AELE LAW LIBRARY OF CASE SUMMARIES:
Corrections Law
for Jails, Prisons and Detention Facilities


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Sexual Discrimination

      In a lawsuit claiming a violation of the Fourth Amendment because of strip searches of female detainees in D.C. facilities while awaiting presentment hearings in court, and claiming a violation of equal protection because male detainees were allegedly not similarly strip searched, the District of Columbia could not be held liable because the former Superior Court Marshal was not a D.C. official but an appointed federal official and was not a policymaker for the district. The Marshal was entitled to qualified immunity as the Fourth Amendment right he was accused of violating was not clearly established at the time. As to the equal protection claim, there was no evidence that he purposefully directed that male and female detainees should be searched differently. Johnson v. Government of the District of Columbia, #11-5115, 2013 U.S. App. Lexis 23060 (D.C. Cir.).
    Female prison inmates did not show sex discrimination based on the different programs and facilities provided for female and male prisoners. Rather than gender discrimination, the defendants' actions were based on a need to provide adequate sex segregated housing for female prisoners. Vocational education programs offered in prison were not covered by Title IX of the Civil Rights Act. Differences in male and female programs offered were a result of the location of the facilities rather than sex discrimination. Roubideaux v. North Dakota Dep't of Corr. and Rehabilitation, #07-3780 2009 U.S. App. Lexis 14417 (8th Cir.).
     Programs that provide services to inmate mothers in California did not engage in unlawful sex discrimination under state law by failing to provide the same services and programs to male prisoners who are parents. One of the programs is the Pregnant and Parenting Women’s Alternative Sentencing Program Act, that funds community based facilities for programs designed to reduce drug use and recidivism, and allows at least one eligible child to reside with the mother at the facility if the mother has a history of substance abuse, the child is under six, and the sentence is less than three years. The second program "provides for a community treatment program for women inmates sentenced to state prison who have one or more children under the age of six. An incarcerated mother is eligible for the program if she has a probable release or parole date with a maximum period of confinement not exceeding six years; she was the primary caretaker of the infant prior to incarceration; she has not been found to be an unfit parent; and she does not pose an unreasonable risk to the public due to the nature of her crime, the risk of absconding, or probable adverse conduct." Male prisoners who are parents, the court found, were not shown to be similarly situated to inmate mothers. "Most female inmates were convicted of drug or property crimes, often victims of abuse, and more likely to be single parents. [...] There were only a small percentage of male primary caretakers." The court noted that,: "Government data showed these women prisoners were likely to have been the primary or single caretaker of their young children, who were likely to be displaced to other relatives or foster care. By contrast, children of incarcerated men were likely to continue living with their mothers." Woods v. Shewry, No. C056072, 2008 Cal. App. Lexis 1588; 167 Cal. App. 4th 658; 84 Cal. Rptr. 3d 332 (3rd Dist. Cal. App.).
     Female juvenile adjudicated delinquent did not show that her federal constitutional or statutory rights were violated by the fact that a community corrections facility near her home did not accept females, resulting in her having to serve 11 months in a juvenile correctional facility and a drug rehabilitation center that were further away. Her constitutional rights were not violated because she was provided with opportunities comparable to those provided for male inmates. The decision made by her family members not to drive to the facility where she was incarcerated for attendance at family therapy sessions did not alter the fact that family therapy was offered. Additionally for purposes of federal civil rights statutes prohibiting sex discrimination in a governmental "program or activity," the "program or activity" at issue was the entire system of juvenile institutions operated by the State of Ohio, rather than a particular juvenile facility. Lothes v. Butler County Juvenile Rehabilitation Center, No. 06-3389, 2007 U.S. App. Lexis 16559 (6th Cir.).
     New Jersey intermediate appeals court upholds Merit System Board's decision that county was entitled to designation of eight Juvenile Detention Officer positions as "male-only" on the basis of "bona fide occupational qualification" because of privacy interest of male juvenile detainees in not being viewed by female officers while showering, using toilet, and being strip-searched. In the Matter of Juvenile Detention Officer Union County, 837 A.2d 1101 (N.J. Super. A.D. 2003). [N/R]
    Male and female prisoners were not "similarly situated" for purposes of male prisoner's lawsuit complaining that the female prisoners were given a greater degree of privacy in toilets and showers than that afforded to males. Stronger security concerns involving male prisoners justified surveillance of male prisoners in toilets and showers by correctional officers, including female officers. Oliver v. Scott, #00-10898, 276 F.3d 736 (5th Cir. 2002).[2002 JB Apr]
     285:141 Federal appeals court orders further proceedings on whether male and female prisoners are "similarly situated"; male prisoners' complaints that they are subjected to a lower living standard, harsher work assignments, and other unequal treatment compared to female prisoners should not have been dismissed without detailed factual findings. Yates v. Stalder, #99-30744, 217 F.3d 332 (5th Cir. 2000).
