEVADA DEP’T OF CORRECTIONS 9693
effective. 391 F.3d at 755. In Robino, prison administrators
used “a study by a specially appointed task force” and “an
extensive inventory of post duties” to limit the gender restric-
tion to those posts that “provide[d] unsupervised access to the
inmates.” 145 F.3d at 1111. NDOC, however, offers neither
data nor logical inferences about the opportunities for abuse
inherent in the correctional lieutenant position to support the
restriction.
In fact, the one substantiated case of sexual abuse Crawford
mentioned was the front line guard who impregnated an
inmate, yet NDOC continues to employ men in thirty percent
of these positions. See Everson, 391 F.3d at 761 (“[n]either
the district court nor the plaintiffs have explained how rede-
ployment of female supervisors to the housing units [the alter-
native advocated by the plaintiffs,] would cure problems
stemming from the very presence of male [guards] in the
housing units.”). When asked why the complete prohibition
on the hiring of men was limited to correctional lieutenants,
Crawford stated, “We did not want to go globally on this. We
wanted to be specifically, what can we do to bring this thing
under control . . . ? And it was the recommendation that we
just look at . . . not the line level, but the supervisor level.”
This explanation falls short of the “reasoned decision-making
process, based on available information and experience,”
Robino, 145 F.3d at 1110, that can support a BFOQ.9
9
NDOC points to a report by the National Institute of Corrections (NIC)
as evidentiary support for the claim that same-sex supervision “will likely
decrease the number” of claims of sexual abuse. However, the NIC
report’s recommendation as to “supervision” clearly refers to the supervi-
sion of inmates by guards, not of guards by management employees. See-
BARBARA BLOOM ET AL., GENDER-RESPONSIVE STRATEGIES: RESEARCH,
PRACTICE, AND GUIDING PRINCIPLES FOR WOMEN OFFENDERS at 120 (National
Institute of Correction, 2003) (“Same sex supervision lessens the likeli-
hood of sexual misconduct . . . [t]he most visible claims [of sexual mis-
conduct] are those brought against males who are supervising female
inmates.”). The report provides no support for the decision to eliminate
male correctional lieutenants while continuing to hire men in thirty per-
cent of the front-line guard positions. (We do not mean to suggest that
NDOC’s gender restriction would have met the BFOQ standard if it com-
passed all SNWCF’s correctional officer positions, as the issue is not
before us.)
9694 BREINER v. NEVADA DEP’T OF CORRECTIONS
Even if there were a factual basis to believe that any correc-
tional lieutenant sexually abused any inmate, there is no basis
to presume that sexual abuse, by correctional lieutenants or by
guards with their supervisors’ tacit permission, would con-
tinue after the state resumed control over the prison. CCA’s
lax oversight provided male correctional lieutenants “the
opportunity not to take action against male correctional subor-
dinates that sexually abused female inmates.” That opportu-
nity cannot be presumed to exist after the wholesale change
of SNWCF’s leadership, designed precisely to cure wholesale
management defects going well beyond the sexual abuse
issue.
To hold otherwise would be to absolve NDOC from their
fundamental responsibility to supervise their staff, from war-
dens to front-line guards. In Dothard, the inmates’ violent
behavior, which prison administrators could not directly con-
trol, rendered the gender restriction reasonably necessary.
Neither Dothard nor any of the cases on which NDOC relies
support finding a BFOQ based on the bald assertion that it
would be “impossible . . . to ensure that any given male cor-
rectional lieutenant will take action to prevent and stop sexual
misconduct.” Where, as here, the problem is employee behav-
ior, prison administrators have multiple resources, including
background checks, prompt investigation of suspected mis-
conduct, and severe discipline for infractions, to ensure com-
pliance with institutional rules.
NDOC has not demonstrated that these alternative
approaches—including the Inspector General’s suggestion of
enhanced training for both supervisors and front-line guards
—are not viable. See Henry, 539 F.3d at 581 (“Milwaukee
County offered no reasons why the numerous alternatives to
same-sex staffing . . . would not have mitigated any con-
cern.”); Forts v. Ward, 621 F.2d 1210, 1216 (2d Cir. 1980)
(upholding a district court order “prohibit[ing] the stationing
of male guards at locations where inmates could be viewed
. . . unclothed” but reversing a ban on male guards during the
BREINER v. NEVADA DEP’T OF CORRECTIONS 9695
night shift because inmate privacy could be protected by
means that did not infringe on employment rights); Gunther,
612 F.2d at 1087 (holding that gender was not a BFOQ where
administrative changes in job functions and procedures would
adequately protect inmate privacy). Whorton’s conclusory
assertion that “more training is not a cure for this serious
issue” is, without more, wholly inadequate. Even the NIC
report, on which NDOC purportedly relied, recommends “im-
proving training programs to heighten staff awareness of [sex-
ual abuse] and its consequences.”
