01972502
08-18-2000
Regina Pratt, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Regina Pratt v. Department of Justice
01972502
August 18, 2000
Regina Pratt, )
Complainant, )
)
v. ) Appeal No. 01972502
) Agency No. I-94-6383
Janet Reno, ) Hearing No. 350-95-8134X
Attorney General, )
Department of Justice, )
(Immigration and Naturalization )
Service), )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On January 30, 1997, Regina Pratt, (hereinafter referred to as
complainant) timely appealed the agency's final decision, dated January
3, 1997, that it had not discriminated against her in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. Complainant alleged that the agency discriminated against her
on the basis of sex (female) as a result of the Supervisory Detention
Enforcement Officer's decision not to permit two female detention
officers to accompany one another on a conveyance detail involving male
detainees. The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
BACKGROUND
On January 4, 1994, complainant filed the instant complaint. The agency
accepted the complaint and conducted an investigation. At the conclusion
of the investigation, complainant requested a hearing before an EEOC
administrative judge (AJ). On May 26, 1995, complainant requested a
decision without a hearing. The agency did not object. Thereafter,
the AJ issued Findings and Conclusions Without a Hearing, finding that:
(1) complainant had established that the agency's same sex policies
relating to escort details are discrimination based on sex; (2) that the
agency had failed to establish that same sex is a Bona Fide Occupational
Qualification (BFOQ) for escort details; and (3) that complainant had
established that the local policy and practice of not permitting female
DEOs (Detention Enforcement Officers) to accompany one another on escort
details involving male detainees was discrimination based on sex.
On January 3, 1997, the agency issued a final agency decision (FAD)
finding that the AJ erred in deciding that the agency's escort
policy was facially discriminatory and not justified under BFOQ
standards. (Conclusions Nos. 1 and 2). However, the agency did find
that in those instances involving escorts of "mixed" groups of detainees
(those comprised of male and female detainees), the agency prohibited
teams of female DEOs from conducting the escort, while they did not do
the same for teams of male DEOs, and for that reason, made a limited
finding of discrimination. (Conclusion No. 3).
At the time this matter arose, complainant was employed by the agency as
a Detention Enforcement Officer (DEO), GS-1802-7 with the Immigration and
Naturalization Service (INS), Service Processing Center (SPC) in Florence,
Arizona (hereinafter referred to as Florence facility). The Florence
facility has an all male population of approximately 300 detainees,
a high percentage of whom have committed crimes while illegally in the
United States. At the time relevant to this complaint, the facility
had 22 male and 4 female DEOs.
DEOs at the Florence facility rotate monthly between eight
assignments which include court, medical, surveillance, control, and
escort/conveyance. Escort duty involves the process of transferring or
escorting deportable aliens between INS and non-INS facilities, to and
from airports, railroad and bus depots, hospitals, courts, and residences.
Most of the details involve escorting male detainees due to the high
population of male detainees at the facility. However, female aliens
escorted by the Florence facility's DEOs are generally those who are
being returned to Mexico. These groups are usually comprised of both
male and female detainees ("mixed group").
In her decision, the AJ quoted the following excerpt from Chapter XXII
of the Detention Officer's Handbook:
An alien should never be escorted by an officer of the opposite sex.
If no officer of the same sex is available, a Service employee of the same
sex as the alien should accompany the officer on such an escort detail.
However, if the alien is traveling in the company of spouse or other
close relatives, the services of any detention officer may be utilized.
ROI at ex. 21b.
She also quoted the following Alien Transportation Policy, which is
based on the above, and approved by the Officer in Charge (OIC) at the
Florence facility:
...When escorting officers are required for female aliens and children,
at least one female officer shall be assigned unless the female alien or
children are traveling with the husband or father and in the opinion of
the SDO, female officers are not necessary. Detention officers are not
to search detainees of the opposite sex, except in extreme necessity and
when no officer of the same sex is available. It is best to procure a
witness if this should be necessary. A DEO may be used to escort
a detainee of the opposite sex only in emergencies when an officer
of that sex is not available. In those cases a second officer will
accompany as a witness. ROI at ex. 21a.
The record reveals that in formulating the policy, the OIC testified
that he considered:
not only the sensitivity of the mission, but also the sensitivity of
the detainees, who are predominantly male Hispanics...[w]e try to use
a 'common sense' approach in assigning the DEOs to these details.
We consider the number of detainees, the sex of the detainees, the
security involved, traditional gender relationships inherent in the
cultures of other nationalities, and the safety of the DEOs. ROI at
ex. 7.
