Teamsters Local Union No. 117 v. Washington Department of Corrections

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TEAMSTERS LOCAL UNION NO. 117, No. 13-35331
a Washington corporation,
Plaintiff-Appellant, D.C. No.
3:11-cv-05760-
v. BHS

WASHINGTON DEPARTMENT OF
CORRECTIONS, OPINION
Defendant-Appellee,

JANE DOE CLASS,
Intervenor-Defendant–Appellee.

Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding

Argued and Submitted
December 9, 2014—Seattle, Washington

Filed June 12, 2015

Before: Michael Daly Hawkins, M. Margaret McKeown,
and Richard C. Tallman, Circuit Judges.

Opinion by Judge McKeown
2 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

SUMMARY*

Labor Law

Affirming the district court’s summary judgment, the
panel held that the Washington Department of Corrections
did not discriminate against male correctional officers on the
basis of sex in violation of Title VII by designating a number
of female-only correctional positions in women’s prisons.

The panel denied the Department’s motion to dismiss the
appeal, holding that the record, as supplemented on appeal,
established standing on the part of the correctional officers’
union.

On the merits, the panel concluded that the Department’s
individualized, well-researched decision to designate discrete
sex-based correctional officer categories was justified
because sex was a bona-fide occupational qualification
reasonably necessary to the normal operation of the women’s
prisons. The panel stated that the Department was
well-justified in concluding that rampant abuse should not be
an accepted part of prison life and taking steps to protect the
welfare of female inmates under its care.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 3

COUNSEL

Spencer Nathan Thal (argued), General Counsel, and Daniel
A. Swedlow, Senior Staff Attorney, Teamsters Local Union
No. 117, Tukwila, Washington, for Plaintiff-Appellant.

Peter B. Gonick (argued), Robert W. Ferguson, Attorney
General, Kara A. Larsen, Senior Counsel, and Ohad M.
Lowy, Assistant Attorney General, Washington State Office
of the Attorney General, Olympia, Washington, for Appellee.

Nicholas B. Straley (argued) and Melissa R. Lee, Columbia
Legal Services, Seattle, Washington, for Intervenor-
Defendants–Appellees.

OPINION

McKEOWN, Circuit Judge:

For years, Washington faced problems common to a
number of states in their women’s prisons: sexual abuse and
misconduct by prison guards, breaches of inmate privacy, and
security gaps. A primary driver, according to prison
authorities, was the lack of female correctional officers to
oversee female offenders and administer sensitive tasks, such
as observing inmates showering and dressing and performing
the pat (or “pat-down”) and strip searches that are stitched
into the fabric of day-to-day prison life. After long wrestling
with this gender gap, the state undertook a comprehensive
assessment and ultimately designated a limited number of
female-only correctional positions—specifically, 110
positions to patrol housing units, prison grounds, and work
sites. The prison guards’ union, Teamsters Local No. 117
4 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

(“Teamsters” or the “Union”), challenged this practice,
though it acknowledges the legitimacy of 50 of the female-
only designations. This case juxtaposes the prison’s
penological interests against male correctional officers who
claim the staffing policy discriminates against them on the
basis of sex in violation of Title VII of the Civil Rights Act
of 1964. 42 U.S.C. § 2000e.

We conclude that the Washington Department of
Corrections’ (the “Department” or the “state”) individualized,
well-researched decision to designate discrete sex-based
correctional officer categories was justified because sex is a
bona-fide occupational qualification (“BFOQ”) for those
positions. The Union’s thin evidentiary
submissions—coupled with expert claims that were largely
unsubstantiated or missed the point—failed to raise a material
factual issue. Indeed, the startling statement by one of the
Union’s experts underscores the legitimacy of the state’s
efforts to combat sexual abuse: “Sexual abuse is present in all
areas of our society. . .[F]emale inmates must be taught as
part of the rehabilitation process to deal with all abusive staff:
males and females . . .” The Department was well-justified
in concluding that rampant abuse should not be an accepted
part of prison life and taking steps to protect the welfare of
inmates under its care. We affirm the district court’s grant of
summary judgment in favor of the Department.

BACKGROUND

The Department runs two women’s prisons. The
Washington Corrections Center for Women in Gig Harbor
has a capacity of 738 inmates, although it is often
overcrowded. That prison runs the gamut from minimum
security facilities to housing for violent offenders and those
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 5

with mental health issues. It also houses Washington’s death
row for female prisoners. The second facility is Mission
Creek Corrections Center for Women in Belfair, a smaller
minimum-security prison that houses around 300 inmates.

For decades, men dominated the ranks of prison guards,
though neither party has provided precise figures. Facing a
shortage of female guards in the late 1980s, state prison
administrators began allowing male guards to perform
random, clothed body searches—commonly known as pat
searches—of the female inmates at Washington Corrections
Center. Female inmates challenged these cross-gender
searches as unconstitutional. The district court granted an
injunction and halted the practice. Sitting en banc, we
affirmed, concluding that cross-gender body searches inflict
unnecessary and wanton pain on female inmates, many of
whom have suffered a history of sexual abuse before
incarceration, and, therefore, violate the Eighth Amendment.1
Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en
banc). Under both Jordan and a later-enacted Washington
law, female correctional officers must perform all non-
emergency pat searches of female inmates. Wash. Rev. Code
§ 9.94A.631(2) (2012).

