F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M E R C Y A M B A T , Plaintiff

,

and

Z A I N A B U A N D E R S O N ; S H A R

O N C A S T I L L O ; J O A

N N A C R O T T Y ; P A T T I F L Y N N ; T E R E S A F O X ; L I S A J A

N S S E N ; R I C H A R D L E E ; G L O R

I A M A R T I N ; A N T H O N Y P E P P E R S ; M A T T I E S P I R E S

M O R G A N ; Y V E T T E W I L L I A M S ; R O L A N D Z A N I E ; P A M E L

A W A L K

E R ; G W E N D O L Y N H A R V E Y -N O T O ; J E N N I F E R K E E T O

N ; O L G A K I N C A D E ; E M I K O T H E O D O R

I D I S ; M A R

T H A O R T E G A , Plaintiffs-Appellants

,

v

.

C I T Y A N D C O U N T Y O F S A

N F R A N C I S C O , Defendant-Appellee

. N o. 11-16746

D.C. No. 3:07-cv-03622-SI

M E R C Y A M B A T , Plaintiff

,

and N o. 11-16752

D.C. No. 3:07-cv-03622-SIA

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. O F S A N F R A N C I S C O 2

J O N G R A Y , Plaintiff-Appellant

,

v

.

C I T Y A N D C O U N T Y O F S A

N F R A N C I S C O , Defendant-Appellee

.

M E R C Y A M B A T , Plaintiff

,

and

Z A I N A B U A N D E R S O N ; S H A R

O N C A S T I L L O ; J O A

N N A C R O T T Y ; P A T T I F L Y N N ; T E R E S A F O X ; L I S A J A

N S S E N ; R I C H A R D L E E ; G L O R

I A M A R T I N ; A N T H O N Y P E P P E R S ; M A T T I E S P I R E S

M O R G A N ; Y V E T T E W I L L I A M S ; R O L A N D Z A N I E ; P A M E L

A W A L K

E R ; G W E N D O L Y N H A R V E Y -N O T O ; J E N N I F E R K E E T O

N ; O L G A K I N C A D E ; E M I K O T H E O D O R

I D I S ; M A R

T H A O R T E G A , Plaintiffs-Appellants

,

v

.

C I T Y A N D C O U N T Y O F S A

N F R A N C I S C O , Defendant-Appellee

. N o. 11-17330

D.C. No. 3:07-cv-03622-SI

OPI NI ONA

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A ppeal from the United States District Court for the Northern District of California Susan I llston, Senior District J udg e, Presiding

Arg ued and Submitted December 4, 2013—San F r ancisco, California

F iled J uly 2, 2014

B efore: Stephen S. Trott, Sidney R. Thomas, and Mary H. Murg u ia, Circuit J udg es.

Opinion by

J u dg e Murg uia

SUMMARY *

Em ploym ent Discrim ination

The panel affirmed in p art, r eversed in part, and vacat ed in part the district court’s judg ment in favor of t h e C i t y a nd County of San F r ancisco, and d ismissed plaintiffs’ appeal in part, in a Title VI I case in w hich deputies of the San F rancisco Sheriff’s Department c halleng ed a p olicy prohibiting male deputies from supervising female inmates in the housing units of the Sheriff’s Department’s jails.

The panel reversed the distr ict court’s g rant of summary ju d g ment to the County o n sex d iscrimination c laims a nd derivative claims and vacated the denial o f s ummary

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A

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judg ment to plain t i f

fs on those c laims. The panel held that the County was unable to bear its burden of d emonstrating that there was n o g enuine issue of material fact as to whether it w as entitled to a “ bona f i d e occupational qualification” defense. T he panel concluded that there were g enuine issues of material fact as to whether a r easoned decision-making
process, based on a v ai l able information and ex perience, led
to the Sheriff’s adoption of the polic y , s uch that it w o uld be entitled to deference. Ther e were also g enuine issues o f material fact as to whether ex cluding male deputies because of thei r sex was a leg itimate substitute for ex cluding them because t hey were a c tually unfit to serve in the f emale housing pods.

The panel dismissed plaintiffs’ appeal from v arious evidentiary ruling s because, in lig ht of the panel’s reversal o f the district court’s g rant o f summary jud gm ent, plaintiffs could not establish prejudice.

The panel affirmed the district court’s award o f attorney ’s fees as to settled claims.

The panel affirmed the district court’s g rant of summary judg ment on one plaintiff’s retaliation claims.

COUNSEL

L awrence D. Murray (arg ued) and Robert C. Str ickland, Murray & Associates, S a n F rancisco, California, for Plaintiffs-Appellants Mercy Ambat, et al.A

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Daniel H. B r omberg (arg

ued) and T imothy A. B u tler, Quinn Emanuel U rq u hart & Sullivan, L L P, Redwood Shores, California, for Plaintiff-Appellant J ohn Gray

.

Dennis J

. H errera, City A ttorney ; Eliz abeth S. Salveson, Chief L abor Attorney ; and Rafal Ofierski, De p u ty City Attorney (arg

ued), San F rancisco, California, for D efendantAppellee.

OP INION

MURGUI A, Circuit J udg e:

Plaintiffs, current and former dep u t i es of the San F rancisco Sheriff’s Department (“SF SD”), appeal the district court’s order g ranting summary judg ment to the City a nd County of San F rancisco ( the “ County ” ) on their challeng e to SF SD’s policy prohibiting male deputies from s u pervising female inmates in the housing u nits of SF SD’s j a i l s

. The district court concluded that SF SD’s policy d i d n o t violate Title VI I ’s prohibition on sex discrimin a t i on because it fell within the statute’s “ bona fide occup a t ional qualification”

ex c e ption, 42 U.S.C. § 2000e-2(e)(1). W e reverse the district court’s g rant of summary judg ment to the County on the sex discrimination claims and vacate the denial of su m mary judg ment to plaintiffs on those claims.

