AELE LAW LIBRARY OF CASE SUMMARIES:
Corrections Law for Jails, Prisons and Detention Facilities
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Monthly Law Journal Article: Civil
Liability for Sexual Harassment of Female Employees By Prisoners,
2010 (7) AELE Mo. L. J. 301.
A federal appeals court ruled that the Florida Department of Corrections can be liable, under Title VII of the Civil Rights Act of 1964, for failing to remedy a sexually hostile work environment that male inmates allegedly created for female employees at a correctional facility by openly masturbating towards them, calling them sexually charged terms, and stating, in graphic detail, the sex acts they wished to perform with them.. The employees included nurses, a doctor, and a classification officer. A nurse stated that "99.9% of the time," inmate reports of emergencies in the housing units were "bogus," and simply designed to get nurses sent to the unit "to have the entertainment for the evening." The appeals court upheld a jury award of $45,000 in damages to each of 14 employees. While the facility had a sexual harassment policy, it only covered misconduct by fellow employees, and failed to cover acts by prisoners. The court found that a reasonable jury could have concluded that prison officials should have attempted to enforce a dress code requiring male inmates to wear pants when female employees were in the dorms. Beckford v. Dept. of Corr., #09-11540, 2010 U.S. App. Lexis 9452 (11th Cir.).
An Ohio inmate claimed that a prison nurse touched him in an inappropriate sexual manner. He sought damages against the state correctional agency for negligence. The Ohio Court of Claims ruled that the defendant agency was not vicariously liable for the nurse's alleged actions, since an employer is not liable for an employee's "self-serving acts" that do not further or benefit the employer's business. Claims for negligent hiring, retention, and supervision were also rejected, since there was no evidence that there was any reason to suspect that the nurse would touch a prisoner in this manner. Garrett v. Ohio Dept. of Rehabilitation and Correction, #2009-04858, 2010 Ohio Misc. Lexis 73 (Ct. of Claims).
A county sheriff hired a deputy, who was a allegedly provided with little or no training. The deputy was first assigned duties as a jailer, and later as a "road deputy." During his last week on the job, after resigning to pursue a position with the state Department of Corrections, he encountered a female employee at a convenience store who asked his advice on some legal problems. She declined his offer to go on a date with him. Learning that she had several outstanding arrest warrants, and owed approximately $800 in fees and fines, he drove to the store on his last day on the job, arrested her, and transported her to the jail, telling her that he would not have done so if she had agreed to the date. At the jail, the deputy bet a jailer that he could get the arrestee to reveal her breasts. He then told the arrestee that he could get her fines reduced if she would show him her breasts, and she eventually complied. He then allegedly grabbed her exposed breast. She sued the deputy and the sheriff, claiming that the sheriff failed to properly train the deputy. The deputy was also arrested and pled guilty to second degree sexual assault. The deputy had received a policy manual, but had not been required to read it, and, in fact, did not read it. He was scheduled to attend a training academy, but had not yet attended it at the time of the incident. The trial court found the deputy liable, as well as the sheriff in his official capacity, while granting the sheriff qualified immunity in his individual capacity. A federal appeals court overturned the inadequate training liability, noting that there was no duty specified in state statutes for sheriffs to train subordinates not to sexually assault detainees, and that there had been no past pattern of such conduct by the sheriff's deputies that would have put him on notice about the need for such training. Additionally, since a reasonable officer would know that intentionally sexually assaulting a detainee was illegal, and the deputy admitted that he knew "that such conduct was impermissible," the plaintiff failed to show that the lack of training caused the assault. Parrish v. Ball, #08-3517, 2010 U.S. App. Lexis 2748 (8th Cir.).
A correctional counselor's alleged actions of sexual harassment in staring at a prisoner for long periods of time repeatedly, and saying that he would like to engage in homosexual sex with him (i.e., that he wanted the inmate to do to him what he allegedly did to his rape victim) was not sufficiently serious to constitute an Eighth Amendment violation. There was also no evidence that the counselor's supervisor retaliated against the prisoner for becoming a Muslim by filing a false misbehavior report against him and suggesting that he fantasized about having a homosexual relationship with a male prison employee. Seymore v. Joslyn, #9:06 CV 1010, 2009 U.S. Dist. Lexis 32545 (N.D.N.Y.).