In the years following Jordan, the Department struggled
with the challenges posed by having an overwhelmingly male
workforce. In 1998, it asked the Washington Human Rights
Commission (the “Commission”) for an opinion on proposed
correctional assignments reserved exclusively for female

1
Experts in the case noted that 85% of female offenders reported a pre-
incarceration history of sexual abuse. Jordan, 986 F.2d at 1525–26.
6 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

officers. The Commission did not favor the Department’s
approach at that time.2

In 2003, Congress passed the Prison Rape Elimination
Act, which included findings that, based upon experts’
conservative estimates, 13% of prisoners had been sexually
assaulted while in prison. See 42 U.S.C. § 15601. The
legislation also noted that many instances of abuse go
unreported and prison personnel were inadequately trained to
deal with these issues. See id. §§ 15601–09. Under the Act,
the Department received a $1 million grant to hire two full-
time employees to investigate sexual misconduct allegations
in prisons.

In the years that followed, the Department fielded
widespread allegations of sexual abuse in its women’s
prisons. State officials, for example, substantiated 46
instances of misconduct in a single two-and-a-half-year
stretch. In the aftermath, in 2007, female inmates brought a
class action in state court alleging misconduct at the
Washington Corrections Center. The complaint detailed
incidents where guards assaulted and fondled female inmates
and forced them to perform oral sex and masturbate in the
presence of male officers. Complaint, Jane Doe v. Clarke,

2
The Human Rights Commission, established in 1949, is the
administrative agency responsible for administering and enforcing the
state’s antidiscrimination laws. See Wash. Rev. Code § 49.60.120 (2007).
The Commission’s view is treated as an “advisory interpretative
statement” under Washington Revised Code Section 34.05.010(8). Before
adopting female-only guard positions, the Department requested opinion
letters from the Commission. Teamsters Local Union No. 117 v. State of
Wash. Human Rights Comm’n, 235 P.3d 858, 860 (Wash. Ct. App. 2010).
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 7

No. 07-2-01513-0, Dkt. No. 4 (Thurston Co. Super. Ct. July
31, 2007).

Within a week of the filing of that lawsuit, the
Department hired a consultant to investigate sexual activity
and misconduct. After a four-month internal investigation,
the consultant detailed the facts in a 240-plus-page report.
The investigation included interviews with 72 “Jane Doe”
inmates, who alleged that they faced sexual advances and
harassment from prison guards. Among the lurid details,
male guards twice impregnated inmates and smuggled
contraband in exchange for sexual favors.

The Department also hired two additional consultants to
review prison practices. Marianne McNabb, of the Social
Research Institute based in Olympia, Washington, wrote:

Cross-sex supervision is currently one of the
most significant issues facing the
administration of women’s prisons. Today in
many states, over 50 percent of the custody
force in prisons for women are men. The fact
that so many women in prison have
experienced sexual abuse by men makes them
different from male prisoners who do not
share that history and therefore do not
experience the same level of anxiety or
violation as do women, when under the
custody or supervision of an officer of the
opposite sex.

McNabb noted that several jurisdictions, including Idaho
and Michigan, “have established sex-specific posts in female
institutions” in response to these dynamics. Her report
8 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

concluded, “While this may seem to be a solution for many
of the concerns identified, this practice is generally not fully
understood or accepted by staff and has faced some legal
challenges.”

Donald Kelchner, superintendent of the Pennsylvania
Department of Corrections, urged the Department to adopt a
host of reforms, including guard assignments reserved
specifically for women. In particular, Kelchner
recommended that the state ensure any double-staffed
housing units have at least one female guard. Kelchner
concluded, “It is more desirable in an institution housing
females to have a higher number of female staff, to work with
and supervise the inmates.”

Following the expert recommendations, the Department
in January 2008 implemented an array of reforms to “reduce
prison sexual assaults and related behavior.” Those efforts
included aggressive recruitment of female prison guards;
pre-hiring psychological testing; training programs to
enhance “gender awareness”; and the installation of privacy
curtains, security cameras, and restricted access entry cards.

Then, in May 2008, prison administrators again requested
guidance from the Commission on the Department’s
proposed 110 female-only guard post assignments at the two
prisons. The Department submitted a tailored request for
each post, explaining the job responsibilities and why the
positions needed a female officer. The state told the
Commission that “[i]ncreasing the number of female staff
will reduce the risk of sexual misconduct, reduce allegations
of sexual misconduct, and protect male staff exposed to
vulnerable situations” and unfounded complaints of abuse.
The state also emphasized the privacy requirements of female
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 9

inmates and the operational need to have female officers on
hand to perform necessary searches and other tasks. The
requested staffing changes, according to the state, would
“ensure the security of the prisons, safety of incarcerated
offenders, and protection of the privacy and dignity of female
offenders.”

After touring the prisons, interviewing administrators, and
collecting detailed documentation, the Commission in
February 2009 approved the Department’s request for all 110
positions. The Commission offered Teamsters the chance to
provide input but none was forthcoming. The Commission
determined that, with the then-existing staff makeup at the
prisons, the state was “unable to ensure a proper balance
between security considerations and the privacy rights of
offenders” and that there were no reasonable alternatives to
sex-based staffing.