I. F acts and P rocedural History

I n October 2006, S FS D implemented a new p olicy prohibiting male deputies from supervising female inmates in the housing units of the jails o p e r at ed by the County (the “Policy ” ). Sing le-sex staffing pol i cies in correctionalA

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facilities are not n ew, and we have considered before whether

s u c h p o l i ce s v i o l a t e T i t l e V I I b y i m p e r m i s s i b l y discriminating on the b asis of sex

. See Breiner v. Nev a da Dep’t of Corr.
, 610 F .3d 1202 (9th Cir. 2010) (holding p olicy violated Title VI I ); R o bino v. Iranon
, 145 F .3d 1109 (9th Cir. 1998) (per curiam) (holding policy did not violate Title VI I ).

The adoption of the Policy c oincided with SF SD’s plan to

c o n solidate all of its f

emale inmates within a sing le faci l i t y , County J ail 8 (“CJ 8 ”). CJ 8 has a “direct supervision” desig n, meaning that its housing units, or “pods,” are c o mposed o f cells or sleeping bay s array ed a r ound a c entral cong reg ation
space. E ach p od has two tiers and b etween 56 a n d 8 8 b e ds. At the c enter of the pod is a podium from which a deputy can

s e e into c ommon areas and into the cells and sleeping b ay s

. Each pod is staffed by two deputies, one of w hom remains at the podium while the other makes ro u n d s. F emale inmates f i l l some, but not a ll, o f the available housing pods in CJ 8. Even thoug h CJ 8 is not sing le-sex , all of its p ods are sing lesex

. T his is c onsistent w ith SF SD’s long -standing practice o f
seg reg ating female and male inmates.

Althoug h housing pods are sing le-sex

, CJ 8’s p od for inmates receiving medical or psy chiatric ca r e i s not sex

seg reg ated. Male deputies are n ot permitted under the Policy
to work w ith f

emale inmates in the housing po d s ; however, male deputies may be assig ned to the mix ed-sex medical pod

or assig ned to transport female i n m a t e s between CJ 8 a nd other locations. Male deputies may also enter female housing pods in some circumstances, s u c h a s to assist w ith f eeding female inmates.A

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According to San F ran c isco Sheriff Michael Hennessey (the “Sherif

f ” )

, w ho had held his position since 1980, 1 he adopted the Policy fo r four reasons: (1) to protect the safety of female inmates from s e x u al misconduct perpetrated b y mal e d e p uties, (2) to maintain the security of the jail in the face of female inmates ’ ability to manipulate male deputies and o f the deputies’ fear of false alleg ations of sex ual miscon d u c t b y the inmates, ( 3) to protect the privacy o f female inmates, and (4) to p ro m o te the successful rehabilitation of female inmates.

Of the four reasons the Sheriff claims led him to enact the Policy

, he identified protecting the safety of inmates from

sex ual misconduct as the most important. As the County pointed out, b etwe e n 2001 and 2009, SF SD investig ated twelve complaints of sex ual m i sconduct or inappropriate

sex ual r elationships between a m a l e d e puty and a f emale inmate. T en o f those incidents occurred before the Policy was implemented in 2006, and two occurred after. Notably

, four o f the twelve incidents occurred in 2005, t he y e ar immediately preceding the implementation of the Poli c y

. SF SD sustained the alleg ations of misconduct and disciplined deputies in two of the inci d e n t s: a 2001 incident in which a male deputy had an inappropriate relationship with a female inmate w ith the intent to “cultivate a sex ual relationship” a nd a 2007 incident, after the Policy had been adopted, in which

a male d eputy was present during a female inmate’s strip search. T hree a d d i tional investig ations were followed by a deputy ’s res i g n ation; these concerned inappropriate contact

or sex acts. SF SD also faced lawsuits in 2 0 0 0 a n d 2005 alleg ing that male deputies had eng ag ed in unlawful sex ual misconduct with female inmates.

1 Sh erif f Hen n essey

n o lo n g er h o ld s th i s o f

f ice.A

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W ith this concern for inmate safety in mi n d

, t he Sheriff
asserts that he considered three res p o n s es, a part from enacting the Policy

, to the problem of protecti n g f emale inmates f rom sex ual miscondu c t : ( 1 ) i m p l ementing additional screening of male d eputi es to determine whether they were likely to eng ag e in sex ual misconduct w ith female in m a t e s, (2) installing additional s u r veillance cameras to monitor activities in CJ 8’s housing pods, and (3) providing additional training to deputies. However, he claims to have r e jected each of these altern a t i v e s as ineffective or unfeasible, so he proceeded to implement the Policy

.

I n J uly 2007, 35 d eputies – a majority of w hom were female

– filed suit ag a inst the County
, alleg ing that the p olicy constituted sex discrimination in violation of Title VI I of the Civil Rig hts Act of 1964 ( “Title VI I ”), 42 U.S.C. § 2000e2(a), and the California F air Emp l o y ment and Housing A ct (“F EHA”), Cal. Gov. Code § 12940. Title VI I a n d FE H A both make it “unlawful, with narrow ex cept i o n s , ‘to f ail o r refuse to hire

. . . any individual, or otherwise to d iscriminate
ag ainst any individual with respect to his compensation, terms, conditions, or privileg es of e mploy ment, because o f such individual’s

. . . sex .’” Breiner
, 6 10 F .3d at 1207 (quoting 42 U.S.C. § 2000e-2(a)(1)). 2 Plaintiffs claimed that the Policy directly caused them a variety of harms related to the conditions of their employ ment. F or e x ample, they claimed that staffing restrictions c aused by the Policy resulted in l o ss o f control over when overtime was available o r required, loss of opportunities to develop career-enhancing

ex p erience, and loss of p referred shif t s a n d reg ular day s off

2 B e c au se FEHA is in terp reted co n sisten tly w ith T itle V II, see G u z v

. Bech tel Na t’l In c

. , 8 P

. 3 d 1 0 89 (Cal. 2 0 0 0 ), w e co n d u ct o u r an aly sis of b o th f ed eral an d state claim s acco rd i n g to T itle VII case law

.A

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previously earned b y seniority

. Plai n t i f fs made additional claims based on their sex discrimination claims: for unlawful employ ment restrictions under Title V I I and F EH A a n d for failure to prevent a violation of F EHA.

