Forts v. WardForts v. Ward
Lead Opinion
The modern sensitivity to the significance of gender in American life and law has made it inevitable that cases will arise where gender-based legal contentions conflict. This case arises in a context where that conflict can be expected to recur with some frequency: privacy rights versus em
The case is here on appeal and cross-appeal from an order of the United States District Court for the Southern District of New York (Richard Owen, Judge), which seeks to protect the privacy interests of women inmates at the Bedford Hills Correctional Facility (“Bedford Hills”), a women’s prison operated by the State of New York. Forts v. Ward,
The background and procedural history of this litigation require some explanation. In February, 1977, pursuant to a change in state policy,
Upon remand, Judge Owen combined the hearing on the preliminary injunction with the trial on the merits and held a twelve-day non-jury trial in December, 1977 and January, 1978. Forty-three witnesses testified, and Judge Owen, accompanied by counsel, made a personal inspection of Bed-ford Hills. At Bedford Hills each inmate occupies an individual solid-walled cell measuring seven feet by ten feet and containing a bed and a toilet. Each cell has a solid door, controlled by guards at the end of each corridor. Each cell door has a clear glass window measuring six inches by nine inches. The interior of the cell, including the bed and the toilet, is visible to anyone in the corridor looking through the cell door window. Prison rules permit an inmate during the day to request that her cell door be closed and allow her to cover the cell door window for fifteen-minute intervals. At night the door is kept closed, but the window may not be covered.
On November 20, 1978, Judge Owen issued his decision, Forts v. Ward, supra,
Judge Owen found no reason to bar male guards from assignment to the housing corridors during the daytime hours since prison rules permitted an inmate to protect her privacy during those hours by covering the cell door window for up to fifteen-minute intervals while dressing or attending to personal needs. However, he found that because prison rules prohibited covering the door windows during nighttime hours, the assignment of male guards to the corridors during those time periods violated the inmates’ right of privacy.
Rather than immediately issuing an order implementing his opinion, Judge Owen directed the State defendants to submit a proposed order that, “while maximizing equal job opportunity, will afford each inmate the minimal privacy to which the court concludes she is entitled.” Id. at 1102. The proposed order submitted by the State defendants suggested two solutions to prevent viewing through the cell door window during nighttime hours: issuing to each inmate, upon request, a set of one-piece pajamas, commonly known as “Dr. Denton’s,” and changing the prison rules to permit inmates to cover their cell door windows at night for the same fifteen-minute intervals permitted during the daytime. The order entered by Judge Owen on April 12, 1979 rejected both of these suggestions in favor of an absolute prohibition against the assignment of male correction officers to duties during the nighttime “which require them under normal circumstances to observe female inmates through the windows of each inmate’s cell.” Forts v. Ward, supra,
. I do not think it appropriate to say to a woman, “In order to protect your privacy, you have got to be ensconced in a two-legged bag over the night or give up the right to privacy. It seems to me that she has the right to select appropriate sleep wear . . . because I don’t see any prison necessity for a particular designation of sleep wear and I don’t see that a person has to sleep in a Dr. Den-ton, if the temperature hits 90 or 95 . in order that a man may have the privilege of walking up and down the corridor and looking in upon her. .
Having decided to prohibit guards from nighttime corridor assignments primarily because he found the State’s sleepwear proposal unacceptable, Judge Owen found it unnecessary to accept the State’s additional suggestion that cell door windows could be covered for intervals during the night.
The nature of the issues presented on appeal has been significantly shaped by the fact that the State defendants have elected not to challenge Judge Owen’s order. The acquiescence of the State defendants means that there is no longer any dispute between the inmate plaintiffs and New York as to whether the nighttime viewing of completely or partially unclothed women inmates by male prison guards violates the constitutional privacy rights of the inmates. We may assume for purposes of this appeal that such viewing is a denial of constitutional rights.
Before proceeding to the merits, we must first ascertain whether the District Court had jurisdiction to consider the guards’ Title VII defense. As a general rule, the filing of a timely charge with the Equal Employment Opportunity Commission (EEOC) is a prerequisite to the maintenance of a Title VII action in the District Court. United Air Lines, Inc. v. Evans,
When Title VII rights are asserted defensively, the failure of a court to consider these rights for lack of administrative exhaustion risks not only the entry of an overly broad order, but also protracted litigation. The union defendants had no Title VII grievance until after the entry of Judge Owen’s order. At that point EEOC consideration would have delayed the ultimate resolution of the litigation and been, at most, of only advisory value since the agency would have been without power to disturb an order of a federal district court.