The class action settled soon after. As part of the
settlement agreement, the Department agreed to enforce a
“zero tolerance” policy regarding sexual misconduct, not to
rehire five male correctional officers accused of abuse, and to
submit regular reports on staff misconduct in women’s
prisons. The settlement also included an undisclosed payout
to abused prisoners. Stipulation and Proposed Order, Jane
Doe v. Clarke, No. 07-2-01513-0, Dkt. No. 170 (Thurston Co.
Super. Ct. Aug. 6, 2010).

The Department’s reprieve from the courtroom did not
last long. In September 2011, Teamsters, which represents
some 6,000 state correctional workers, filed this federal
lawsuit, alleging that the sex-based staffing policy
10 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

implemented in 2009 violates the civil rights of male prison
guards.3

At the conclusion of discovery, the district court granted
summary judgment for the state. Teamsters Local Union No.
117 v. Wash. Dep’t of Corr., No. C11-5760 BHS, 2013 WL
1412335 (W.D. Wash. Apr. 8, 2013). The district court first
found that the Union had failed to demonstrate the type of
“cognizable injury” required to trigger Title VII liability. The
court noted that the record developed by Teamsters included
only “hypothetical evidence” of the damages its members
would face, thus entitling the state to summary judgment. Id.
at *4. Alternatively, the district court also granted summary
judgment for the state on the question of sex discrimination.
As an initial matter, the district court ruled that judicial
deference to state prison officials was warranted. Id. The
court concluded that, although there may have been factual
questions on whether female guards were needed inside the
housing units to prevent sexual assaults, the staffing policy
was justified as a BFOQ to protect the privacy of inmates for
each job category. Id. at 5–9.

ANALYSIS

I. STANDING

This case is a cautionary tale about the threshold
importance of standing. The state argues, for the first time on

3
Teamsters also represents female correctional officers. The Union
asserts in its brief that the female-only correction positions result in “an
increase in mandatory overtime” for female guards. The Union presented
no evidence to support that contention. Our analysis therefore focuses on
the male guards.
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 11

appeal, and after receiving Teamsters’ opening brief, that the
Union lacks standing because it produced no evidence that
any of its members suffered concrete injury. The issue is not,
as Teamsters urges, whether the question was addressed by
the district court; rather, as a jurisdictional matter, “a
challenge to constitutional standing is one which we are
required to consider” apart from whether it was argued or
addressed below. Laub v. U.S. Dep’t of Interior, 342 F.3d
1080, 1085 (9th Cir. 2003) (internal quotation mark and
citation omitted).

The standing inquiry is governed by the familiar elements
of injury-in-fact, traceability, and redressability. “To
establish Article III standing, an injury must be concrete,
particularized, and actual or imminent; fairly traceable to the
challenged action; and redressable by a favorable ruling.”
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013)
(internal quotation marks and citation omitted). For
associational standing, Teamsters must show in addition that
“its members would otherwise have standing to sue in their
own right.” Associated Gen. Contractors of Am., San Diego
Chapter v. Cal. Dep’t of Transp., 713 F.3d 1187, 1194 (9th
Cir. 2013). In other words, the Union “must show that a
member suffers an injury-in-fact that is traceable to the
defendant and likely to be redressed by a favorable decision.”
Id.

The complaint posited varied theories of injury: male
guards were forced to transfer jobs and prisons; suffered lost
earnings, including overtime pay; were laid off; and
experienced “loss of status, diminished sense of self-worth,
anxiety, emotional distress, embarrassment, humiliation,
mental anguish, and other related damages.” Surprisingly,
proof of these general allegations did not materialize as
12 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

evidence. The Union’s submissions on summary judgment
are thin, at best, in terms of identifying one or more specific
members who suffered injury. Ironically, it is the testimony
the Union elicited from the state that provides the strongest
support for the Teamsters’ constitutional standing.
Throughout discovery, the state did not dispute the general
allegations that its staffing policy resulted in the transfer of
male guards and lost overtime opportunities. While no
evidence linked a specific officer with a discrete wage loss,
Superintendent Doug Cole indicated that six male officers
had been displaced from their regular shifts—mentioning two
by name—and agreed with the Union’s lawyer that, with
respect to male correctional officers, the staffing changes
would result in “some reduction in their overtime opportunity
. . .” Every male correctional officer who was displaced from
his regular shift, however, was offered a position on a
different shift.

