Policy Excluding Female Employees from Supervising Prison Dry Cells Found Discriminatory

The Federal Correctional Institute in Memphis, Tennessee, (“FCI-Memphis”) is one of 122 prisons run by the Federal Bureau of Prisons (BOP). The inmates at FCI-Memphis are all males, but the institution has 49 female employees. Due to a chronic shortage of correctional officers, FCI-Memphis regularly “augments” (i.e. requires) females to take on custodial positions. That is, with the exception of two posts: Dry Cell (where inmates suspected of ingesting drugs are isolated in a cell without a bathroom, so an officer can observe and retrieve any excreted contraband) and Suicide Watch (where inmates thought to be at risk of harming themselves are placed).

Patricia Dyson had worked at the BOP for 14 years, the last 8 of which at FCI-Memphis as a General Maintenance Supervisor, leading a group of inmates doing minor repair work at the facility. Ms. Dyson had been augmented for custodial work and selected Dry Cell because she knew the inmate who had worked for her before. However, prison officials rejected her choice based upon an institutional policy providing, “No opposite gender staff may be the observer of an unclothed inmate who is on dry cell, suicide watch, medical observation or other similar status.” As her supervisor told her, “It’s the Memphis way.”

FCI-Memphis’ policy made no sense to Ms. Dyson. The Dry Cell and Suicide Watch inmates she would be observing were clothed, and should they have to undress, she could “tag out” for a male custodial officer to temporarily replace her. This practice of tagging out is what a number of other BOP institutions did, including the facility she worked at prior to joining FCI-Memphis. At the arbitration, Ms. Dyson testified that by working one-on-one with an inmate, “[she] can figure out a lot of things that take place on the compound. [She] can find out a lot about the inmate himself…. It’s what [she] went to school for.” (Ms. Dyson took college courses while working at the BOP and obtained her B.A. degree in Behavioral Science.)

Not only was FCI-Memphis’ policy contrary to the best interests of the facility, it undermined the dignity and respect of its female employees. Ms. Dyson further testified,

… I felt violated. I was hurt. I do a lot for this facility. And I just felt like they were kind of hitting me in the gut because I was a female, as if I can’t do the job…. I’ve done male positions all my life…. I’m used to working with men…. Served in the military with all men as a welder, went to the Department of Corrections, in another male facility, predominantly men ….. I’m back over here again in a predominantly male facility, and I work in a department where … I’m the only female foreman. I’m used to working with men. I know how to carry myself around men. I know what to do in the event. I’ve been in the bureau for 14 years without incident with inmates., so it’s not a job I can’t do. So I felt discriminated.

The American Federation of Government Employees – Local 3731, brought a grievance on behalf of Ms. Dyson and other FCI-Memphis female employees challenging the institution’s policy as violating Title VII of the Civil Rights Act, the federal statute prohibiting discrimination against employees and job applicants in protected classes, which include gender. The grievance went to arbitration, where I represented the Union.

FCI-Memphis defended its discriminatory policy by claiming that a bona fide occupational qualification (“bfoq”) of supervising Dry Cell and Suicide Watch was that the corrections officer be the same sex as the inmate. Otherwise, a female officer might see a male inmate naked, constituting an invasion of his privacy. The arbitrator rejected FCI-Memphis’ bfoq defense, finding that the inmates in the two posts were, for the most part, clothed and that there were reasonable alternatives to restricting female employees from the posts. In particular, having a female employee call for a male corrections officer to “tag out” when an inmate needed to perform bodily functions.

FCI-Memphis appealed the arbitration decision to the Federal Labor Relations Authority, and, after 18 months, the FLRA upheld the decision in all respects. But the proceedings are not yet finished. Unless the parties can agree on the issues of damages, the arbitrator will hold a second hearing to determine how much money female employees suffered in lost wages as well emotional distress damages. In the meantime, FCI-Memphis has rescinded its discriminatory policy, and female corrections officer are supervising both Dry Cell and Suicide Watch.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney John A. Beranbaum who counsels clients on employment law, litigation, arbitration, negotiation, and trial advocacy. Mr. Beranbaum is admitted to practice law in New York and New Jersey and before the U.S. Supreme Court, U.S. Court of Appeals from the Second and Third Circuits, U.S. District Court for Southern and Eastern Districts of New York, District of New Jersey, Eastern District of Pennsylvania and the Northern District of Florida.