The Acting Chief DEO testified in his affidavit as to the practice of
assigning DEOs to escort details. Specifically, he stated that the
next DEO on the list is asked if he or she would want the detail; if
it is outside of the jurisdiction, it is generally considered desirable
by the DEOs. He added that, "while we do not have a definitive policy
restricting two female escorts, because of a variety of considerations
we have not assigned two female DEOs on escort details." ROI at ex. 8.
As rationales for this policy, the Acting Chief cited the required "pat
down," and the need to escort detainees to the restroom, if required.
He added that DEOs are not authorized to conduct "pat down" searches of
members of the opposite sex. With respect to weekly details involving
returning voluntary returnees to Mexico, he stated that female DEOs
assigned to these assignments, which include both male and female aliens,
must be accompanied by a male DEO.
Complainant testified specifically to an incident which occurred on
November 22, 1993, wherein complainant and another female DEO were
scheduled for conveyance duty. However, complainant's supervisor
reassigned complainant to processing duty and was replaced by a male DEO.
The supervisor testified that the action was consistent with local policy
and indicated it was due to security and safety concerns.
The AJ found that it was the practice at the Florence facility to assign
at least one male on DEO escorts. If only women were assigned to the
conveyance post, a male would be pulled from another posted assignment
and would replace one of the female DEOs. However, the AJ also found
that two males were allowed to escort female aliens. The Supervisory
DEO indicated that this was due to the fact that the female aliens who
were escorted by DEOs at the Florence facility had been searched prior to
arriving at the Florence Facility, and thus did not have to be searched
again before returning to Mexico. Finally, the AJ found that subsequent
to the filing of her complaint, two female DEOs were permitted to escort
a male detainee to the local hospital.
In her analysis, the AJ found that on its face, the agency policy
as articulated in the Detention Officer Handbook and in the Alien
Transportation Policy, was discrimination in employment based on sex in
violation of Title VII.<1> The AJ then explained that classifications
based on sex are only permitted when sex is a bona fide occupational
qualification (BFOQ) reasonably necessary to the normal operation of the
particular enterprise or business. Here, the agency's stated reasons for
the policy were the female DEO's safety, detainee's dignity, security
concerns, and cultural sensitivity. The AJ found that the agency
had failed to demonstrate any meaningful difference between male and
female DEOs in their ability to safely perform their duties and thus,
the agency's safety and security concerns were not borne out on the
evidence, and were based upon sexual stereotypes. The AJ also dismissed
the agency's contention that the policy was related to the cultural
sensitivity of the detainees, reasoning that such a justification was
likened to "customer preference," which has been rejected as a BFOQ.
See 29 C.F.R. �1604.2(a).
Assuming the agency had some privacy concerns in mind when it implemented
the policy, the AJ found that the agency failed to make any showing that
the use of DEOs of the opposite sex would undermine the escort detail.
Furthermore, the agency failed to establish that it could not make the
job assignments in a way which would allow minimal clash between the
privacy interests of the detainees, and the nondiscrimination principles
of Title VII.
In sum, the AJ found that complainant established that: the agency's same
sex policies relating to escort details were discrimination based on sex;
the agency failed to establish that same sex is a BFOQ for escort details;
and that the local policy of not permitting female DEOs to accompany one
another on details involving male detainees was discrimination based
on sex. Based upon these findings, the AJ ordered appropriate relief
to complainant.
As stated above, the agency issued a FAD making a limited finding of
discrimination only in those cases involving "mixed" groups of detainees.
Specifically, it acknowledged that when two female DEOs were next on the
escort assignment list, the supervisors would invariably replace one
of the female DEOs with a male DEO. In essence, the agency found that
the Florence facility prohibited teams of women DEOs from conducting
escorts comprised of mixed groups, while not prohibiting the same for
teams of male DEOs, in violation of its policy. The agency itself
was puzzled as to why female DEO teams were frowned upon with respect
to mixed groups of detainees when the same concerns (privacy, security,
cultural preferences) presumably existed for male DEO teams which escorted
mixed groups, but were instead tolerated by agency officials.
The FAD rejected the AJ's conclusions with respect to the finding
that the agency policy was facially discriminatory and that it had not
established a BFOQ for the policy. Finding that the policy was instead
facially neutral, the agency also discussed whether its policy had a
disparate impact on female DEOs at the Florence facility, and if so,
whether it had established that the policy was job related and consistent
with business necessity. In her statement on appeal, complainant stated
that she was appealing that portion of the FAD which disagreed with the
AJ's decision. The agency did not submit any statement in response to
complainant's appeal.