As the state points out, when a challenge to standing is
raised at summary judgment, a plaintiff organization must
“submit competent evidence, not mere allegations, to
demonstrate that at least one of its members had standing.”
Associated General, 713 F.3d at 1194. This is a settled
proposition, though curiously the state never moved for
summary judgment on standing nor contested the Union’s
standing allegations. Nonetheless, a party is not excused
from establishing standing simply because the opposing party
did not tumble to the issue until the appeals stage. See Gest
v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006) (“The[]
elements of standing must be supported in the same way as
any other matter for which a plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required
at the successive stages of the litigation.”).
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 13

In response to the state’s motion to dismiss on appeal,
Teamsters moved to supplement the record with affidavits
from five Union members and an administrator. Why this
evidence surfaced only on appeal is a mystery. Ordinarily,
we do not allow parties to supplement the record on appeal
absent “extraordinary circumstances.” United States v.
Boulware, 558 F.3d 971, 975–76 (9th Cir. 2009). Here,
however, we accept the affidavits for the limited purpose of
confirming the job-related harms that the Department
acknowledged in general terms during discovery. Doing so
is “in the interests of justice and efficiency,” Ouachita Watch
League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006)
(internal citation omitted), since the hiring policy has been on
the books since 2009 and has been the subject of multiple
proceedings; a remand or dismissal on procedural grounds
would merely prolong resolution of the underlying issues. In
the affidavits, male correctional officers assert that they have
suffered precisely the types of harm that the state
acknowledged in discovery—most importantly, lost overtime.

Although the Union hardly made a slam-dunk showing of
prospective harm, the record as supplemented on appeal
reflects the bare minimum necessary to satisfy the threshold
requirement of standing. The Department’s motion to
dismiss the appeal on standing grounds is denied.

II. TITLE VII AND THE BONA FIDE OCCUPATIONAL
QUALIFICATION

Title VII of the Civil Rights Act of 1964 prohibits
employment practices that discriminate on the basis of race,
color, religion, sex, or national origin. 42 U.S.C. § 2000e-2.
Nevertheless, a facially discriminatory employment practice,
such as the sex-based hiring practice we have here, may pass
14 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

legal muster if sex is a bona fide occupational qualification or
BFOQ. That narrow exception—found in § 2000e-2(e)(1)—
provides:

[I]t shall not be an unlawful employment
practice for an employer to hire and employ
employees . . . on the basis of . . . sex . . .
where . . . sex . . . is a bona fide occupational
qualification reasonably necessary to the
normal operation of that particular business or
enterprise.

The Supreme Court has emphasized that “[t]he BFOQ
defense is written narrowly, and this Court has read it
narrowly.” UAW v. Johnson Controls, Inc., 499 U.S. 187, 201
(1991). The BFOQ defense applies to “special situations”
where employment discrimination is based upon “objective,
verifiable requirements” that “concern job-related skills and
aptitudes.” Id. An “occupational qualification” means a
“qualification[] that affect[s] an employee’s ability to do the
job.” Id.

Under our precedent, the BFOQ defense “may be invoked
only when the essence of the business operation would be
undermined by hiring individuals of both sexes.” Breiner v.
Nev. Dep’t of Corr., 610 F.3d 1202, 1210 (9th Cir. 2010)
(emphasis in original) (internal quotation marks and citation
omitted). To justify discrimination under the BFOQ
exception, an employer must show, by a preponderance of the
evidence, that: (1) the “job qualification justifying the
discrimination is reasonably necessary to the essence of its
business”; and (2) that “sex is a legitimate proxy for
determining” whether a correctional officer has the necessary
job qualifications. Ambat v. City & Cty. of San Francisco,
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 15

757 F.3d 1017, 1025 (9th Cir. 2014) (quoting Breiner,
610 F.3d at 1210).

In light of these demanding legal standards, BFOQs are
few and far between. In many industries, it is difficult to
imagine any jobs that would qualify as BFOQs. However, the
“unique context of prison employment,” id. at 1028, is one
area where courts have found sex-based classifications
justified. The Supreme Court directly addressed the prison
environment in just one case, Dothard v. Rawlinson, 433 U.S.
321 (1977). The Court held that, in the context of a
maximum-security facility “where violence is the order of the
day” and sex offenders were interspersed with other
prisoners, a female guard’s sex may “undermine her capacity
to provide the security that is the essence of a correctional
counselor’s responsibility.” Id. at 335–36. Referencing
Dothard, the Court in Johnson Controls explained that “[s]ex
discrimination was tolerated because sex was related to the
guard’s ability to do the job—maintaining prison security.”
499 U.S. at 202.

When justified under the circumstances, we and other
circuits similarly have upheld sex-based correctional officer
assignments in women’s prisons. See Robino v. Iranon,
145 F.3d 1109, 1110 (9th Cir. 1998) (per curiam) (BFOQ
designation of six correctional officer positions at Hawaii
women’s prison); Everson v. Mich. Dep’t of Corr., 391 F.3d
737, 749–50 (6th Cir. 2004) (BFOQ designation of 250
correctional officer positions at Michigan women’s prisons);
Tharp v. Iowa Dep’t of Corr., 68 F.3d 223, 224 (8th Cir.
1995) (BFOQ designation of all correctional officer positions
in women’s residential unit within a mixed-gender minimum
security prison); cf. Torres v. Wisc. Dep’t of Health and Soc.
Servs., 859 F.2d 1523, 1532 (7th Cir. 1988) (en banc) (noting
16 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

that prison officials are not required to provide “objective
evidence, either from empirical studies or otherwise,” and
remanding the denial of a BFOQ designation for evaluation
“on the basis of the totality of the circumstances contained in
the entire record.”).