I n response, the County first arg ued that an y h arm suffered by plaintiffs as a result o f the Policy was ex ceeding ly minor, or de minimis
, and so was not actionable. Althoug h it did not dispute that the Policy discriminates ag ainst deputies

o n t h e basis of sex , the County further arg ued that t h e discrimination that resulted from the Policy was permissible under the “bona fide occupational q ualification” (“B F OQ”)

ex c e ption to T itle VI I a n d F EHA. See 42 U.S.C. § 2000e2(e)(1) (“[ I ]t shall not b e

. . . unlawful

. . . for an employ er to hire and employ employ ees

. . . on the basis of

. . . sex . . . in th o s e certain instances where

. . . sex

. . . is a bona fide occupat ional qualification r easonably necessary to the normal operation of that particular business or enterprise.”). W here
courts h ave permitted sex -based staffin g r e strictions in corrections facilities, it has ty pically been because the courts concluded that sex was a B F OQ for the staff p o s itions at issue. See, e.g. , Robino , 145 F .3d at 1111; Everson v. Mich. Dep’t of Corr. , 391 F .3d 737, 761 (6th Cir. 2004).

B o th parties moved for summary judg ment, and the district cou r t ruled that the County was entitled to summary judg ment on plaintiffs’ discrimination claims because it had made out a valid B F OQ d efense. S e e Ambat v. City of S

.F.
, 693 F

. Supp. 2 d 1 1 3 0, 1141 (N.D. Cal. 2010) (“ Ambat I ”). The district court “emphasiz [ ed] that [ it] is not charg ed with determining whether the Policy was the b e s t means o f addressing the problems the Sheriff and Undersherif f [ J an De m p sey ] were seeking to remedy

. Rather, the [district court’s] t ask is limited to determining w hether the Sheriff’sA

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actions were lawful.” I

d

. at 1138-39. The district court also
g ranted summary judg ment to the County on plaintiffs’ Title VI I and F EHA claims that w ere derivative of their di s crimination claims. Id. at 1 142. B ecause it had g ranted the County ’s motion, the d istrict court denied plaint i f f s’ motion for summary judg ment on these claims. Id. a t 1141.

II. Title VII Claim

W e review de novo the district court’s g rant of summary judg ment to the County and denial of summary judg ment to plaintiffs on their employ

ment d iscriminat i o n claims. G uatay Christian Fellowship v. Cnty. of S an Diego
, 6 70 F

. 3d 957, 970 (9th Cir. 2011). “I n d oing s o we are g overned by the

same principles as the dist r i c t court: whether, with the evidence viewed in the lig ht most favorabl e t o the non-moving party , there are no g enui n e i ssues of material f a c t , so that the moving party is entitled to a judg ment a s a matter of law.” San D iego Police Offic e r s ’ Ass’n v. San Diego City Emp. Ret. Sys.
, 568 F .3d 7 25, 733 (9th Cir. 2 009) (citing Olsen v. I

daho State Bd. of Med.

, 363 F .3d 916, 922 (9th Cir. 2004)).

W e reverse the d istric t c ourt’s g rant of summary j u d g ment to the County on plaintiffs’ sex discrimination claims and derivative c laims. The County was not entitled to summary judg ment because it was u nable to bear i t s b urden of demonstrating that there was no g enuine issue o f material fact as to whether it w as entitled to a B F OQ defense. B ecause the district c o u rt’s c onclusion that the County was entitled to a B F OQ defense was also the basis for its d enial o f plaintiffs’ motion for summary judg ment, we also vacate the district court’s denial of plaintiffs’ motion.A

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A. De Minim is Harm

B e cause the district court concluded that the County was entitled to a B F OQ defense, it d id not rule on whether the County was entitled to a de minimi s h a r m defense. W e decline to rule on this defense in the first instance.

B. Bona F ide Occupational Qualif ication Def

ense

Althoug h T itle VI I prohibits employ ment discrimination

on the basis o f sex in most instances, it permits discrimination where “sex

. . . is a b ona fide o ccupational q u a l i f i c a tion

r e asonably necessary to the normal operation of [ t h e d e f e ndant’s] particular b usiness or enterprise.” 42 U.S. C

. § 2000e-2(e)(1); see also Cal. G ov. Code § 12940 ( ex cepting discrimination “ based upon a bona f i d e occupational qualifi c a t i o n ” f

r o m p r o h i b i t i o n a g a i n s t employ ment discrimination). F or ex ample, Title VI I would not compel a producer to audition men for a female role in a film, because being female could be a B F OQ for play ing that role. See 29 C.F .R. § 1604.2(a)(2).

Nevertheless, “[ t] he B F OQ defense is written narrowly

, and [ the Supreme Court] has read it narrowly .” Int’l Union, United Auto., Aerospace & Agric. Implement W orkers of Am., UAW v. Johnson Control s , I n c. , 499 U.S. 187, 201 (1991) (citations o mitted). A B F O Q can be established only b y “objective, verifiable requirements [ that] concern job-related skills and aptitudes.” Id. at 201.

W h en the district court g ranted summary judg ment to the County
, it did so on the basis that b eing female was a B F O Q fo r s u pervising female inmates in CJ 8. I n reaching its conclusion, the district court g ranted considerable deferenceA

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to the judg ment of t h e S h e riff, who had asserted that the Policy was n ecessary to protect the safety of female inmates, the security of the jails, the p rivacy of fe m a l e inmates, a nd th e a b ility o f female inmates to b e rehabilitated. Ambat I
, 6 9 3 F. Supp. 2 d at 1135. B ecause protecting these intere s t s

was part of the normal operation of San F rancisco’s jails, a nd because the Sheriff had de t e r m i n ed that it was reasonably

necess ary to keep men o ut of supervisory roles in f emale housing pods in order to prot ect these interests, the district
court r easoned that the County had p roven that being f emale

was indeed a B F OQ under these l i m ited circumstances. Id

. at 1141.