[13] Disturbingly, in suggesting that all men are inherently
apt to sexually abuse, or condone sexual abuse of, female
inmates, NDOC relies on entirely specious gender stereotypes
that have no place in a workplace governed by Title VII.
NDOC’s third theory, that women are “maternal,” “patient,”
and understand other women, fails for the same reason. To
credit NDOC’s unsupported generalization that women “have
an instinct and an innate ability to discern . . . what’s real and
what isn’t” and so are immune to manipulation by female
inmates would violate “the Congressional purpose to elimi-
nate subjective assumptions and traditional stereotyped con-
ceptions regarding the . . . ability of women to do particular
work.” Rosenfeld v. S. Pac. Co., 444 F.2d 1219, 1225 (9th
Cir. 1971); see also Diaz, 442 F.2d at 386 (rejecting an air-
line’s contention that “the special psychological needs of its
passengers . . . are better attended to by females”). “The
harmful effects of occupational cliches,” Gerdom v. Continen-
tal Airlines, 692 F.2d 602, 607 (9th Cir. 1982), are felt no less
strongly when invoked as a basis for one gender’s unique suit-
ability for a particular job than when relied on to exclude
members of that sex from employment. Simply put, “we are
beyond the day when an employer could . . . insist[ ] that
[employees] matched the stereotype associated with their
group.” Price Waterhouse v. Hopkins, 490 U.S. 228, 251
(1989).
[14] A BFOQ can be established only by “objective, verifi-
able requirements [that] concern job-related skills and apti-
9696 BREINER v. NEVADA DEP’T OF CORRECTIONS
tudes.” Johnson Controls, 499 U.S. at 201. Though the
professional judgment of prison administrators is entitled to
deference, see Robino, 145 F.3d at 1110, “[t]he refusal to hire
a [man] because of [his] sex based on assumptions of the
comparative employment characteristics of [men] in general”
will not support a BFOQ. 29 C.F.R. § 1604.2(a)(1); see also
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724-25
(1982) (“[A] gender-based classification . . . must be applied
free of fixed notions concerning the roles and abilities of
males and females.”); Dothard, 433 U.S. at 333 (“[I]t is
impermissible under Title VII to refuse to hire an individual
woman or man on the basis of stereotyped characterizations
of the sexes.”); Torres, 859 F.2d at 1527 (“Myths and purely
habitual assumptions about a woman’s or a man’s inability to
perform certain kinds of work are no longer acceptable rea-
sons for refusing to employ qualified individuals.”) (quoting
City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S.
702, 707 (1978) (brackets omitted)); Fernandez v. Wynn Oil
Co., 653 F.2d 1273, 1276 (9th Cir. 1981) (“[S]tereotypic
impressions of male and female roles do not qualify gender as
a BFOQ.”).
[15] In sum, NDOC has not met its burden of showing “a
basis in fact,” Dothard, 433 U.S. at 335, for concluding that
all male correctional lieutenants would tolerate sexual abuse
by their subordinates; that all men in the correctional lieuten-
ant role would themselves sexually abuse inmates; or that
women, by virtue of their gender, can better understand the
behavior of female inmates. Nor has it refuted the viability of
alternatives that would achieve that goal without impeding
male employees’ promotional opportunities.
CONCLUSION
[16] Restricting employment opportunity on the basis of
gender can be justified by the need to counter uncontrollably
violent inmate behavior, as in Dothard. But this case concerns
the behavior of employees, not inmates. Precluding men from
BREINER v. NEVADA DEP’T OF CORRECTIONS 9697
serving in supervisory positions in women’s prisons is not a
substitute for effective leadership and enforcement of work-
place rules. As NDOC’s correctional lieutenant restriction
denied promotional opportunities on the basis of sex and was
neither “de minimis” nor “reasonably necessary to the normal
operation” of SNWFC, 42 U.S.C. § 2000e-2(e)(1), it violated
Title VII. The district court’s order granting summary judg-
ment to the defendants is REVERSED, and this case is
REMANDED for further proceedings consistent with this
opinion.