Although limited gender discrimination may be
permissible in the prison employment context, prison
administrators do not get a free pass. The Department must
have an objective “basis in fact” for “its belief that gender
discrimination is ‘reasonably necessary’—not merely
reasonable or convenient—to the normal operation of its
business.” Everson, 391 F.3d at 748 (citing W. Air Lines, Inc.
v. Criswell, 472 U.S. 400, 414 (1985)). This means prison
administrators “seeking to justify a BFOQ must show a high
correlation between sex and ability to perform job functions.”
Breiner, 610 F.3d at 1213 (internal quotation marks and
citation omitted). Speculation about gender roles is
insufficient—the evidence must demonstrate that prison
administrators had a “concrete, logical basis for concluding
that gender restrictions are reasonably necessary” and that
alternatives to sex discrimination have been “reasonably
considered and refuted.” Ambat, 757 F.3d at 1028 (internal
quotation marks and citation omitted).

An additional significant factor is at play: deference to
prison officials. “Judgments by prison administrators that are
the product of a reasoned decision-making process, based on
available information and expertise, are entitled to some
deference.” Breiner, 610 F.3d at 1212 n.6 (internal quotation
marks omitted); see also Robino, 145 F.3d at 1110 (holding
that, where Hawaii prison administrators appointed a task
force to review prison policies, their “professional judgment
is entitled to deference”).
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 17

Although we have not offered up a cookbook for a
“reasoned decision-making process,” cases that have invoked
the deference principle point to undertakings that address
systemic issues, consider outside views and data, and weigh
reasonable alternatives. See Robino, 145 F.3d at 1111
(deferring to Hawaii prison administrators who directed a
“specially appointed task force” to study prison problems);
Everson, 391 F.3d at 741–45 (deferring to Michigan prison
administrators where they conducted three studies, one
pursuant to a settlement with the Department of Justice). To
be sure, although studies and empirical data are indicia of a
deliberative approach, we have emphasized that “the
decision-making process supporting a discriminatory policy”
need not “take any particular form.” Ambat, 757 F.3d at
1026. Deference is a threshold legal determination.

The Department’s exhaustive process fits well within the
rubric of “reasoned decision making” and is entitled to
deference. After the Jane Doe prisoner class action was filed
in 2007, the Department did not rush headlong into sex-based
staffing. Instead, it hired experts, consulted with other states,
reviewed relevant caselaw, documented scores of sexual
misconduct allegations and investigated many more, and
sought advice from the Human Rights Commission. Drawing
on its decades of experience, the state did not view sex-based
staffing as a panacea, instead proposing a package of reforms
that included measures such as applicant psychological
testing, sex-awareness training, and security cameras.

Teamsters argues that the Department implemented sex-
based staffing “during a time of Departmental crisis” and in
a “panic” that was little more than a “desperate attempt” to
settle the state court class action. The Union’s
characterization begs the question: If sordid details of sexual
18 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

abuse and constitutional violations do not inspire a “crisis”
and feelings of “panic,” then what does? The state shouldn’t
be demonized for kicking into gear to find a remedy for its
long-running challenges. In any event, our inquiry does not
turn on the subjective state of mind of the Department’s
leadership. The Department undertook a rigorous review of
its staffing policies to address the issues raised in the report
and the class action.

The Department’s thorough, thoughtful approach stands
in stark contrast to the sheriff in Ambat, who rejected out of
hand alternatives to discrimination—such as pre-hiring
screening, surveillance cameras, and training—and declined
to order an internal investigation or hire outside consultants.
See 757 F.3d at 1022, 1026. The sheriff did not consult
deputies directly responsible for prisoner supervision or other
jurisdictions with similar policies, and no internal review
documented the extent of misconduct. Id.

Ambat instructs that “[d]etermining whether a corrections
official is entitled to deference is a fact-intensive and
case-specific inquiry” that is “generally within the discretion
of the district court.” Id. at 1026. The district court found
that the Department’s process merited deference, and we see
no reason to conclude otherwise. Accordingly, we give
“some deference,” Robino, 145 F.3d at 1110, to Washington’s
prison administrators, although we remain mindful of the
antidiscrimination mandate of Title VII.

III. THE PRISON POLICY AND BFOQ REQUIREMENTS

In 2009 the Department determined that designating 110
female-only guard positions at the two prisons would
substantially improve prison security, protect the privacy of
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 19

female inmates, and prevent sexual assaults. Teamsters
challenges approximately sixty of those positions, which fall
into four general categories: medium- and high-security
housing units (18 positions); programs and activities
supervisors (3 positions); work crew supervisors (6
positions); and relief posts to replace female guards who are
on breaks or absent from work (32 positions).4

The Union paints the Department staffing policy as
“broad and overreaching”—a “blunderbuss approach to the
issue.” The record demonstrates the opposite. Instead of a
blanket ban on male prison personnel, the Department crafted
the staffing needs to fit each specific facility and guard post.
It targeted only guard assignments that require direct, day-to-
day interaction with inmates and entail sensitive job
responsibilities such as conducting pat and strip searches and
observing inmates while they shower and use the restroom.

As the Union’s expert acknowledged, “[n]o remedy is
perfect nor perfectly effective.” We couldn’t agree more.
This reality underscores the rationale for deference to prison
administrators and the hazard of nitpicking the state’s
thoughtful response to deep-rooted problems in its women’s
prisons.