The merits of the guards’ Title VII defense appears to place their equal employment rights in opposition to the inmates’ privacy rights.
In most respects Judge Owen skillfully avoided an ultimate conflict between employment and privacy rights by carefully tailored adjustments to either facilities or work assignments. In protecting the inmates’ privacy at the prison hospital, the judge prohibited the stationing of male guards at locations where inmates could be viewed completely or partially unclothed. That precise limitation on job assignments has apparently caused no removal of male guards from normally assigned shifts. However, the remedy adopted to protect the privacy of the inmates in their cells during nighttime hours has placed privacy and employment rights in direct conflict and resulted in a denial of equal employment opportunities for the male guards and, as a consequence of their reassignment, for the female guards as well. We believe the process of making careful adjustments, which Judge Owen pursued for most of the disputes before him, can be continued to resolve the contested matter of nighttime observations.
The male guards have been prohibited from the nighttime shifts to avoid the opportunity for them to view women inmates on those infrequent occasions when the inmates are completely or partially unclothed. There are obviously two ways to avoid that opportunity in every circumstance in which it exists: remove the men or obstruct their view. The availability of this choice of remedies to protect the privacy of the inmates was fully recognized by the District Court with respect to a portion of this case. For example, the inmates complained that their privacy was impaired when male guards had the opportunity to view them taking showers during daytime hours. Instead of removing male guards from daytime shifts, Judge Owen ordered installation of a translucent screen, which permitted only enough visibility to ascertain that the shower area was occupied. See Forts v. Ward, supra,
We need not decide in this case to what extent an employer may be required to expend money or alter procedures to avoid a situation that, if uncorrected, would justify gender-based discrimination. In this case, the employer has already acknowledged its willingness to make necessary changes to eliminate the opportunity for viewing in the two circumstances that impair the privacy of the inmates during the nighttime hours.
The first circumstance concerns the sporadic situations when the inmates are subject to viewing through the cell door window while they are changing clothes or using the toilet. The prison authorities offered to prevent these opportunities for viewing by amending the prison rules to permit the inmates to cover the window for fifteen-minute intervals during the nighttime hours, just as they are currently permitted to do during the daytime. There is nothing in the record to indicate why that proposed rule change would not protect privacy at nighttime as satisfactorily as it does during the daytime.
We therefore vacate so much of the order appealed from as prohibits the assignment of male guards to the nighttime shifts in dormitories of Bedford Hills and remand for further proceedings to revise the order with appropriate means to eliminate the opportunities for viewing that have been found to impair the privacy rights of the inmates.
As to plaintiffs’ cross-appeal from the denial of class certification, we find no basis to disturb the District Court’s exercise of discretion. The order appealed from benefits all members of the alleged class, and the State defendants have not appealed and have explicitly indicated a willingness to comply. In these circumstances, class certification would be “largely a formality,” Galvan v. Levine,
Vacated and remanded for further proceedings consistent with this opinion.
Notes
. The union is Security Unit Employees Council 82, American Federation of State, County and Municipal Employees, AFL-CIO (Council 82).
. Plaintiffs initially cross-appealed more broadly, challenging the District Court’s order for failing to provide greater protection for their privacy rights. This aspect of their appeal has been withdrawn, the plaintiffs preferring to determine whether implementation of the order in practice warrants any further relief. Judge Owen explicitly retained jurisdiction to modify the order.