Soon after the di s t r i c t court g ranted summary judg ment,

we c onsidered a similar Title VI I claim in Breiner . At issue there was a policy implemen t e d b y the Nevada Department of Corrections (“NDOC”) that proh i b i t ed men from serving as correctional lieutenants in a women’s prison. 610 F .3d at 1205. The policy was implemented in the wake of a scandal arising f rom the prison’s “uninhibited s e x u al environment,” which had resulted in a female inmate’s becoming p reg nant. Id

. at 1204–05. The NDOC justified its policy on three bases: “(1) male correctional lieutenants are likely to co n d o ne

sex ual abuse by their male subordinates; (2) male correctional lieutenants are themselves likely t o sex ually abuse f emale inmates; and (3) fema l e correctional lieutenants possess an ‘instinct’ that renders them less susceptible to manipulation by inm at es and therefore better e quipped to fill the correctional lieutenant role.” Id

. at 1211. W e reversed the district court’s g rant of summary judg ment to NDOC because

NDOC ha[ d] not met its burden of showing “a basis in fact” for concluding that a l l m ale correctional lieutenants w ould tolerate sex ualA

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abuse b y their subord inates; that all men in
t he c orrectional lieutenant role wou l d themselves sex ually a

buse inmates; or that
women, by virt ue o f their g ender, can better und erstand the behavior of female inmates. Nor ha[ d] it refuted the viability o f alternatives that would achieve that g oal

w i t h o u t i m p e d i n g m a l e e m p l o y e e s ’ promotional opportunities.

Id. at 1216 (quoting Dothard v. Rawlinson

, 433 U.S. 321, 335 (1977)).

I n reaching our decision, we employ ed a two-prong ed test for whether an employ er had met its burden o f p r oving that

sex was a B F O Q:

To justify d i s c rimination u n der the B F O Q

e x c eption, an employ er must “prove by a preponderance of the evidence: 1) that the job qualification justify ing the discrimination is reasonably necessary to th e e s sence of its busin ess; and 2) that [ sex ] is a leg itimate
prox y for the qualification b ecause (a) it has a substantial basis f

o r b elieving that all o r nearly all [ men] lack the quali f i c ation, or

. . . (b) it is impossible or hig h ly impractical

. . . to insure b y individual testing that its employ ees will have the necessary qualifications for the job.”A

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Id

. at 1210 ( alterations in orig inal) (quoting EEOC v. Boeing Co.
, 843 F .2d 1213, 1214 (9th Cir. 1988)). 3

After “ surve y ing

. . . decisions apply ing the B F O Q

ex c e ption in the prison contex t,” we observed that “even in the unique c ontex t of prison e mp l oy ment, administrators seeking to justify a B F OQ must show ‘ a h ig h correlation between sex and a b i l i ty to perform job functions.’” Id. at 1211–13 ( q u o ting Johnson Controls

, 499 U.S. at 202). W e also r ecog niz ed that it would be impossible to prove a B F O Q de fe n s e without “demonstrat[ ing ] that

. . . a lternative approaches . . . are not viable.” Id . at 1215.

I n lig h t o f our decision in Brein er , plaintiffs moved for reconsideration of the dist r i ct court’s summary judg ment ruling s on their sex discrimination claims. T he district court denied the motion, c oncluding tha t B reiner was f actually disting uishable from this case a nd so di d n o t c ompel a different result. Ambat v. City of S.F.

, 2010 W L 3340549 at *3 (N.D. Cal. Aug

. 25, 2010) (“ A mbat II ”). Alt h o u gh we ag ree that the facts in these two cases a r e n o t identical, we conclude that Breiner controls our decision here and provides the correct analy

tic framework for e v a luating the County ’s motion for summary judg ment. However, before we consider the justifications for the Policy that the County has advanced under our two-step B F OQ inquiry , we must f irst address the issue o f the deference owed to the Sheriff’s judg ment in implementing the Policy

.

3 W e i n itially ad o p ted th is test f o r th e pu rp o se o f ev alu at in g sex d iscrim in atio n cl a i m s u n d er T i tle VII in 1 9 8 0

. S ee Ha rriss v. Pa n Am. W o rld Airwa ys, In c. , 6 4 9 F.2 d 6 7 0 , 6 7 6 (9 th Cir. 1 9 8 0 ).A

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1. Def erence to the Sherif

f ’s Judgm ent

“J udg ments b y prison administrators that ‘are the product of a r easoned decision- m a k i ng process, based o n available information and ex perience,’ are entitled to some deference.” Breiner
, 610 F .3d at 1 2 1 2 n .6 (quoting Robino

, 145 F

. 3d at 1110); see also Henry v. Milwaukee Cn t y

. , 539 F .3d 573, 580–81 (7th Cir. 2008) (“[ T] he administrat o r s of f emale correctional facilities

. . . are entitled to substantial deference when fashioning policies to f urther the g o als of the facility

. . . [ H] owever,

. . . the discretion accorded to these i ndividuals

. . . is [ n ot] effectively unlimited. A d e fendant ultimately
must introduce sufficient evidence to prove that t he administrato r ’ s judg ment

. . . is ‘ the p roduct of a reasoned decision-making process, based on available information a nd

ex p erience.’” ( quoting Torres v. W isconsin D ep’t of Health & Soc. Servs. , 859 F

. 2d 1523, 1532 (7th Cir. 1988))).

Deference often play s a sig n ificant rol e i n supporting a BF OQ defense in the corrections contex t, and we d o not downplay the importance of r especting th e judg ment of the officials who a r e most knowledg eable about how best to address the challeng es posed by a particular institution. Nevertheless, such deference is not automatic. W e require that suc h a j u d g ment be the r esult of a “reasoned decision-making process, based on available information a nd

ex p erience,” Breiner
, 610 F .3d at 1214; otherwise, deference to that judg ment cannot play a role in our B F OQ inquiry

.
Here, the record demonstrate s that there are g enuine issues of material fact as to w hether o r not such a process led
to the Sheriff’s adoption of the Policy

. I n support of SF SD’s decision-making process, the Sheriff asserts that h e d iscussed the Policy with Undersheriff Dempsey
, the Ch i e f o f theA