4
The Union acknowledges that the remaining 50 positions—such as
guard assignments in minimum-security housing units and those on the
graveyard shift, where repeated instances of sexual misconduct
occurred—are properly designated as female-only.
20 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

A. The Department’s Policy Rationales Are
Reasonably Necessary to the Essence of Prison
Administration

At issue on appeal is whether the state established as a
matter of law that sex-based restrictions are “a bona fide
occupational qualification reasonably necessary” to normal
prison operations. Under the well-worn standard of Federal
Rule of Civil Procedure 56, we affirm the district court’s
grant of summary judgment because there is “no genuine
dispute as to any material fact and the [state] is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Teamsters failed to produce “specific facts showing there is
a genuine issue for trial” to survive summary judgment.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting
Fed. R. Civ. P. 56(e)).

Curiously, Teamsters did not offer specific testimony
from its members, former guards, or others with actual
knowledge of on-the-block operations at the prisons.
Although Teamsters offered up the reports of two experts, in
the end their testimony does not create a material factual
issue. For starters, the reports generally fail to address the
specific posts at issue. Instead, they rehash alternatives to
sex-based staffing that were exhausted and rejected by prison
administrators or serve up proposals without any evidence of
efficacy or practicality. Finally, the Union’s experts opine on
the interpretation of social science research that is not central
to the state policy in any event.

Although the sexual assaults that spawned the Jane Doe
class action permeate this lawsuit, the state did not justify its
BFOQ positions solely as a means to prevent sexual assaults.
Instead, it identified several intertwined reasons for
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 21

designating the female-only positions. In the initial request
to the Human Rights Commission, the Department cited the
need to “enhance the security of the prisons, safety of staff
and offenders, and to protect the privacy and dignity of
female offenders.” The Commission, in turn, concluded that
absent the BFOQ designations, the prison is “unable to ensure
a proper balance between security considerations and privacy
rights of offenders” and endorsed the female job assignments
“for the explicit purpose of ensuring privacy rights of female
offenders.”

Not surprisingly, under our precedent all of these
interrelated objectives go to the heart of prison operations. In
Ambat, we held that, as a matter of law, “protecting female
inmates from sexual misconduct by male deputies,
maintaining jail security, [and] protecting inmate privacy”
were all reasonably necessary to the essence of prison
administration. 757 F.3d at 1027–28. The same holds true
here.

Security, of course, is the paramount concern of prison
administrators. As the Supreme Court has noted: “The
essence of a correctional counselor’s job is to maintain prison
security.” Dothard, 433 U.S. at 335; see also Everson,
391 F.3d at 753 (“Unquestionably, the security of the prisons
relates to the essence of [prison business].”). That maxim is
no less true today. Security concerns are necessarily
intertwined with prison programs and objectives.

Inmate privacy encompasses the inmate’s “interest in not
being viewed unclothed by members of the opposite sex”—an
interest that “survives incarceration” despite prisoners’
diminished privacy expectations. See Robino, 145 F.3d at
1111. In the same vein, inmates have a privacy interest in
22 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

having non-emergency strip and pat searches—a pervasive
fact of prison life—performed by guards of the same sex. See
Jordan, 986 F.2d at 1524; Tharp, 68 F.3d at 226.

Preventing sexual assaults is also a legitimate prison
objective. First and foremost, prison administrators have a
high interest in shielding inmates from abusive and inherently
coercive encounters. Indeed, even allegations of sexual
misconduct can destabilize prison life: they can breed
mistrust and damage morale among officers and prisoners;
drain prison resources; and undercut the effectiveness of male
officers with the looming threat of a career-ending
accusation. See Robino, 145 F.3d at 1111 (discussing damage
to prison morale caused by allegations of male staff sexual
misconduct); Everson, 391 F.3d at 753 (“[A]llegations of
sexual abuse, whether true or not, create a ‘poisoned
atmosphere’ that breeds misconduct on the part of inmates
and guards.”).

Amazingly, one of the Union’s experts offered the
following view:

Female inmates cannot be shielded from the
world in which we live. If they are to
reintegrate into society, they have to be taught
how to deal with abusive staff, male or
female. They have to be taught what
constitutes a healthy interaction and what does
not. They cannot learn those skills if they are
sheltered from contact with males in a
position of authority. ¶ Sexual abuse is
present in all areas of our society: in schools,
(at all levels), business, government, military
and families. Just as females have to be
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 23

taught how to deal with those abuses in the
larger society, female inmates must be taught
as part of the rehabilitation process how to
deal with all abusive staff: males and females,
custody staff and civilian staff.

To state something so obvious we never imagined it
would need to be written: we reject any suggestion that
female prisoners would benefit from being subjected to
abusive prison guards as “part of the rehabilitation process”
so that they may better “reintegrate into society.” See, e.g.,
Prison Rape Elimination Act, 42 U.S.C. § 15601(11)
(“Victims of prison rape suffer severe physical and
psychological effects that hinder their ability to integrate into
the community and maintain stable employment upon their
release from prison.”).