Nine separate incidents of alleged sexual harassment and discrimination that a female prison employee claimed occurred over almost a two year period did not show "severe and pervasive harassment," according to a federal appeals court, rejecting the plaintiff's argument that she was treated like a "sex object," and that the environment she worked in was like a "men's club" and was degrading and humiliating. Additionally, the city showed legitimate reasons for her termination after she stopped coming to work when there was evidence that she never submitted paperwork which would have been required for the approval of leave under the Family and Medical Leave Act, including paperwork from her doctor. Stephenson v. City of Philadelphia, No. 06-3522, 2008 U.S. App. Lexis 18629 (Unpub. 3rd Cir.).
Prisoner's claim that correctional officer made "kissing motions" or "noises" at him, and that other officers laughed, calling him a "punk" was mere verbal harassment and was not sufficiently serious to constitute a federal civil rights claim. Castillo v. San Jose Police Dept., No. C 06-3225, 2008 U.S. Dist. Lexis 4261 (N.D. Cal.).
Without special circumstances, the sexually harassing conduct of inmates in a juvenile correctional facility could not be attributed to the employer. Additionally, the alleged sexually harassing conduct of the female plaintiff's former co-workers, such as asking for dates, while it was "inappropriate" was not so severe as to make the employer liable for creating an intolerable work environment that resulted in her resignation. Vajdl v. Mesabi Acad. of Kidspeace, Inc., No. 06-2482, 2007 U.S. App. Lexis 9368 (8th Cir.).
Florida appeals court overturns trial court decision dismissing a charge against a prisoner of exposing his sexual organs to a female deputy in a county jail. While the trial court ruled that a deputy could not be an "offended" party to such an exposure, and that the prisoner's cell was not a public place, the appeals court ruled that criminal charges under the statute did not require proof that the deputy was "offended," and that after the deputy told him to stop masturbating, he knew that he was not by himself and was therefore in "public" for purposes of the law, and still allegedly continued his exposure of himself. State of Florida v. Cromartie, No. 4D05-1568, 2006 Fla. App. Lexis 16476 (4th Dist.). [N/R]
Occasional incidents of sexually "inappropriate" language by co-workers were not severe and pervasive enough to show that female correctional employee faced a hostile work environment constituting sexual harassment in violation of federal law. The complained of remarks were "isolated" incidents, offhand comments, and simple "teasing." Benny v. Penn. Dept. of Corrections, No. 05-5499, 2006 U.S. App. Lexis 28596 (3rd Cir.). [N/R]
While verbal sexual harassment of a prisoner by a correctional officer was "unacceptable," it was insufficient, in the absence of any claim that the officer or anyone else physically assaulted him, to assert a constitutional claim for violation of Eighth Amendment rights. Kirk v. Roan, No. 1:04-CV-1990, 2006 U.S. Dist. Lexis 65676 (M.D. Pa.). [N/R]
California state Department of Corrections could be held liable for failure to remedy hostile work environment caused by male prisoners' sexual harassment of female correctional officers. Further proceedings ordered on jury's finding that three prison administrators violated female correctional officer's First Amendment rights in allegedly retaliating against her for complaining about the harassment. Freitag v. Ayers, No. 03-16702, 2006 U.S. App. Lexis 23383 (9th Cir.). [2006 JB Nov]
Prisoner's disciplinary conviction for grabbing the breast of a female nurse was supported by sufficient evidence, and the rule prohibiting such conduct was clear enough to give him notice that such conduct was prohibited. Snider v. Fox, No. 32767, 627 S.E.2d 353 (W. Va. 2006). [N/R]
Juvenile facility in Hawaii ordered to take steps to remedy "pervasive" sexual, physical, and verbal abuse of lesbian, gay, bisexual, or transgender juvenile wards, and to stop, except in emergencies, using isolation as a means of "protecting" such wards against abuse and harassment. Court rejects, however, the claim that staff members violated the First Amendment rights of the juveniles by quoting from the Bible or discussing religion with them, when there was no evidence that these actions were based on the facility's policies. R.G. v. Koller, No. Civ.05-00566, 415 F. Supp. 2d 1129 (D. Hawaii 2006). Subsequent decision at 2006 U.S. Dist. Lexis 21254. [2006 JB Jun]