ANALYSIS AND FINDINGS
The agency's policy in this case states in pertinent part, "[a]n alien
should never be escorted by an officer of the opposite sex." ROI at
ex. 21b. In its FAD, the agency objected to the AJ's classification of
this policy as facially discriminatory. We disagree. In essence, the
agency's policy prohibits female DEOs from escorting male detainees, and
male DEOs from escorting female detainees. In light of the agency's use
of gender as a specific factor in designating DEOs to their assignments,
we find that it is facially discriminatory. See Healey v. Southwood
Psychiatric Hospital, 78 F.3d 128 (3rd Cir. 1996). As we have found
the agency's policy is facially discriminatory, we will not address the
agency's argument that as facially neutral, it did not have a disparate
impact on female DEOs. Analysis under disparate impact is not appropriate
where a complainant claims injury on a facially discriminatory policy.
See Reidt v. County of Tempealeau, 975 F.2d 1336, 1340 (7th Cir. 1992).
Section 703(e) of Title VII only permits classifications based on sex
"where ... sex ... is a bona fide occupational qualification reasonably
necessary to the normal operation of that particular business or
enterprise." 42 U.S.C. � 2000e-2(e)(1). It is universally recognized
that this exception to Title VII was "meant to be an extremely narrow
exception to the general prohibition of discrimination...." Dothard
v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 55 L.Ed.2d 786
(1977); see also Pime v. Loyola Univ., 803 F.2d 351, 356 (7th Cir.1986)
(Posner, J., concurring). As the Supreme Court recognized in Dothard,
this narrow exception "has been variously formulated." 433 U.S. at 333,
97 S.Ct. at 2729. " '[D]iscrimination based on sex is valid only when
the essence of the business operation would be undermined by not hiring
members of one sex exclusively.' " Id. (quoting Diaz v. Pan Am. World
Airways, 442 F.2d 385, 388 (5th Cir.), cert. denied, 404 U.S. 950, 92
S.Ct. 275, 30 L.Ed.2d 267 (1971). In addition, the employers bear the
burden of proving that because of the nature of the operation of their
business they could not rearrange job responsibilities in a way that
would eliminate the clash between the privacy interests of the detainees
and the employment opportunities of the DEOs. See Hardin v. Stynchcomb,
691 F.2d 1364 (11th Cir. 1982); Gunther v. Iowa State Men's Reformatory,
612 F. 2d 1079 (8th Cir.), cert. denied, 446 U.S. 966 (1980).
Keeping in mind the agency's concerns, specifically, the safety and
security of the female DEOs, detainee's dignity<2>, and cultural
sensitivity, we now turn to whether the agency satisfied its burden.
The �essence� of the Florence Processing Center is to detain, process
and assist in deporting aliens. According to the Officer in Charge,
approximately 90% of the detainees committed crimes since the time they
illegally entered the United States. Complainant's position description
describes the primary tasks of a DEO as those that involve the �location,
apprehension/arrest, transportation, safeguarding, overseeing/supervising,
and processing of aliens being detained and/or deported for violation
of immigration laws.� ROI at ex. 14.
With respect to the agency's concerns regarding the safety of the female
DEOs, we find, as did the AJ, a lack of evidence as to why female DEOs
were not as capable of providing for their own safety as the men were.<3>
We also note our agreement with the AJ's determination that the cultural
preferences of the male detainees is akin to "customer preference,"
which is not a BFOQ. See 29 C.F.R. �1604.2(a). As such, we find the
agency failed to satisfy its burden of establishing that an all-female
conveyance detail would undermine the business of the Florence facility
such that sex based assignment schedule was justified pursuant to a BFOQ
based on safety and/or �cultural sensitivity� of the alien.
With respect to the agency's concerns over the privacy implications of
allowing DEOs to escort detainees of the opposite sex, we have previously
assumed, without deciding, that sex was not a BFOQ with respect to
prisoner's privacy concerns. See Gonzales-Withers v. Department
of Justice, EEOC Request No. 05910550 at n. 6 (September 19, 1991).