     277:12 Termination of female correctional officer at the end of her probationary period was not sex discrimination when her performance evaluations showed that she was "not qualified" for the job; under these circumstances, the court did not need to reach the issue of whether male co-workers were treated differently. Warfield v. Lebanon Correctional Institution, #98-3588, 181 F.3d 723 (6th Cir. 1999).
     280:58 Federal appeals court upholds $385,000 sanction against state correctional department for failure to obey court orders to provide equal access to vocational training and apprenticeship programs for female prisoners. Glover v. Johnson, #98-1900, 98-2140, 199 F.3d 310 (6th Cir. 1999).
     265:14 Assigning only female correctional officers to certain posts where they were required to observe female inmates in the showers and toilet areas was not sex discrimination; policy was reasonable response to concerns over inmate privacy and allegations of abuse by male officers. Robino v. Iranon, #97-16470, 145 F.3d 1109 (9th Cir. 1998).
     » Editor's Note: For a similar ruling, see Torres v. Wisc. Dept. of Health & Social Serv., 859 F.2d 1523 (7th Cir. 1988) (en banc).
     [N/R] Facilities of state department of corrections are places of "public service" within the meaning of Michigan Civil Rights Act; differing treatment of prisoners of different genders, however, may be permissible if such treatment is substantially related to achievement of important penological interests. Neal v. Michigan Dept. of Corrections, 592 N.W.2d 370 (Mich. App. 1998).
     [N/R] Prison officials could not be held in contempt for alleged failing to comply with the terms of remedial plans for sexual discrimination in educational and vocational opportunities which had not been adopted as court orders. Glover v. Johnson, #95-1521, 96-1852, 96-1931, 96-1948, 138 F.3d 229 (6th Cir. 1998).
     242:27 Differences in package receipt and cassette player possession rules for male and female prisoners in Arkansas correctional facilities were justified by differences in security considerations in male and female facilities and other differences in the circumstances of the prisoners, so that differences in privileges did not violate equal protection. Prince v. Endell, 78 F.3d 397 (8th Cir. 1996).
     250:156 Arkansas agrees, in settlement of sex discrimination lawsuit by Justice Department, to hire 400 female correctional officers to work in male state prisons, to allow these officers to perform all job functions except strip searches, and to pay $20 million in back wages to female applicants previously denied jobs and female officers previously denied promotions. U.S. Dept. of Justice v. Arkansas, U.S. Dist Chicago Tribune, p. 16 (June 20, 1997). [N/R] Male and female prisoners were not similarly situation for purposes of female prisoners' claim that they were denied equal prison industry employment opportunities. Keevan v. Smith, 100 F.3d 644 (8th Cir. 1996).
     [N/R] Conditions in prison segregation unit did not present any "atypical and significant hardship" as would present a federal constitutional issue. Higgason v. Farley, 83 F.3d 807 (7th Cir. 1996).
     232:61 Policy of assigning only female employees to women's unit of mixed gender prison did not constitute sex discrimination under either federal or Iowa law, federal appeals court rules. Tharp v. Iowa Department of Corrections, 68 F.3d 223 (8th Cir. 1995).
     234:94 Update: Federal appeals court upholds determination that any differences between programs and services available to female and male inmates in Iowa correctional institutions were justified by "legitimate penological interests" and that programs available to male and female inmates with the same custody levels were "substantially similar." Pargo v. Elliott, 69 F.3d 280 (8th Cir. 1995).
     227:174 Trial court should not have rejected female prisoners' claim that they had been subject to sexual discrimination by being provided different services and programs than male prisoners when trial judge failed to make detailed factual findings concerning whether male and female prisoners were "similarly situated." Pargo v. Elliott, 49 F.3d 1355 (8th Cir. 1995).
     218:29 Female prisoners' equal protection rights were not violated even if they did have certain programs which were inferior to those provided in one of the state's all-male facilities. Klinger v. Dept. of Corrections, 31 F.3d 727 (8th Cir. 1994).
     219:45 Federal statute prohibiting gender discrimination in education applies in state prisons receiving federal funds; federal appeals court rules that "penological necessity" is not a defense to suits brought under this statute, but merely a factor to be considered in determining how it applies in the prison context. Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994).
     219:46 Prison officials were entitled to qualified immunity from liability for failure to provide a program for overnight visitation of male inmate's infant child while allowing such visitation at women's correctional facility; different security levels at the two institutions indicated that plaintiff and female inmates could reasonably be viewed as "not similarly situated." Bills v. Dahm, 32 F.3d 333 (8th Cir. 1994).
     220:60 Allowing male, but not female, inmates to participate in "boot camp" program which resulted in shorter periods of incarceration violated female prisoners' rights. West v. Virginia Dept. of Corrections, 847 F.Supp. 402 (W.D.Va. 1994).
     Incarcerating D.C. female offenders in federal facilities farther from home than male offenders did not violate equal protection. Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989).
     Female offenders incarcerated in federal facilities due to lack of facilities for female offenders in D.C. did not state equal protection claim. Pitts v. Meese, 684 F.Supp. 303 (D.D.C. 1987).

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