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Custody Di v ision, and jail c ommanders for “months.” He also claims to have consulted “incident reports of misconduct

or alleg ed misconduct.” However, while the prevention o f

sex ual misconduct was offered by the Sheriff as his primary

r e a s o n for adopting the Policy

, SF SD did n ot conduct a n y internal survey s or st u d i es to determine the ex tent of that misconduct. Neither the S h e r iff nor U ndersheriff Dempsey attempted to consult the deputies directly respons i b le for supervising the inmates in order to learn from their front-line

ex p erience

. Fu r t her, the Sheriff testified that he did not consult any outside sources – not even his coun t er p arts in other jurisdictions who may h ave considered similar policies

– with the ex c eption that the Undersheriff co m m u n i cated to him that she had c o n t a ct ed an uncertain number of other California sheriff’s d epartments to ask about whether they had implemented similar policies. The Sheriff also testified that he had read about incidents of sex ual abuse in the Michig an prison sy stem, but that h e did not do so until a fter the Policy was implemented and that his reading “reinforced” rather than informed his decision to implement the Policy

. Determining whether a corrections o fficia l is e ntitled to deference is a fact-intensive and case-specific inq u i r y ; according ly

, it is g enerally within the discretion o f the district
court to determin e w h i ch factors are relevant. The district court observed that it had “ uncovered no case holding that a correctional official must undertake a particular ty pe of study

or consultation,” Ambat I

, 693 F

. Supp. 2d at 1138 (emphasis i n orig inal), and we are not arriving at a contrary holdi n g. That is to say , we are not concluding that the decision-making
process supporting a discriminatory policy needs to take any particular form. However, it is sig nificant that the e x t e n t o f the Sheriff’s efforts to ensure that his judg ment was the result

o f available information and ex p erience contrasts sha r p l yA

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with the efforts undertaken by other o f f icials implementing similar poli c i es that have w ithstood Title VI I challeng es on B F OQ g rounds. Se e , e.g. , R o bino

, 145 F .3d at 1111 (“To comply with an EEOC se t tlement, [ corrections officials] conducted an ex tensive survey of post duties before d e t e r m i n i n g which posts should be d esig nated female- o n l y

. ” ) ; Everson
, 391 F .3d at 741–4 5 (describing how three studies

were c onducted, including one pursuant to a settlement with the DOJ ); cf. Torres
, 859 F .2d at 1531–32 (hold i n g t h at prison officials were r equired to “innovate” in order to serve the reh ab i litative interests o f the female inmates, because empirical studies c oncerning the rehabilitation of f emale inmates “simply

did not ex ist” at the time).

The d istrict court appears to have g ranted the Sheriff’s judg ment deference based primarily on his substantial qualifications, rather than on the c h a racteristics of the decision-making process itself. This re a s oning is not consistent with our precedent, which conditions deference on whether the decision-making process itself was reasoned a nd well-informed. See Breiner
, 610 F .3d at 1214; Robino

, 145 F .3d at 1110. W hile w e n eed not deci d e p r e c i s ely h ow “reason ed” the decision-making process must b e, nor h ow much of the “a v a i l a ble information and ex perience” a

c orrections official must consider before implementing a faci a l l y discriminatory policy

, the record before u s n ow clearly e x hibits a g enuine disp u t e o ver whether the Policy resulted from a “reasoned d ecision-making process, b ased on available information and ex perience.” Breiner
, 610 F .3d at 1214 (quoting Robino

, 145 F

. 3d a t 1110). Conside r i n g t h e

e vidence in the record in the lig ht most favorable t o t h e plaintiffs, as we must o n the County ’s motion for s u m m ary j udg ment, a trier of fact could conclude that the Sheriff’s judg ment was n ot preceded by a decision-making process thatA

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was sufficiently

reasoned in proportion to the seriousness of imposing the Policy

. Similarly

, a t ri e r of fact could also conclude that the seriousness of imposing the Policy r equired th e S h eriff to make a g reater effort to avail himself of the information and ex perience readily available to him – such a s by conducting relevant s u r vey s or studies, as in Robino a nd Everson
, o r by consulting with officials in other jurisdictions who had considered or implemented policies like the one he ultimately

implemented, as plaintiffs sug g est.

Thus, because a trier of fact c o n s i dering the evidence in the lig ht most favorable to plaintiffs could conclude that the decision-making process was either i n s ufficiently reasoned o r insufficiently based on available information and e x perience, the County c annot m eet its burden of showing that the Sheriff’s judg ment is entitled to deference as a matter of law, and the County may not rely o n such deference in meeting its burden of showing that there are no g enuine disputes of fact as to whether it can satisfy our two-step B F OQ inquiry

.

2. J o b Q u a l i fi c a t i ons Reasonably Necessar y t o t h e Essence of

Operating San F rancisco’s Jails

Althoug h d eference to the Sheriff’s judg ment cannot play

a role in o u r a naly sis, it is still necessary for us to consider each rationale that has been o ffered by the County in order to determi n e whether the County is able to satisfy our B F O Q inquiry based solely o n the evidence in the record. W e must consider each of the four rationales offered by the County in order to d e t e r m ine (1) whether any rationale sug g ests a job qualification r easonably necessary to the essence of operating SF SD’s jails, and, if so, ( 2 ) whether sex is a leg itimate prox y f o r determining whether a deputy actually has t h at qualification. Breiner , 610 F

. 3d at 1210.A

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I n considering each of the County ’s rationales, the County easily meets its burden, as a matter of law, of demonstrating that there are jo b q u alifications derived from the four justificatio n s that are reasonably necessary to the essence o f operating SF SD’s jails. Each o f t he four justifications that the Sheriff claims drove his decision to implement the Policy

– protecting female inmates from sex ual misconduct by male deputies, maintaining jail security

, protecting inmate privacy

, and preserving

the ability of female inmates to rehabilitate

– is e ssential to the operation o f a corrections f ac i lity and has been recog niz ed as justify ing facially discriminatory policies in other contex ts. S

e e D o t h a r d

, 4 33 U.S. at 335 ( security ); Robino

, 145 F .3d at 1111 (safety

, security

, privacy

, rehabilitati o n ) ; Everson
, 3 91 F .3d a t 750 (safety

, security

, privacy , rehabilitation).