Furthermore, courts have held that prisons can preserve the privacy
rights of their inmates without sacrificing the right of correctional
officers to equal employment opportunities, thus, the BFOQ defense has
been rejected. See, e.g., Hardin, 691 F.2d 1364; Forts v. Ward, 621 F.2d
1210 (2d Cir. 1980); Gunther, 612 F. 2d 1079. Where prisons have claimed
sex was a BFOQ because the duties of correctional officers included
observing inmates while the inmates were using the showers and toilets,
courts have ordinarily rejected this justification as inadequate and found
that the prisons had not met their burden of showing that alternatives
with a less discriminatory impact were not available. Hardin, 691 F.2d
at 1373; Gunther, 612 F.2d at 1087; Edwards v. Department of Corrections,
615 F. Supp. 804 (M.D. Ala. 1985). A prison could, for example, reassign
duties involving strip searches and shower/toilet surveillance so that,
except in emergencies, these duties would be performed by guards of the
same sex as the inmates. Id.
We distinguish this case from cases where courts have found that sex
is a BFOQ because the essence of the business or core job functions of
a business implicate privacy interests, and thus, a single sex BFOQ is
necessary to protect those interests. See e.g. Healey, 78 F.3d 128, 133
(3rd Cir. 1996)(BFOQ found where child care specialists at psychiatric
hospital included accompanying children to bathroom and occasionally
bathing them); Jennings v. New York State Office of Mental Health,
786 F.Supp. 376, 380 (S.D.N.Y.)(privacy-based BFOQ exists for treatment
assistant position at a state hospital for the mentally ill, a position
involving intimate personal care such as bathing and toiletting), aff'd,
977 F.2d 731 (2nd Cir. 1992)(per curiam); Backus v. Baptist Med. Ctr.,
510 F.Supp. 1191, 1193 (E.D. Ark. 1981)(BFOQ found for labor and delivery
room nurses who constantly viewed exposed genitalia during delivery).
Some courts have found that privacy concerns may be the basis for
excluding male corrections officers from female inmate living quarters.
See Torres v. Wisconsin Department of Health & Human Services, 859 F.2d
1523, 1531 (7th Cir. 1986). In that case, however, the court held that
the essence of the business, rehabilitation, could justify the employment
of only female correction officers within living quarters, since a high
percentage of inmates had been physically and sexually abused by males.
The court remanded the case to the district court to determine whether a
female only staffing policy was necessary to further the rehabilitative
mission of the business.
Such is not the case in the instant appeal. Here, the primary essence of
the function at issue is to transport aliens back to their native country
in a safe and dignified, yet firm, manner. See, Detention Officer
Handbook, ROI at ex. 21. Although the record reveals that concerns
regarding bathroom usage and �pat downs� led to the same sex policy,
we find the agency failed to carry its burden of establishing there are
no other less discriminatory alternatives available to avoid detainees'
privacy concerns during escort assignments, and thus the agency's BFOQ
defense fails. The agency's own concessions with respect to the Florence
facility's failure to abide by its own same sex policy is evidence that
such accommodations are available to the agency.
For example, in making its limited finding of discrimination, the agency's
final decision questioned why the facility allowed a mixed group of
detainees with all male DEOs, whereas all female DEOs were not permitted.
Specifically, the FAD quoted testimony of the supervisor who explained
that allowing all male DEOs for a mixed group of detainees did not create
problems with respect to the need for a "pat down" because the female
returnees have "already been searched [at the start of the trip] and do
not have to be re-searched." ROI at ex. 10. The FAD continued by saying,
"[b]ut, presumably, the same practice could be followed with respect to
the men." FAD at p. 16. The agency's concessions with respect to its
ability to conduct "pat down" searches of detainees prior to boarding the
bus before returning to Mexico is indicative of the fact that there are
reasonable alternatives to the same sex policy for escorts. According to
the agency, two female escorts could escort an all male or mixed group
of detainees if "pat downs" were conducted before the assignment began.
The record contains insufficient evidence as to whether, in other
escort detail assignments, such a practice could not be followed.
Curiously, complainant testified that she has been trained to conduct
body searches on males, and males were likewise taught to conduct body
searches on females. Furthermore, complainant alluded to the fact that
the prohibition against same sex "pat down" searches is not common to
all Service Processing Centers.<4>
The agency also admits that when escorting a male detainee to the
restroom, a female DEO is, "as capable of sitting outside of the
restroom as a male" DEO presumably does when it escorts a mixed groups
of detainees. FAD at p. 16. Both the OIC and the Acting Chief testified
as to their concerns regarding restroom use of detainees while on longer
details involving transportation by airplane. They explained it may be
preferable for the detainee to use the restroom at the airport before
boarding the plane, and thus the escort would need to accompany the
detainee into the restroom. However, complainant testified that she has
escorted a male detainee to the restroom on planes and waited outside
before. Furthermore, as complainant points out, the policy provides
for such. We therefore find, as did the AJ, that the agency's disregard
for its own same sex policy undermines its BFOQ defense, and therefore
the policy, as facially discriminatory, must fail.