Male correctional officers alleged acts of sexual harassment, including asking female officer out on dates, including out of town trip, and engaging in alleged retaliation when she refused was sufficiently severe or pervasive to state a cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Porter v. California Dept. of Corrections, No. 02-16537, 419 F.3d 885 (9th Cir. 2005). [N/R]
Female prison employees' claim that male warden gave favorable treatment to other female employees with whom he was having sexual affairs, while they were retaliated against when they complained, was sufficient, under California law, to create a viable case of sexual harassment. Miller v. Dept. of Corrections, No. S114097, 2005 Cal. Lexis 7606 (2005). [2005 JB Sep]
While correctional officer's comments made to female employee of juvenile boot camp were of a sexual nature, they were not severe and pervasive enough to constitute sexual harassment. Moser v. Indiana Dep't of Corr., No. 04-1130 406 F.3d 895 (7th Cir.2005). [N/R]
Female correctional officer failed to show that alleged sexual harassment by a co-worker was "severe or pervasive" as required to impose liability on her employer, or that employer ignored her complaint about his conduct. Sheriff's office, in fact, took the incident in question seriously, and suspended the male deputy without pay for thirty days. Hathaway v. Multnomah County Sheriff's Office, No. 03-35571, 123 Fed. Appx. 806 (9th Cir. 2005). [N/R]
Prison guard did not violate a Pennsylvania prisoner's Eighth Amendment rights by allegedly "blowing kisses" at him. While the prisoner claimed that this made him "fearful" of a future potential sexual assault, such conduct, while "unprofessional" did not state a claim for violation of federal civil rights. Prison psychiatrist had a clear obligation to report the prisoner's alleged subsequent threats against the guard, and was not required to give him Miranda warnings before discussing the incidents with him. The prisoner's statements to the psychiatrist were therefore admissible in subsequent prison disciplinary proceedings against him. Burkholder v. Newton, 116 Fed. Appx. 358 (3rd Cir. 2004). [N/R]
California prisoner could not seek damages under 42 U.S.C. Sec. 1983 for sexual harassment by officers based on mere verbal harassment. Prisoner claimed that one officer unzipped his clothing and told the inmate to grab the officer's penis, walking away laughing when he refused, and that a second officer held a candy bar towards his genital area, flipping it up and down, and then responding "I don't kiss and tell" when the inmate asked if this action was directed towards him. Minifield v. Butikofer, 298 F. Supp. 2d 900 (N.D. Cal. 2004). [N/R]
Male correctional officer was properly awarded $750,000 in compensatory damages for alleged sexual harassment by a female co-worker and the alleged failure to his superiors to adequately remedy the problem, along with $850,000 in attorneys' fees and costs. New Jersey Supreme Court upholds, however, reversal of $3 million punitive damages award, based on inadequate jury instructions concerning willful indifference by upper management which failed to explain the term "upper management." Further proceedings ordered on issue of punitive damages. Lockley v. State of New Jersey Department of Corrections, 828 A.2d 869 (N.J. 2003). [N/R]
Female correctional officers showed that sheriff's office provided a pervasively sexually hostile work environment for female employees and that they faced unlawful retaliation for complaining about it. Officers did not show, however, that they were denied promotions and were terminated on the basis of sex discrimination. Court awards both of two plaintiffs $150,000 in compensatory damages and $20,000 in punitive damages, as well as attorneys' fees. Brissette v. Franklin County Sheriff's Office, 235 F. Supp. 2d 63 (D. Mass. 2003). [N/R]
Correctional officials were entitled to qualified immunity in lawsuit brought by prison nurse. Plaintiff failed to adequately establish that defendants' decision to transfer her to another facility where inmates had allegedly made threats against her life was motivated by a desire to retaliate against her for opposing a supervisor's alleged sexual harassment of a subordinate. Strouss v. Michigan Department of Corrections, No. 99-2501, 250 F.3d 336 (6th Cir. 2001). [N/R]