We have little difficulty holding that the state’s reasons
for adopting the BFOQ designations—improving security,
protecting inmate privacy, and preventing sexual
assaults—are each reasonably necessary to the essence of
operating Washington’s women’s prisons. That conclusion
does not end the analysis, however. The state also must
demonstrate that sex is a “legitimate proxy” to achieve one or
more of these goals, meaning that there is a “high correlation
between sex and ability to perform job functions.” Breiner,
610 F.3d at 1213 (quoting Johnson Controls, 499 U.S. at
202). In addition, the state must show that alternatives to the
sex-based classification were “reasonably considered and
refuted.” Ambat, 757 F.3d at 1028.

Before addressing these remaining requirements in the
context of specific positions, we consider Teamsters’
overarching arguments that the staffing policy is based on
24 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

stereotypes and that the state failed to consider
nondiscriminatory alternatives.

Teamsters argues at length that the state policy is based
on an impermissible stereotype that male guards are more
likely to commit sexual misconduct than their female
counterparts. This stereotyping argument misses the mark.
To begin, the Union acknowledged that the policy was
adopted in the face of documented allegations of abuse.5 The
Department also did not rest on assumptions; it provided
objective legal and operational justifications for why only
women can perform particular job functions, like observing
inmates unclothed and conducting non-emergency searches.

We also reject Teamsters’ argument that the Department
could simply have hired new executives or reconfigured
prison layouts. As our discussion of the day-to-day realities
of the positions at issue demonstrates, neither of those
alternatives actually addresses the specific operational
challenges of maintaining prison security, preserving
inmates’ privacy, and stopping abuse.

5
Because the 2009 policy stemmed from a documented history of sexual
misconduct in Washington prisons, this case is distinguishable from
Breiner. There, Nevada prison officials designated as female-only three
upper-management positions based on the assumption that men were
“incapable of adequately supervising front line staff in female prisons.”
610 F.3d at 1213. The record disclosed no evidence that anyone in
upper-management had ever abused an inmate. Id. at 1214. Here, by
contrast, the sex-based job assignments are all “front line” positions that
require direct, day-to-day interaction with female inmates. Washington
has substantiated dozens of instances of sexual abuse implicating every
job category at issue in this lawsuit.
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 25

B. Sex is an Objective, Verifiable Job Qualification
for the Designated Positions

We conclude that sex is an objective, verifiable job
qualification for the posts designated as female-only by the
Department and that the Department appropriately considered
reasonable alternatives.

1. Housing Units

The staffing restriction with the “largest impact,”
according to the Union, involves 18 positions at the medium-
and high-security housing units at Washington Corrections
Center.6 The housing units have two guards on duty on each
shift. Unlike other states, the Department did not ban male
guards entirely; rather, the staffing policy requires at least one
female guard per shift, an approach recommended by one of
the state’s consultants.

In the housing units, correctional officers “must conduct
pat and strip searches of female offenders entering and
leaving the facility” as well as frequent random and
suspicion-based searches within the housing units. In the
segregation and mental illness units, inmates are strip
searched every time they enter or leave their cells. Except in
emergency circumstances, male guards cannot legally
perform any of these searches. Jordan, 986 F.2d at 1523; see
also Wash. Rev. Code § 9.94A.631(2).

6
The Union concedes that positions in minimum-security housing units
are properly designated female-only. Because Mission Creek is a
minimum-security facility, the housing-unit positions at that prison are not
at issue here.
26 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

Beyond searches, officers in the housing units also “may
encounter female offenders in varying states of undress while
showering, toileting, and dressing.” Guards must collect
urine samples from inmates, and a failure to “observ[e] the
offenders during the entire process of urinalysis collection
significantly impacts the reliability of the test results . . .”
According to the state, “[m]ale staff cannot observe female
offenders when they are engaged in these activities.”

Given these operational needs, there is no reasonable
substitute for having female guards inside housings units,
according to the Department. Notably, temporarily removing
a female guard from another part of the prison to cover in a
housing unit “creates a gap for dealing with privacy issues at
the post vacated.” At best, that solution fixes one problem
but creates another.

The evidence Teamsters puts forward to counter the
Department’s justifications is entirely inapposite. One of its
experts points out that sexual assault is not a severe problem
in medium- and high-security housing because “as the level
of security increases, the opportunity for sexual assault
decreases.” This may be true, but it fails to acknowledge that
the staffing decisions were designed to protect inmate
privacy, which is “essential to the operation of a corrections
facility and has been recognized as justifying facially
discriminatory policies in other contexts.” Ambat, 757 F.3d
at 1028. The Union’s other expert quarrels with citations to
social science regarding female inmates’ privacy needs and
matters relating to sexual relationships between inmates and
guards. This testimony again fails to raise any genuine
dispute of material fact as to the Department’s reasoned
determination that the realities of operating Washington’s
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 27

women’s prisons necessitate designating these specific
positions as female-only.

2. Programs and Activities

Programs and activities officers directly supervise inmate
activities such as educational and religious classes, gym,
crafts, and visitation hours. During these programs and
activities, inmates are searched at random and if suspected of
hiding contraband. Guards must collect urine samples from
inmates and at times relieve housing unit officers, which
requires “room checks” where they may “encounter female
offenders in varying states of undress. . . .” These guards also
supervise visitation hours, after which 50% of inmates are pat
searched and 50% are strip searched. To fulfill these job
functions, the state designated three programs and activities
positions as female-only.

