FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MERCY AMBAT,

Plaintiff,

and

ZAINABU ANDERSON; SHARON

CASTILLO; JOANNA CROTTY; PATTI

FLYNN; TERESA FOX; LISA JANSSEN;

RICHARD LEE; GLORIA MARTIN;

ANTHONY PEPPERS; MATTIE SPIRESMORGAN; YVETTE WILLIAMS;

ROLAND ZANIE; PAMELA WALKER;

GWENDOLYN HARVEY-NOTO;

JENNIFER KEETON; OLGA KINCADE;

EMIKO THEODORIDIS; MARTHA

ORTEGA,

Plaintiffs-Appellants,

v.

CITY AND COUNTY OF SAN

FRANCISCO,

Defendant-Appellee.

No. 11-16746

D.C. No.

3:07-cv-03622-SI

MERCY AMBAT,

Plaintiff,

and

No. 11-16752

D.C. No.

3:07-cv-03622-SI
2 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

JON GRAY,

Plaintiff-Appellant,

v.

CITY AND COUNTY OF SAN

FRANCISCO,

Defendant-Appellee.

MERCY AMBAT,

Plaintiff,

and

ZAINABU ANDERSON; SHARON

CASTILLO; JOANNA CROTTY; PATTI

FLYNN; TERESA FOX; LISA JANSSEN;

RICHARD LEE; GLORIA MARTIN;

ANTHONY PEPPERS; MATTIE SPIRESMORGAN; YVETTE WILLIAMS;

ROLAND ZANIE; PAMELA WALKER;

GWENDOLYN HARVEY-NOTO;

JENNIFER KEETON; OLGA KINCADE;

EMIKO THEODORIDIS; MARTHA

ORTEGA,

Plaintiffs-Appellants,

v.

CITY AND COUNTY OF SAN

FRANCISCO,

Defendant-Appellee.

No. 11-17330

D.C. No.

3:07-cv-03622-SI

OPINION
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 3

Appeal from the United States District Court

for the Northern District of California

Susan Illston, Senior District Judge, Presiding

Argued and Submitted

December 4, 2013—San Francisco, California

Filed July 2, 2014

Before: Stephen S. Trott, Sidney R. Thomas,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia

SUMMARY*

Employment Discrimination

The panel affirmed in part, reversed in part, and vacated

in part the district court’s judgment in favor of the City and

County of San Francisco, and dismissed plaintiffs’ appeal in

part, in a Title VII case in which deputies of the San

Francisco Sheriff’s Department challenged a policy

prohibitingmale deputies from supervising female inmates in

the housing units of the Sheriff’s Department’s jails.

The panel reversed the district court’s grant of summary

judgment to the County on sex discrimination claims and

derivative claims and vacated the denial of summary

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

judgment to plaintiffs on those claims. The panel held that

the County was unable to bear its burden of demonstrating

that there was no genuine issue of material fact as to whether

it was entitled to a “bona fide occupational qualification”

defense. The panel concluded that there were genuine issues

of material fact as to whether a reasoned decision-making

process, based on available information and experience, led

to the Sheriff’s adoption of the policy, such that it would be

entitled to deference. There were also genuine issues of

material fact as to whether excluding male deputies because

of their sex was a legitimate substitute for excluding them

because they were actually unfit to serve in the female

housing pods.

The panel dismissed plaintiffs’ appeal from various

evidentiary rulings because, in light of the panel’s reversal of

the district court’s grant of summary judgment, plaintiffs

could not establish prejudice.

The panel affirmed the district court’s award of attorney’s

fees as to settled claims.

The panel affirmed the district court’s grant of summary

judgment on one plaintiff’s retaliation claims.

COUNSEL

Lawrence D. Murray (argued) and Robert C. Strickland,

Murray & Associates, San Francisco, California, for

Plaintiffs-Appellants Mercy Ambat, et al.
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 5

Daniel H. Bromberg (argued) and Timothy A. Butler, Quinn

Emanuel Urquhart & Sullivan, LLP, Redwood Shores,

California, for Plaintiff-Appellant John Gray.

Dennis J. Herrera, City Attorney; Elizabeth S. Salveson,

Chief Labor Attorney; and Rafal Ofierski, Deputy City

Attorney (argued), San Francisco, California, for DefendantAppellee.