Male prisoner's claim that female correctional employee asked him to have sex with her and to masturbate in front of her and other female staff members, even if true, did not suffice to state a claim for sexual harassment in violation of the Eighth Amendment. Employee's action of calling him a "stoolie" in front of other inmates after he filed a grievance over the alleged harassment was also not a basis for recovery. Prisoner did state a claim for retaliatory transfer following his grievance filing. Morales v. Mackalm, No. 00-0113, 278 F.3d 126 (2nd Cir. 2002). [2002 JB May]
Sexual offenders' claim that they were subjected to visual body cavity searches as retaliation for laughing at officers and harassed for their status as sex offenders did not warrant injunctive relief. Prisoners' claim for damages was barred by a provision of the Prison Litigation Reform Act prohibiting claims for mental or emotional injury without a prior showing of physical injury. Seaver v. Manduco, 178 F. Supp. 2d 30 (D. Mass. 2002). [2002 JB May]
296:117 Female correctional officer was properly awarded $45,000 against New Hampshire Dept. of Corrections based on sexual harassment and a hostile work environment which included male co-workers making sexual remarks and propositions and reading pornographic magazines at work. White v. New Hampshire Dept. of Corrections, No. 99-1818, 221 F.3d 254 (1st Cir. 2000).
294:93 Virginia prison policy mandating short hair, which had no exception for religious objections, upheld by federal court as "neutral" policy with only "incidental" impact on religious practices; court rejects claim that different hair length standards for male and female prisoners violates equal protection. DeBlasio v. Johnson, 128 F. Supp. 2d 315 (E.D. Va. 2000).
290:28 Female detainee compelled to strip and dance for male and female inmates and guards was properly awarded $350,000 in compensatory damages; District of Columbia, as a municipality, could not, however, be held liable for $5 million in punitive damages. Daskalea v. District of Columbia, #98-7207, 227 F.3d 433 (D.C. Cir. 2000).
278:28 Failure to adequately supervise jail guards to prevent sexual harassment of female prisoners results in civil rights liability for District of Columbia; plaintiff prisoner asserted that she and others were forced to participate in "strip-shows" and "exotic" dancing for guards; "exhaustion of remedies" provision of Prison Litigation Reform Act did not apply. Newby v. District of Columbia, 59 F. Supp. 2d 35 (D.D.C. 1999).
279:37 UPDATE: Law firm that won $3.75 million award for male correctional officer sexually harassed by a female co-worker awarded $822,000 in attorneys' fees, including an enhancement based on an evaluation that it pursued a "difficult" case. Lockley v. New Jersey, L-03195- 94, New Jersey trial court, reported in The National Law Journal, p. A12 (September 27, 1999).
[N/R] Non-supervisory co-worker in department of corrections was not personally liable for sexual harassment under California state statute. Carrisales v. Dept. of Corrections, 988 P.2d 1083 (Cal. 1999).
271:109 Male correctional officer awarded $3.75 million in damages in lawsuit asserting that correctional officials took no action after he complained of female co- worker's repeated alleged acts of sexual harassment following his spurning of her sexual advances. Lockley v. New Jersey, L-03195-94, New Jersey trial court, reported in The National Law Journal, p. B7 (June 21, 1999).
258:83 U.S. Supreme Court unanimously rules that same-sex sexual harassment claims can be pursued under Title VII of the Civil Rights Act of 1964. Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998).
258:94 Three female former employees of California men's prison received $4 million settlement in damages and attorneys' fees on claims that they were subjected to sexual harassment and retaliation. George v. Duncan, Superior Court, San Luis Obispo, California, reported in San Luis Obispo Telegram-Tribune, April 2, 1998.
263:164 U.S. Supreme Court issues two important decisions on sexual harassment; establishes legal standards for employer liability for supervisor's harassment; prompt corrective action by employer can limit or bar liability. Burlington Indus. v. Ellerth, #97-569, 118 S.Ct. 2257 (1998); Faragher v. City of Boca Raton, #97-282, 118 S.Ct. 2275 (1998).