B a sed on these important rational e s f o r the Policy

, we have no difficulty in identify ing f our “job qualification[ s]

. . . reasonably necessary to the e ssence of” o perating SF SD’s jails, a ny of which would satisfy the first prong of o u r t e s t. Breiner
, 610 F. 3 d at 1210. These qualifications corresponding to the four rationales are (1) not posing a threat
to the safety of f

ema l e i nmates due to a likelihood o f perpetrating sex ual misconduct a g ainst them; (2) n o t posing

a threat to jail security ; (3) not posing a threat to f emale inmates’ privacy ; and ( 4 ) n o t posing a threat to f emale inmates’ ability to rehabilitat e

. W e now consider each o f these four qualifications under the second prong of our test to determine whether there is a n y g e nuine dispute of material fact as to whether b eing male is a “leg itimate prox y ” for any of them.A

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3. W h e t her Sex Is a Legitim ate P roxy f or Reasonably Necessary Job Qualif ications

The County may show that ex cluding all male d eputies is a “leg itimate prox y ” for ex cluding deputies who lack one of
t h e f o u r qualifications if there is (a) “a substantial b asis for believing that all or nearly all [ men] lack the qualification” o r (b) “it is impossible or hig hly imprac t i c a l

. . . to insure b y individua l testing ” whether or not a male deputy h as the qualification. Id. a t 1210 (alteration in orig inal). W e also
note that it is impossible t o satisfy the “leg itimate prox y ”
prong if there is no “ c o n c r e t e, log ical basis for concluding that g ender restr i ct i ons are ‘reasonably necessary , ’” id. at 1212, o r if a lternatives have not been reasonably considered and refuted, id. at 1216.

The Cou n t y a sserts that the p rimary reason f o r the S h eriff’s adoption of the Policy was to protect the safety of female inmates by reducing the possibility of sex ual harassment and abuse by male d eputies. While there is no question that this is a

n ex tremely im p ortant interest, the County has n o t met its burden of showing t h at there is no g enuine dispute over whether ex clu d i n g men from supervisory p ositions in female housing units is a leg itimate
prox y for r equiring that deputies in those positions not pose

a threat to the safety of f

emale inmates. More specifically

, at this stag e o f the p r oceeding

, the County has not shown that the Sheriff had “a substantial basis for bel ieving that all o r nearly all” male deputies were likely to eng a g e i n sex ual misconduct with female inmates, nor h as it shown that “it is impossible or high ly impractical

. . . to insure by individual testing ” that a male deputy does not pose such a threat. Id. at 1210.A

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The sta t i s t ics o n sex ual misconduct perpetrated by male d e p u t ies ag ainst female inmates in SF SD’s jails are deep l y troubling

. The record shows that in the five y ears preceding the implementation of the Po l icy

, ten alleg a tions o f sex ual misconduct were made; two more alleg ations were made the
y ear a fter the Policy was implemented. A substantial portion of these alleg a tions were sustained or were followed by a deputy ’s r esig nation. W e also accept that it is reasonable to
assume, as the County arg ues, that other instances o f misconduct may

have g one unreported.

Nevertheless, these statistics by themselves do not prove t h at “all or substantially all” male deputies are likely to perpetrate sex ual misconduct. To sug g est th a t a l l or most male deputies pose such a threat would amou n t to “ the kind of unproven and invidious stereoty pe that Cong ress soug ht to eliminate from employ

ment decisions w h e n it enacted Title VI I .” Breiner , 610 F .3d at 1211.

O n t h i s record, the County is also unable to show that there is no g enuine dispute as to w hether it is impossible o r hig hly impractical to insure by individual testing that a male deputy does not have a p r opensity to perpetrate sex ual misconduct. W e have observed that backg round ch ecks, which all deputies must und erg o, are among “ prison administrators[ ’]

. . . multiple re s o u r c es

. . . to ensure compliance with institutional rules.” Breiner
, 610 F

. 3d at 1215. As the County points out, p eace officer c a n d i d ates must also underg o psy cholog ical ex a minations.

W h ile conceding that backg round checks a nd
psy c h o l og ical testing are u sed for the purpose o f screening for a propensity to perpetrate sex ual misconduct, the County
sug g ests that such screening mechanisms are i nadequateA

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because they are unable to d etect all potential perpetrators. Removing every deputy with any potential for e n g a ging in misconduct may b e a l a u d able g oal, but that g oal is insufficient to justify a policy that discriminates in such broad
str o k e s

. Rather, w e h ave observed that a B F OQ defense
cannot be maintained if a v a i lable testing offers “a practical reliable differentiation of the unqualified fro m the qualified applic an t, [ even if it is] not a perfect differentiation.” See E.E.O.C. v. L.A. Cnty.
, 706 F .2d 1039, 1040, 1043 (9th Cir. 1983) ( int e rn al citation and quotation marks omitted). The record before us does not resolve the g enuine d i s p u te over whether the tests that are presently used or that could b e used b y SF SD would p ermit it to make a practical relia b l e differentiation between those who a r e likely to eng ag e in

sex ual misconduct and those who are not.

The County also arg ues that employ ing male deputies in the female housing

pods poses a threat to jail security

. I n so arg uing

, it points to two specific assertions offered by the Sheriff. F irst, the Sheriff ex pressed con c er n that male deputies were particularly vulnerable to mani p u l ation b y female inmates, potentially leading them to overlook conduct in v iolation of jail reg ulations, such a s smug g ling contraband into the jail. Second, he claimed t h at the consequence o f male deputies’ fear of being accused of sex u a l misconduct could b e that those deputies w ould be unwilling to supervise female inmates as closely as ne c e s sary , leading to an even g reater r isk o f female inmates b eing able to violate jail r u les.

However, the record on summary judg ment is insufficient
to d emonstrate that there is no g e nu ine dispute as to whether “all or substantially all” male deputies w o uld be v ulnerable
to manipulation by female inmates or as to whether it would b e “impossible o r hig hly impractical” to test for whethe r aA

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male deputy is manip ulable. The County has introduced no

e v i d ence, even in the declarations of SF SD officials, th at would support this c onclusion. L ikewise, the C o u n t y has failed to d emonstrate that t h e r e is no g enuine dispute over whether “all or substant i a l l y all” male deputies would be influenced by fear of f

a lse alleg a tions, or over whether it would be “impossible or hig hly impractical” to test for such behavior. The Sheriff h imself acknowledg ed that he has “ no idea” how w i d espread this purported problem is. He also admitted that he is unaware of whether any e fforts were made within SF SD to ex plore non-discriminatory alterna tives to the Policy for the purpose o f mitig ating the potential effect o f false a lleg ations l ev e l e d at male deputies. Thus there is a g enuine question as to whether the County is able to “refute[ ] the viability of [ non-discriminatory ] alternatives.” Breiner
, 610 F .3d at 1216.