OPINION

MURGUIA, Circuit Judge:

Plaintiffs, current and former deputies of the San

Francisco Sheriff’s Department (“SFSD”), appeal the district

court’s order granting summary judgment to the City and

County of San Francisco (the “County”) on their challenge to

SFSD’s policy prohibiting male deputies from supervising

female inmates in the housing units of SFSD’s jails. The

district court concluded that SFSD’s policy did not violate

Title VII’s prohibition on sex discrimination because it fell

within the statute’s “bona fide occupational qualification”

exception, 42 U.S.C. § 2000e-2(e)(1). We reverse the district

court’s grant of summary judgment to the County on the sex

discrimination claims and vacate the denial of summary

judgment to plaintiffs on those claims.

I. Facts and Procedural History

In October 2006, SFSD implemented a new policy

prohibitingmale deputies from supervising female inmates in

the housing units of the jails operated by the County (the

“Policy”). Single-sex staffing policies in correctional
6 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

facilities are not new, and we have considered before whether

such polices violate Title VII by impermissibly

discriminating on the basis of sex. See Breiner v. Nevada

Dep’t of Corr., 610 F.3d 1202 (9th Cir. 2010) (holding policy

violated Title VII); Robino v. Iranon, 145 F.3d 1109 (9th Cir.

1998) (per curiam) (holding policy did not violate Title VII).

The adoption of the Policy coincided with SFSD’s plan to

consolidate all of its female inmates within a single facility,

County Jail 8 (“CJ8”). CJ8 has a “direct supervision” design,

meaning that its housing units, or “pods,” are composed of

cells or sleeping bays arrayed around a central congregation

space. Each pod has two tiers and between 56 and 88 beds. 

At the center of the pod is a podium from which a deputy can

see into common areas and into the cells and sleeping bays. 

Each pod is staffed by two deputies, one of whom remains at

the podium while the other makes rounds. Female inmates

fill some, but not all, of the available housing pods in CJ8.

Even though CJ8 is not single-sex, all of its pods are singlesex. This is consistent with SFSD’s long-standing practice of

segregating female and male inmates.

Although housing pods are single-sex, CJ8’s pod for

inmates receiving medical or psychiatric care is not sexsegregated. Male deputies are not permitted under the Policy

to work with female inmates in the housing pods; however,

male deputies may be assigned to the mixed-sex medical pod

or assigned to transport female inmates between CJ8 and

other locations. Male deputies may also enter female housing

pods in some circumstances, such as to assist with feeding

female inmates.
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 7

According to San Francisco Sheriff Michael Hennessey

(the “Sheriff”), who had held his position since 1980,1he

adopted the Policy for four reasons: (1) to protect the safety

of female inmates from sexual misconduct perpetrated by

male deputies, (2) to maintain the security of the jail in the

face of female inmates’ ability to manipulate male deputies

and of the deputies’ fear of false allegations of sexual

misconduct by the inmates, (3) to protect the privacy of

female inmates, and (4) to promote 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

sexual misconduct as the most important. As the County

pointed out, between 2001 and 2009, SFSD investigated

twelve complaints of sexual misconduct or inappropriate

sexual relationships between a male deputy and a female

inmate. Ten of those incidents occurred before the Policy

was implemented in 2006, and two occurred after. Notably,

four of the twelve incidents occurred in 2005, the year

immediately preceding the implementation of the Policy. 

SFSD sustained the allegations of misconduct and disciplined

deputies in two of the incidents: a 2001 incident in which a

male deputy had an inappropriate relationship with a female

inmate with the intent to “cultivate a sexual relationship” and

a 2007 incident, after the Policy had been adopted, in which

a male deputy was present during a female inmate’s strip

search. Three additional investigations were followed by a

deputy’s resignation; these concerned inappropriate contact

or sex acts. SFSD also faced lawsuits in 2000 and 2005

alleging that male deputies had engaged in unlawful sexual

misconduct with female inmates.

 

1

 Sheriff Hennessey no longer holds this office.
8 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

With this concern for inmate safety in mind, the Sheriff

asserts that he considered three responses, apart from

enacting the Policy, to the problem of protecting female

inmates from sexual misconduct:(1)implementing additional

screening of male deputies to determine whether they were

likely to engage in sexual misconduct with female inmates,

(2) installing additional surveillance cameras to monitor

activities in CJ8’s housing pods, and (3) providing additional

training to deputies. However, he claims to have rejected

each of these alternatives as ineffective or unfeasible, so he

proceeded to implement the Policy.