267:42 Texas prisoner complaining that body cavity searches were used to sexually harass him could not proceed as pauper in lawsuit or appeal of dismissal when he previously filed four frivolous lawsuits and did not allege imminent danger of serious physical harm at time of filing lawsuit or appeal. Banos v. O'Guin, #97-40354, 144 F.3d 883 (5th Cir. 1998).
268:61 Federal court rules that female correctional officer's sexual harassment lawsuit could be based on alleged failure of correctional officials to discipline prisoners for masturbating in front of her in violation of prison rules, but finds that plaintiff officer failed to prove that such failure to discipline occurred. Wright v. Dept. of Corrections, 31 F.Supp.2d 1336 (M.D. Ala. 1998).
271:109 Department of Corrections was not liable for sexual harassment in case where female officer asserted that co-workers and prisoners spread rumors that she had undergone a sex change operation and/or had male genitalia; department took remedial actions, including issuing statement against sexual harassment, disciplining one officer, and offering plaintiff officer a transfer to other facilities. Brittell v. Department of Correction, 717 A.2d 1254 (Conn. 1998).
275;173 Prison officials could not be held liable for sexual harassment based on male prisoner's offensive conduct, including masturbating on and around female correctional officers; prisoners were not agents of defendant officials and plaintiff officers failed to present any effective way defendants could prevent such behavior by prisoners. Hicks v. Alabama, 45 F.Supp.2d 921 (S.D. Ala. 1998).
245:78 Federal trial court declines to dismiss sexual harassment lawsuit brought by female corrections officer based on actions of same sex superior. Williams v. Dist. of Columbia, 916 F.Supp. 1 (D.D.C. 1996). » Editor's Note: In Quick v. Donaldson Co., Inc., 90 F.3d 1372 (8th Cir.), reh'g en banc denied, 1996 U.S. App. Lexis 24919 (1996), the U.S. Court of Appeals for the Eighth Circuit became the first federal appeals court to explicitly rule that same sex harassment presents a cause of action under Title VII of the Civil Rights Act of 1964. On Oct. 7, 1996, the U.S. Supreme Court rejected petitions for review in three cases in which federal appeals courts had rejected male-on- male sexual harassment claims under Title VII. Fleenor v. Hewitt Soap Co., 81 F.3d 48 (6th Cir.), cert. denied, 117 S.Ct. 170, 1996 U.S. Lexis 5418 (1996), Hopkins v. Baltimore Gas & Electric, 77 F.3d 745 (4th Cir.), cert. denied, 117 S.Ct. 70, 1996 U.S. Lexis 4766 (1996), and McWilliams v. Fairfax Co. Board of Supervisors, 72 F.3d 1191 (4th Cir.), cert. denied, 117 S.Ct. 72, 1996 U.S. Lexis 4780 (1996). In another recent case, a federal appeals court also ruled that same-sex sexual harassment is "not cognizable under Title VII." Oncale v. Sundowner Offshore Services, Inc., 83 F.3d 118 (5th Cir. 1996). While not directly ruling on the issue, the following cases imply that Title VII prohibits same-sex sexual harassment, at least under some circumstances. See, Saulpaugh v. Monroe Community Hospital, 4 F.3d 134 (2nd Cir. 1993), cert. denied, 510 U.S. 1164 (1994); Baskerville v. Culligan International Co., 50 F.3d 428 (7th Cir. 1995); EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989); and Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).
246:92 Co. not liable for sexual harassment of female jailer when it took prompt steps to reprimand male jailer who instructed inmate to draw obscene picture of her about to engage in sexual intercourse with a prisoner, and then showed drawing to co-workers at roll call. Waymire v. Harris Co., Texas, 86 F.3d 424 (5th Cir. 1996).
249:142 Prisoners may state an Eighth Amendment claim for sexual abuse by correctional officers, federal appeals court rules, but male plaintiff prisoner's assertion that female correctional officer "made a pass" at him, and pressed up against him was not sufficiently serious to rise to a constitutional violation. Boddie v. Schnieder, 105 F.3d 857 (2nd Cir. 1997).