The County ’s third jus t ification for the Policy is protecting the privacy interests of female inmates. However, the record does not demonstrate that there is an actual risk o f female inmates’ privacy being compromi sed by male deputies. SF SD h as policies in place to p r event male deputies from taking on duties, such as strip searc h e s , t h at mig ht violate the privacy of female inmates. The inmates a re required to remain clothed at all times, ex c ept when show e ri n g. When showering o r using the toilet, inmates’ bodies are covered by

a privacy screen.

The Sheriff claims that the use of privacy screens compromises jail security

, but there is a g enuine dispute as to whether privacy screens a c tually do compromise jail security where, a s here, the screen s r emained in use even after the Policy was adopted. S

e e T o r r e s , 859 F .2d at 1526 (finding that a BFO Q defense could not be sustained over privacyA

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concerns where “t h e [ d istrict] court noted that [ corrections officials] continued to allow [ f emale] inmates to use privacy cards even after the B F OQ prog ram [ requiring female g uards] h ad b e en installed, thus rebutting the arg ument th a t t h e presence of male g u ards red u ce d observation of the inmates”).

The County ’s final jus tification for the Policy is promoting the rehabilitation of female inmates. T he Sheriff
asserts that h e was c oncerned that surveillance by m a l e deputies could traumatiz e f emale inmates, particularly those who h ad suffered phy sical o r sex ual abuse in the past. The County introduced evidence that a d isproportionately hig h number of female inmates had suffered such abuse. Nevertheless, there is a g enuine dispute over whether

ex c luding male deputies is a leg itimate prox y for e x c l uding deputies who would i n t e r fere with female inmates’ rehabilitation.

A “ staffing restriction

. . . must match

. . . ‘job functions’ with a hig h deg ree of specificity to b e found reasonably
necessary .” Breiner
, 610 F .3d at 1213 (quoting Johnson C o n trols

, 499 U.S. at 202). I n this situation, SF S D h a s separated the functions of supervising the i n mates in the housing p o ds f

rom the fu n c t i o ns o f providing rehabilitative
prog r amming to the inmates, such as throug h a h ig h school
prog r am, support g roups, and parenting c lasses

. F urther, there is no evidence in the record that the individuals staffing the rehabilitative prog rams, some o f which are s t a ffed b y independent cont r a c tors, are themselves required to be female. I f female inmates w e r e s u pervised by men in their rehabilitative prog rams w hile the Policy w a s in e ffect, that fact alone would defeat the County ’s arg ument that ex cluding

men from supervisory r oles w as n ecessary to promote f emaleA

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inmates ’ r ehabilitation. S ee Henry
, 539 F .3d at 582-83 (“[ I ]nconsistencies in implementation cast a sig nificant doubt

on whether the p o l i cy is reasonably necessary .”). A s plaintiffs observe, there is also conflicting ex pert testimony

over whether isolating female inmates from men mig ht in fact impede the inmates’ ef

f orts at r ehabilitation; for ex ample, plaintiffs’ ex pert discuss e d r esearch indicating that the
presence of male offic e rs mig ht itself promote the rehabilitation of female inmates.

C. Conclusion

The justifications offered by the County in support of the Policy each speak to ex tremely important con c e r n s, a nd the Sheriff is to be commended f or his attention to the welfare o f female inmates in San F rancisco’s jails. However, t h e f a ct that the Policy seeks to a dvance s u ch important g oals a s inmate safety is not, by itself, sufficient t o p ermit discriminat i o n on the basis of sex

. W hen moving for
summary judg ment, the County bears the heavy burden o f showing that there are no g enuine issues of material fact as to whether ex cluding male deputies because o f t h e i r sex is a leg itimate substitute for ex cluding them b ecause they a re actually unfit to serve in t he female h ousing p ods. On the record before us, the County has not made such a showing

.

Discrimination on the bas i s of sex is almost alway s disfavored under T itle VI I

. Thus, even in a c o rr e c t ional setting

, our test for whether a n employ er is entitled to a B F OQ defense – that is, whether an e mploy er has shown that discrimination is “reasonably necessary , ” 42 U.S.C. § 2000e2(e)(1) – is purposefully difficult to satisfy

. I t is e ven more difficult when an employ e r moves f or summary judg ment a

nd

so must show that there are no g enuine disputes that wouldA

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prevent it from satisfy ing our two-step inquiry as a matter o f law. While we do not reach the issue of whether the County could u ltimately prevail o n plaintiffs’ discrimination claims, the factual disputes in this case prevent the County from prevailing at this stag e.

W e are mindful that deference often p l a y s a sig nificant role in allowing a defendant to meet its burden of proving that it is entitled to a B F O Q defense in t h e corrections contex t, and we do not downplay the im p o r t a n ce of courts deferring
to the judg ment of o fficials like the Sheriff

, who has tremend o u s ex perience and ex pertise with respect to all aspects of operating San F rancisco’ s j a i l s

. B ut, ag ain, such deference is not automatic, n o matter how ex tensive an official’s qualifications. A discrim i n a t o r y e m p l o y m ent p olicy is an ex traordinary response to a workplace problem, and our principle of d eferring to the judg ments of corrections officials has its roots in the ex pectation that o f f i cials have made
commensurate efforts to determine that a d iscriminatory policy is a necessary response and the onl y v i ab le response. Thus, while we don’t presume to be able to second-g uess an official’s judg ment, w e do require t h a t such a judg ment be “‘the product of a reasoned decisio n

- making process, based

on available information and ex perience.’” Breiner
, 6 10 F .3d at 1212 n.6 (quoting Robino , 145 F .3d at 1110).