In July 2007, 35 deputies – a majority of whom were

female – filed suit against the County, alleging that the policy

constituted sex discrimination in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e2(a), and the California Fair Employment and Housing Act

(“FEHA”), Cal. Gov. Code § 12940. Title VII and FEHA

both make it “unlawful, with narrow exceptions, ‘to fail or

refuse to hire . . . any individual, or otherwise to discriminate

against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of

such individual’s . . . sex.’” Breiner, 610 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 employment. For example, they

claimed that staffing restrictions caused by the Policy resulted

in loss of control over when overtime was available or

required, loss of opportunities to develop career-enhancing

experience, and loss of preferred shifts and regular days off

2 Because FEHA is interpreted consistently with Title VII, see Guz v.

Bechtel Nat’l Inc., 8 P.3d 1089 (Cal. 2000), we conduct our analysis of

both federal and state claims according to Title VII case law.
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 9

previously earned by seniority. Plaintiffs made additional

claims based on their sex discrimination claims: for unlawful

employment restrictions under Title VII and FEHA and for

failure to prevent a violation of FEHA.

In response, the County first argued that any harm

suffered by plaintiffs as a result ofthe Policywas exceedingly

minor, or de minimis, and so was not actionable. Although it

did not dispute that the Policy discriminates against deputies

on the basis of sex, the County further argued that the

discrimination that resulted from the Policy was permissible

under the “bona fide occupational qualification” (“BFOQ”)

exception to Title VII and FEHA. See 42 U.S.C. § 2000e2(e)(1) (“[I]t shall not be . . . unlawful . . . for an employer to

hire and employ employees . . . on the basis of . . . sex . . . in

those certain instances where . . . sex . . . is a bona fide

occupational qualification reasonablynecessaryto the normal

operation of that particular business or enterprise.”). Where

courts have permitted sex-based staffing restrictions in

corrections facilities, it has typically been because the courts

concluded that sex was a BFOQ for the staff positions 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).

Both parties moved for summary judgment, and the

district court ruled that the County was entitled to summary

judgment on plaintiffs’ discrimination claims because it had

made out a valid BFOQ defense. See Ambat v. City of S.F.,

693 F. Supp. 2d 1130, 1141 (N.D. Cal. 2010) (“Ambat I”). 

The district court “emphasiz[ed] that [it] is not charged with

determining whether the Policy was the best means of

addressing the problems the Sheriff and Undersheriff [Jan

Dempsey] were seeking to remedy. Rather, the [district

court’s] task is limited to determining whether the Sheriff’s
10 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

actions were lawful.” Id. at 1138-39. The district court also

granted summary judgment to the County on plaintiffs’ Title

VII and FEHA claims that were derivative of their

discrimination claims. Id. at 1142. Because it had granted

the County’s motion, the district court denied plaintiffs’

motion for summary judgment on these claims. Id. at 1141.

II. Title VII Claim

We review de novo the district court’s grant of summary

judgment to the County and denial of summary judgment to

plaintiffs on their employment discrimination claims. Guatay

Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957,

970 (9th Cir. 2011). “In doing so we are governed by the

same principles as the district court: whether, with the

evidence viewed in the light most favorable to the

non-moving party, there are no genuine issues of material

fact, so that the moving party is entitled to a judgment as a

matter of law.” San Diego Police Officers’ Ass’n v. San

Diego City Emp. Ret. Sys., 568 F.3d 725, 733 (9th Cir. 2009)

(citing Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922

(9th Cir. 2004)).

We reverse the district court’s grant of summary

judgment to the County on plaintiffs’ sex discrimination

claims and derivative claims. The County was not entitled to

summary judgment because it was unable to bear its burden

of demonstrating that there was no genuine issue of material

fact as to whether it was entitled to a BFOQ defense. 

Because the district court’s conclusion that the County was

entitled to a BFOQ defense was also the basis for its denial of

plaintiffs’ motion for summary judgment, we also vacate the

district court’s denial of plaintiffs’ motion.
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 11

A. De Minimis Harm

Because the district court concluded that the County was

entitled to a BFOQ defense, it did not rule on whether the

County was entitled to a de minimis harm defense. We

decline to rule on this defense in the first instance.