The Union’s proposed alternative to designating these
positions as female-only is a return to the system employed
for the last two decades: dispatching female officers as
rovers—or “response and movement” guards, in prison
lingo—who could be paged when needed for searches.7 The
Union offers no data, expert testimony, or other evidence to
support the efficacy of this approach. Instead, undisputed
evidence established that the rover system was rife with
problems, to say the least. During this era, prison
administrators “shuttle[d] women staff from location to
location throughout the prisons to perform essential security

7
Union expert Gladwin says the female-only designation of programs
and activities posts is “arbitrary,” because the programs and activities
officer who supervises the bike program can be a male guard. That
officer, however, is not required to perform searches.
28 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

procedures, leaving other areas of the prison without
appropriate staffing.” Wait times for searches lasted an hour
or more. With female guards stretched thin, inmates went
unsupervised showering, using the restroom, or
dressing—raising security and safety risks. Superintendent
Eldon Vail testified that, before the BFOQ positions were
implemented, the prison functioned “in the broadest sense”
but the shortage of female guards restricted the prison’s
ability to deploy unannounced, random pat searches, an
important tool in preventing the flow of contraband.

In light of this checkered history, the Union’s conclusory
assertion that the Department successfully “managed [privacy
and search] issues for at least two decades” rings hollow.
FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171
(9th Cir. 1997) (“[C]onclusory, self-serving statements in
appellate briefs . . . are insufficient to create a genuine issue
of material fact.”). We will not displace prison
administrators’ experience and expertise in favor of an
alternative that boils down to the “same old, same old.” Cf.
Torres, 859 F.2d at 1529 (“[P]rison administrators always
have been expected to innovate and experiment.” (citing
Turner v. Safley, 482 U.S. 78, 107 (1987) (prison
administrators must be allowed “to adopt innovative solutions
to the intractable problems of prison administration”)).

3. Work Crews

Work crew officers escort groups of ten prisoners to off-
site work locations and supervise their workdays. Searches
are again part and parcel of the job—comprising 70% of day-
to-day responsibilities. Strip searches are required each time
an inmate leaves and reenters the prison grounds. Before the
2009 staffing policy, female officers had to be “pulled from
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 29

somewhere else in the facility” to conduct these searches,
which can “creat[e] [] a staff shortage in another area of the
facility” and pose “a potential security risk,” according to the
Human Rights Commission. During the workday, officers
also must accompany female inmates as they use the
restroom. The Department concluded that, because of these
job responsibilities, it needed female officers alongside work
crews. The Department therefore designated six positions as
female-only.

Nonetheless, with respect to work crews, the Union
argues that the Department should merely station female
guards at prison entry and exit points. If the need for a search
arises “while work is in progress, this would constitute an
‘emergent’ search which is not prohibited for a male officer
as a matter of law, policy or contract.” The Union produced
no evidence or legal support for its emergency-search
proposal. Even if the Department could disingenuously label
every work-site search as an emergency, the state’s interest is
broader than merely avoiding illegal searches. Having male
officers conduct pat searches under any non-emergency
circumstances is undesirable and harmful to prisoner privacy
and security.

Staging female officers at entry and exit points also
ignores the state’s interest in preserving security during work
assignments. The record showed that at least two inmates
escaped from public bathrooms while on work crews, when
they were not watched by male guards and no female guards
were on hand. The Union does not explain, much less
provide evidence for, how its alternative proposal would
address concerns about on-the-job observation.
30 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR.

4. Relief Posts

Officers in the 32 relief positions substitute for female
guards in female-only positions when they have a regular day
off, are on vacation, or are out sick. The relief officers
perform the job responsibilities described above in housing
units and elsewhere. As the Human Rights Commission put
it, the relief positions “alleviate understaffing of female
officers, because a BFOQ position needs to be relieved by a
BFOQ position.” In other words, if only male officers are
available to fill in for BFOQ positions, it undermines the
documented need of making those positions female-only in
the first place.

According to the Union, 32 relief positions is too many,
so the issue “must be reserved for trial because the Court
cannot assess whether the relief sought was excessive without
conducting a careful analysis of all such positions.” To
survive summary judgment, however, the Union “may not
merely state that it will discredit the moving party’s evidence
at trial and proceed in the hope that something can be
developed at trial in the way of evidence to support its claim.”
T.W. Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987). Argument without evidence is
hollow rhetoric that cannot defeat summary judgment.

CONCLUSION

We affirm the district court’s grant of summary judgment
for the state. The Washington Department’s creation of a
narrow category of female-only job assignments is a “bona
 TEAMSTERS LOCAL UNION NO. 117 V. WASH. DEP’T OF CORR. 31

fide occupational qualification reasonably necessary to the
normal operation” of the women’s prisons.8

AFFIRMED.

8
In light of our holding that the positions are lawful BFOQs, we need
not decide whether the district court correctly granted summary judgment
on the alternative ground that the Union has not shown that any of its
members suffered cognizable injury under Title VII.