W e need not and do not reach a conclusion about whether the Sherif

f ’s judg ment was the result of such a reasoned
process. However, on the r ecord before us, we cannot find a s matter of law that the Policy resulted from such a process. Therefore, o n summary judg ment, the County may not rely

on d e ference to the Sheriff’s judg ment in order to meet its burden of proving that it was e ntitled to a B F OQ defense. I n the abs e n c e of deference to the Sheriff’s judg ment, theA

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County is a lso unable to meet its burden of proving that there is no issue of material f a c t as to whether i t s p o licy o f

ex c luding all male deputies from the female housing units is

a leg itimate prox y f

or ex c luding only those deputies that truly
pose a threat to the important interests SF SD rig htfully seeks
to p rotect. The district court’s g rant o f summary judg ment a s to plaintiffs’ sex d iscrim i nation claims and other c laims predicated thereon is REVERSED

.

B e cause the district court d e nied p laintiffs’ summary ju d gm e n t motion on the same g rounds that it g r anted the County ’s m otion, the district court’s denial of summary judg ment to p l aintiffs o n these same claims is VACATED

. This case is R E MA N DED f or further proceeding s o n these claims.

III. Evidentiary Claim s

P rior to the district court’s r uling on the parties’ crossmotions for summary judg ment on plaintiffs’ discrimination claims, plaintiffs made numerous objections to evidence offered by the County in support of its motion – particularly
to declarations submitted by SF SD o f fi cials. The district
court overruled th re e o f the objections; it did not ex plicitly rule on the remainder of the objections but r e l i e d on the challeng ed evidence in its summary judg men t o rder. Plaintiffs challeng e the district court’s ex plici t and implicit evidentiary

ruling s in the County ’ s favor.

“W e review the district court’s evidentiary decis i o ns for abuse o f d iscretion, and the appellant is

. . . required to establish that the error was prejudicial.” Allstate Ins. Co. v

. Herron
, 634 F

. 3 d 1 101
, 1110 (9th Cir. 2011) (internal quotation marks omitted). B ecause we reverse the districtA

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court’s g rant of s ummary judg ment on plaintiffs’ discrimination claims, plaintiffs cannot establish prejudice; plaintiffs will have t h e opportunity to c halleng e the district court’s e videntiary ru l i n gs if they are unsuccessful on remand. Plaintiffs’ evidentiary challeng es are DISMISSED

.

IV. Attorney’s F ees

I n a ddition to their sex discrimination claims, plaintiffs filed various retaliation claims, also u nder Tit le VI I a nd F EHA. The district court g r anted summary judg ment to the County as to all but three plaintiffs, and the County settled the remaining claims. Plaintiffs moved f or a ttorney ’s fees in the
amount of $127,447.26 for having settled these claims. After

an in camera review o f p laintiffs’ counsel’s time sheets, the district court awarded $8,925 for “retaliation-specific work,” observing that plaintiffs could not recov e r “ f ees for time devoted to litig ating the g ender dis c r i mination claims.” Plaintiffs contend on a

ppeal that the fee award i s not commensurate with the ex tent of their success.

“[ I ] n a lawsui t where the plaintiff presents different claims for relief that ‘involve a common core of facts’ or a re based on ‘related leg al theories,’ the district c ourt should not attempt to divide the r equest for a t t o r n ey ’s fees on a

c l aim-by -claim basis. I nstead, the c ourt must

. . . ‘focus on the sig n ificance of the overall r elief obtained by the plaintiff in relation to the hours reasonably ex pended on the litig ation.’” McCown v. City of Fontana
, 565 F .3d 1097, 1103 (9th Cir. 2008) (quoting Hensley v. Eckerhart

, 461 U.S. 424
, 4 3 5 (1983)). I n sum, “the district court should adequately ex p lain the reasonable number of hours a nd hourly r ate it us e s in calculating the fee, a nd appropriately adjust the award to account for [ a plaintiff’s] limited successA

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on claims and damag e s , a n d f or any public benefit derived from his suit.” Id . at 1105.

The district court conc luded that p laintiffs’ success was minor relative to the scope of t h e sex discrimination action,

a nd it awarded fees according ly

. Reviewing for abuse of discretion, Hemmings v. Tidyman’s Inc.
, 285 F

. 3d 1174, 1200 (9th Cir. 2002), we see no indication that the district court abused its discretion in making the a ward that it did. Under the district court’s own reasoning

, plaintiffs w i l l be entitled
to a substantially g reater award if they are successful on remand. The district court’s aw a rd of attorney ’s fees is AF F IRMED

.

V. G ray’s Retaliation Claim s

J ohn Gray was a m o n g the p laintiffs who claimed retaliation and ag ainst whom the dist r i ct court g ranted
summary judg ment; the district court was c orrect in its judg ment. Gray disseminated d e f amatory st a t e m ents about several i n d ividuals, amounting to what the SF SD deemed “[ c] onduct, on or off duty

, which re flects adversely on the SF SD.” As a result, h e w as termina t e d

. G r a y is unable to rebut the County ’s evidence that h is conduc t w a s the nonretaliatory motiv e for his termination, Munoz v. Mabus

, 630 F .3d 856, 865 (9th Cir. 2010), nor can he “produce direct

o r c i r c u m s t a n t i a l e v i d e n c e d e m o n s t r a t i n g t h a t a discriminatory reason more likely than not moti v a t ed” the County
, McGinest v. GTE Serv. Corp. , 360 F .3d 1103, 1122 (9th Cir. 2004). F urther, his arg ument that his defamatory statements, because they were made in connection with an earlier employ

ment-related arbitration, are protected b y California law from being used as evi d ence in this action is without merit. See Oren R oyal Oaks Venture v. Greenb e rg,A

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Bernhard, W

e iss & Karma, I

nc. , 728 P.2d 1 2 02, 1208 (Cal. 1986). T he district court’s g rant of summary judg ment to the County on Gray ’s retaliation claims is AF F IRMED

.

A F F IRMED in part, REVERSED in part, VACATED in part, DISMISSED in pa r t , a nd REMANDED for f urther proceeding s. Each party

shall bear its own costs.