B. Bona Fide Occupational Qualification Defense

Although Title VII prohibits employment discrimination

on the basis of sex in most instances, it permits discrimination

where “sex . . . is a bona fide occupational qualification

reasonably necessary to the normal operation of [the

defendant’s] particular business or enterprise.” 42 U.S.C.

§ 2000e-2(e)(1); see also Cal. Gov. Code § 12940 (excepting

discrimination “based upon a bona fide occupational

qualification” from prohibition against employment

discrimination). For example, Title VII would not compel a

producer to audition men for a female role in a film, because

being female could be a BFOQ for playing that role. See 29

C.F.R. § 1604.2(a)(2).

Nevertheless, “[t]he BFOQ defense is written narrowly,

and [the Supreme Court] has read it narrowly.” Int’l Union,

United Auto., Aerospace &Agric. Implement Workers of Am.,

UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991)

(citations omitted). A BFOQ can be established only by

“objective, verifiable requirements [that] concern job-related

skills and aptitudes.” Id. at 201.

When the district court granted summary judgment to the

County, it did so on the basis that being female was a BFOQ

for supervising female inmates in CJ8. In reaching its

conclusion, the district court granted considerable deference
12 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

to the judgment of the Sheriff, who had asserted that the

Policy was necessary to protect the safety of female inmates,

the security of the jails, the privacy of female inmates, and

the ability of female inmates to be rehabilitated. Ambat I,

693 F. Supp. 2d at 1135. Because protecting these interests

was part of the normal operation of San Francisco’s jails, and

because the Sheriff had determined that it was reasonably

necessary to keep men out of supervisory roles in female

housing pods in order to protect these interests, the district

court reasoned that the County had proven that being female

was indeed a BFOQ under these limited circumstances. Id.

at 1141.

Soon after the district court granted summary judgment,

we considered a similar Title VII claim in Breiner. At issue

there was a policy implemented by the Nevada Department

of Corrections (“NDOC”) that prohibited 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 from the prison’s “uninhibited sexual environment,”

which had resulted in a female inmate’s becoming pregnant. 

Id. at 1204–05. The NDOC justified its policy on three bases:

“(1) male correctional lieutenants are likely to condone

sexual abuse by their male subordinates; (2) male correctional

lieutenants are themselves likely to sexually abuse female

inmates; and (3) female correctional lieutenants possess an

‘instinct’ that renders them less susceptible to manipulation

by inmates and therefore better equipped to fill the

correctional lieutenant role.” Id. at 1211. We reversed the

district court’s grant of summary judgment to NDOC because

NDOC ha[d] not met its burden of showing “a

basis in fact” for concluding that all male

correctional lieutenants would tolerate sexual
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 13

abuse by their subordinates; that all men in

the correctional lieutenant role would

themselves sexually abuse inmates; or that

women, by virtue of their gender, can better

understand the behavior of female inmates.

Nor ha[d] it refuted the viability of

alternatives that would achieve that goal

without impeding male employees’

promotional opportunities.

Id. at 1216 (quoting Dothard v. Rawlinson, 433 U.S. 321, 335

(1977)).

In reaching our decision, we employed a two-pronged test

for whether an employer had met its burden of proving that

sex was a BFOQ:

To justify discrimination under the BFOQ

exception, an employer must “prove by a

preponderance of the evidence: 1) that the job

qualification justifying the discrimination is

reasonably necessary to the essence of its

business; and 2) that [sex] is a legitimate

proxy for the qualification because (a) it has a

substantial basis for believing that all or

nearly all [men] lack the qualification, or . . .