CONCLUSION
Accordingly, after a thorough review of the record, it is the decision
of the Commission to REVERSE the FAD insofar as it found that complainant
failed to establish that the agency's policy was facially discriminatory
and not justified under BFOQ standards. The FAD is AFFIRMED with respect
to the finding that complainant was discriminated against on the basis of
sex due to the agency's local policy and practice of not permitting female
DEOs to accompany one another on escort details involving male detainees.
Accordingly, the agency is directed to comply with the ORDER below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
The agency shall immediately review its policies and procedures relating
to escort details and revise them to protect the rights of agency
employees to be free from unlawful discrimination based upon sex.
The agency shall take all appropriate actions to insure that neither
complainant nor any other person is retaliated against in any way for
filing this charge, participating in this proceeding, or opposing unlawful
employment practices.
Within thirty (30) calender days from the date this decision becomes
final and for a period of sixty (60) days from the date this decision
becomes final, the agency shall post at the Immigration and Naturalization
Service, Service Processing Center, Florence, Arizona, facility, a notice
pursuant to 29 C.F.R. �1614.501(a), and in accordance with the paragraph
below, informing employees that the notice is being posted as part of the
remedy in a Federal sector case, advising employees of their rights to
be free from unlawful discrimination and retaliation under Title VII and
assuring them that sex discrimination and/or retaliation will not recur.
The agency shall immediately take corrective measures to prevent the
recurrence of such discriminatory actions by and from all relevant
agency staff. Such corrective measure shall include mandatory training
for all relevant personnel covering: the rights of employees to be free
from discrimination and retaliation under Title VII and similar Federal
statutes; the obligations of management and personnel staff to ensure
that discrimination in all its forms and retaliation do not occur;
and the statutory and disciplinary relief available against those who
discriminate.
The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Phoenix District Office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 64 Fed. Reg. 37,644, 37,657 (1999) (to be
codified at 29 C.F.R. � 1614.109), and the agency shall issue a final
action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be
codified at 29 C.F.R. � 1614.110) within forty (40) days of receipt of
the Administrative Judge's decision. The agency shall submit copies of
the Administrative Judge's decision and the final agency action to the
Compliance Officer at the address set forth below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation that the
corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Service Processing Center, Florence,
Arizona, Immigration and Naturalization Service, Department of Justice
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall be
posted by the agency within thirty (30) calendar days of the date this
decision becomes final, and shall remain posted for sixty (60) days, in
conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN
THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
August 18, 2000 ____________________________________
Date Carlton M. Hadden, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Service Processing Center, Florence, Arizona, Immigration and
Naturalization Service, U.S. Department of Justice, (hereinafter referred
to as �facility�) supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The facility has been found to have discriminated on the basis of sex,
when it implemented a policy prohibiting DEOs from escorting detainees
of the opposite sex, and refused to allow two female detention officers
to accompany one another on conveyance details with male detainees.
The facility was ordered to review and revise its procedures relating to
escort details in order to protect the rights of agency employees to be
free from unlawful sex discrimination; to ensure that the complainant
and other employees are not retaliated against for filing this charge;
to post this notice for a period of sixty (60) days, and to review
the matter giving rise to this complaint. The facility was ordered to
provide training to the responsible officials on the current state of
the law on employment discrimination. The agency was also ordered to
consider the complainant's claim for compensatory damages.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
1In a footnote, the AJ found that even if the policy was considered
facially neutral, its enforcement would still have a disparate impact on
the females inasmuch as the facility is exclusively male. Furthermore,
she found that the agency had failed to establish that the policy was
job related and consistent with business necessity.
2We assume, as did the AJ, that the agency's concerns regarding
�detainee's dignity� was in reference to the detainee's privacy.
3We note that this case can be distinguished from Dothard, where the
Supreme Court found that sex was a BFOQ for the position of a correctional
officer. The facility in Dothard was a maximum security penitentiary
with a large number of sex offenders, and was a �peculiarly inhospitable
[environment] for human beings of whatever sex.� Dothard, 433 U.S. at
334. Here, there is no evidence that the factual circumstances which
existed at the Florence facility were at all comparable, and as such,
do not present the same justification for the BFOQ.
4Complainant testified that the strip search is the only search a DEO
cannot conduct on a member of the opposite sex, and we find she has not
argued that this restriction constitutes prohibited discrimination.
Therefore, our decision makes no finding as to whether sex would be BFOQ
in order to conduct a strip search.