250:158 Officer was entitled to qualified immunity from inmate's same-sex sexual harassment lawsuit, as there was no clearly established federal right to be free from same-sex sexual harassment while employed in prison laundry; U.S. Supreme Court to grant review of another case to determine whether federal law prohibits same-sex sexual harassment. Blueford v. K.W. Prunty, 108 F.3d 251 (9th Cir. 1997). Another federal appeals court rejected a same sex harassment claim (not involving inmates or correctional employees, but arising in a private employment context), and the U.S. Supreme Court has now agreed to resolve the conflict between various federal courts on this issue by granting review of that case. Oncale v. Sundowner Offshore Services, Inc., 83 F.3d 118, rehearing denied, 95 F.3d 56 (5th Cir. 1996), cert. granted, 117 S.Ct. 2430, 1997 U.S. Lexis 3681 (June 9, 1997).
253:13 Male inmate's "welcome and voluntary" sexual interactions with female prison employee could not be the basis of a constitutional claim of sexual harassment; prisoner's transfer after complaining of alleged harassment also did not state a constitutional claim. Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997).
251:173 Female prisoner working in prison-run industry was not entitled to bring Title VII sexual harassment lawsuit against prison officials; court rules that Title VII does not apply to prisoners, who do not voluntarily choose to work, but are required to do so. McCaslin v. Cornhusker State Industries, 952 F.Supp. 652 (D. Neb. 1996).
229:12 Correctional officer's alleged sexual harassment of inmate, including spreading rumors to other prisoners that he was a homosexual and a "snitch," stated a claim for Eighth Amendment violation. Thomas v. District of Columbia, 887 F.Supp. 1 (D.D.C. 1995).
230:28 Deputy trainee who allegedly sexually harassed female prisoner in county jail did not violate her clearly established rights and was entitled to qualified immunity; verbal sexual harassment was not the equivalent of violence or threats of violence for Eighth Amendment purposes. Adkins v. Rodriguez, 59 F.3d 1034 (10th Cir. 1995).
232:62 Corrections Department was not liable for fellow employees sexually harassing remarks about female employee's nipples when Department made a prompt and effective response to remedy the situation after she complained; injunction and award of attorneys' fees to female employee overturned by federal appeals court. Spicer v. Com. of Va., Dept. of Corrections, 66 F.3d 705 (4th Cir. 1995). [Cross- reference: Attorneys' Fees].
239:172 Male deputy's sexual harassment of three female deputy sheriffs at county jail, including one who he had training responsibility for, was not within the scope of his employment; county did not have to indemnify him, under California law, for expenses of legal defense and payment of $150,000 settlement; Co. was, however, liable for a total of $1,283,000 in damages for claims directly against it. Farmers Insurance Group v. Co. of Santa Clara, 47 Cal.Rptr.2d 478, 906 P.2d 440 (Cal. 1995).Jury awards female law clerk $50,000 on claim her contract was not renewed in retaliation for her complaints about alleged sexual harassment by male inmates. Troxa v. Contra Costa Co., No. C9304028, Contra Costa Superior Court, Calif., June 22, 1994, reported in 107 (126) Los Ang. Daily Jour. Verdicts & Settlements, p. 3 (July 1, 1994).
Alleged sexual harassment of male inmate by female prison employee would violate the Eighth Amendment; inmate could sue under 42 U.S.C. Sec. 1983 for damages. Battle v. Seago, 431 S.E.2d 148 (Ga. App. 1993). Update: Inmate's suit alleging sexual harassment by female prison employee dismissed as frivolous and fraudulent; letter from inmate to employee stated sexual fantasies and offered to "split" proceeds of lawsuit with her. McKenzie v. State of Wis., Dept. of Corrections, 138 F.R.D. 554 (E.D. Wis. 1991).
Inmate can sue prison officials under federal civil rights law for his alleged sexual harassment by female prison employee who allegedly "aggressively" demonstrated her (unwanted) sexual interest in him, sitting on his lap and grabbing his crotch. McKenzie v. State of Wis., Dept. of Corrections, 762 F.Supp. 255 (E.D. Wis. 1991).
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