. “This new assignment policy was an attempt by the Department of Correctional Services to eliminate sex certification in the assignment and transfer of correction officers and to implement the collective bargaining agreement between the State and the correction officers’ union.” Forts v. Ward,
. The complaint also sought certification of a sub-class consisting of the approximately 100 Muslim women at Bedford Hills. The complaint alleged that as a result of the complained of assignment practices, the members of the sub-class were forced to expose their bodies to males “in violation of their religious beliefs” and their First Amendment rights to the free exercise of their religion. On their cross-appeal, the inmate plaintiffs have not contested the denial of their request for certification of the sub-class. On the merits, the free exercise
. Judge Owen’s opinion also found that the assignment of male guards to the corridors during the morning count violated the inmates’ right to privacy: . somewhere between 6:30 and 6:45 in the morning, the inmates are awakened and all the cell doors are simultaneously rolled open by a master switch. ... At that point, the inmates obviously do not have even the door to protect them from anything. Some inmates may wish to use the toilet upon arising; some, while waiting, may wish to change from night clothes into day clothes; one may find her night clothes and
. Since we conclude that the guards’ Title VII challenge to Judge Owen’s remedy is well taken and can be vindicated without impairing the privacy interests of the inmates, we need not decide whether, had that challenge failed, the guards would have had standing to appeal the finding of a constitutional violation. That determination involved the privacy interests of the inmates and the security interests of the state, and it is not clear that the guards, who appear to have been named as defendants solely to effectuate relief, could appeal the constitutional determination that New York’s security interests do not justify impairment of the inmates’ privacy interests.
. The pertinent provisions of Title VII make it unlawful for an employer to discriminate with respect to “terms, conditions, or privileges of employment” or “to limit, segregate, or classify his [sic] employees ... in any way which would deprive or tend to deprive any individual of employment opportunities,” because of such individual’s sex.
. Another, perhaps sufficient _ reason for refusing to require administrative exhaustion is that the union defendants, in addition to directly asserting their Title VII rights, have done so indirectly by asserting their rights under the collective bargaining agreement entered into between Council 82 and the State of New York. The 1977-79 agreement, which was the governing contract at the time Judge Owen’s opinion was issued, provides in pertinent part:
The Employer and the Union agree that the provisions of this Agreement shall be applied equally to all employees in compliance with applicable law against discrimination as to age, race, creed, color, national origin, sex, disability, marital status and political affiliation. (emphasis added).
The agreement also provides that “job assignments and shift selection shall be made in accordance with seniority!,] provided the employee has the ability to properly perform the work involved.” An employee or his union representative is generally entitled to assert his contractual rights as a defense against an action that implicates those contractual rights. See Equal Employment Opportunity Commission v. American Telephone and Telegraph Co.,
. We note that the dispute raised on this appeal does not involve a conflict between privacy interests and prison security interests. See Dothard v. Rawlinson,
. At a conference in which the State defendants’ proposed order was considered, Judge Owen questioned whether the proposal for fifteen-minute covering of cell door windows during nighttime hours might create some security problem in connection with the time period just prior to the morning count. Since the State defendants proposed the fifteen-minute covering during nighttime hours, we assume they were satisfied that no security interests would be impaired. We note that the State defendants’ proposal does not preclude female guards from entering cells during intervals when the cell door windows are covered. However, we do not mean to foreclose the prison authorities from presenting legitimate security concerns, either upon remand or thereafter, if experience indicates unanticipated problems. Nor do we mean to foreclose the inmates from pursuing any claim that the fifteen-minute window covering is not achieving adequate protection of their privacy. On the present record, the fifteen-minute covering appears to be an acceptable way of accommodating both the inmates’ privacy interests and the employees’ equal employment rights. Even if some further refinements in the State defendants’ proposal is warranted, we would expect every effort to be made, by all sides, to assist the District Court in formulating a final decree that provides adequate protection to all concerned.
. When the proposed order was discussed, it was acknowledged by counsel that the suggesting of issuing a “Dr. Denton’s” was an unfortunate one and that this item was not the only sleepwear the State defendants were willing to furnish. Specifically mentioned was a set of two-piece pajamas.
. This decision is not intended to preclude the District Court from continuing the present order in effect, on an interim basis, pending entry and implementation of a revised final decree.
. Since the State defendants have not appealed and since our disagreement with the District Court’s order requires nothing more than implementation of remedies suggested by the State defendants themselves, we believe our resolution of the dispute is consistent with the teachings of Bell v. Wolfish,
Concurrence Opinion
concurring:
This case presages a problem that will occupy more and more time of the federal courts — the balancing of conflicting interests that have been elevated to the category of statutory or constitutional rights. In this case, the female guards at Bedford Hills assert the right to be treated as men, while the female inmates assert the right to be treated as women. Because Judge Newman has resolved their differences in Solomonic fashion, I concur. However, I think it would have been better if the problem had been left in the hands of the prison authorities. See Bell v. Wolfish,