(b) it is impossible or highly impractical . . . to

insure by individual testing that its employees

will have the necessary qualifications for the

job.”
14 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

Id. at 1210 (alterations in original) (quoting EEOC v. Boeing

Co., 843 F.2d 1213, 1214 (9th Cir. 1988)).3

After “surveying . . . decisions applying the BFOQ

exception in the prison context,” we observed that “even in

the unique context of prison employment, administrators

seeking to justify a BFOQ must show ‘a high correlation

between sex and ability to perform job functions.’” Id. at

1211–13 (quoting Johnson Controls, 499 U.S. at 202). We

also recognized that it would be impossible to prove a BFOQ

defense without “demonstrat[ing] that . . . alternative

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

In light of our decision in Breiner, plaintiffs moved for

reconsideration of the district court’s summary judgment

rulings on their sex discrimination claims. The district court

denied the motion, concluding that Breiner was factually

distinguishable from this case and so did not compel a

different result. Ambat v. City of S.F., 2010 WL 3340549 at

*3 (N.D. Cal. Aug. 25, 2010) (“Ambat II”). Although we

agree that the facts in these two cases are not identical, we

conclude that Breiner controls our decision here and provides

the correct analytic framework for evaluating the County’s

motion for summary judgment. However, before we consider

the justifications for the Policy that the County has advanced

under our two-step BFOQ inquiry, we must first address the

issue of the deference owed to the Sheriff’s judgment in

implementing the Policy.

3 We initially adopted this test for the purpose of evaluating sex

discrimination claims under Title VII in 1980. See Harriss v. Pan Am.

World Airways, Inc., 649 F.2d 670, 676 (9th Cir. 1980).
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 15

1. Deference to the Sheriff’s Judgment

“Judgments by prison administrators that ‘are the product

of a reasoned decision-making process, based on available

information and experience,’ are entitled to some deference.”

Breiner, 610 F.3d at 1212 n.6 (quoting Robino, 145 F.3d at

1110); see also Henry v. Milwaukee Cnty., 539 F.3d 573,

580–81 (7th Cir. 2008) (“[T]he administrators of female

correctional facilities . . . are entitled to substantial deference

when fashioning policies to further the goals of the facility. . .

[H]owever, . . . the discretion accorded to these individuals

. . . is [not] effectively unlimited. A defendant ultimately

must introduce sufficient evidence to prove that the

administrator’s judgment . . . is ‘the product of a reasoned

decision-making process, based on available information and

experience.’” (quoting Torres v. Wisconsin Dep’t of Health

& Soc. Servs., 859 F.2d 1523, 1532 (7th Cir. 1988))).

Deference often plays a significant role in supporting a

BFOQ defense in the corrections context, and we do not

downplay the importance of respecting the judgment of the

officials who are most knowledgeable about how best to

address the challenges posed by a particular institution. 

Nevertheless, such deference is not automatic. We require

that such a judgment be the result of a “reasoned

decision-making process, based on available information and

experience,” Breiner, 610 F.3d at 1214; otherwise, deference

to that judgment cannot play a role in our BFOQ inquiry.

Here, the record demonstrates that there are genuine

issues of material fact as to whether or not such a process led

to the Sheriff’s adoption of the Policy. In support of SFSD’s

decision-making process, the Sheriff asserts that he discussed

the Policy with Undersheriff Dempsey, the Chief of the
16 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

Custody Division, and jail commanders for “months.” He

also claims to have consulted “incident reports of misconduct

or alleged misconduct.” However, while the prevention of

sexual misconduct was offered by the Sheriff as his primary

reason for adopting the Policy, SFSD did not conduct any

internal surveys or studies to determine the extent of that

misconduct. Neither the Sheriff nor Undersheriff Dempsey

attempted to consult the deputies directly responsible for

supervising the inmates in order to learn from their front-line

experience. Further, the Sheriff testified that he did not

consult any outside sources – not even his counterparts in

other jurisdictions who may have considered similar policies

– with the exception that the Undersheriff communicated to

him that she had contacted an uncertain number of other

California sheriff’s departments to ask about whether they

had implemented similar policies. The Sheriff also testified

that he had read about incidents of sexual abuse in the

Michigan prison system, but that he did not do so until after

the Policy was implemented and that his reading “reinforced”

rather than informed his decision to implement the Policy.

Determining whether a corrections official is entitled to

deference is a fact-intensive and case-specific inquiry;

accordingly, it is generallywithin the discretion of the district

court to determine which factors are relevant. The district

court observed that it had “uncovered no case holding that a

correctional official must undertake a particular type of study

or consultation,” Ambat I, 693 F. Supp. 2d at 1138 (emphasis

in original), and we are not arriving at a contrary holding. 

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 significant that the extent of

the Sheriff’s efforts to ensure that his judgment was the result

of available information and experience contrasts sharply
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 17

with the efforts undertaken by other officials implementing

similar policies that have withstood Title VII challenges on

BFOQ grounds. See, e.g., Robino, 145 F.3d at 1111 (“To

comply with an EEOC settlement, [corrections officials]

conducted an extensive survey of post duties before

determiningwhich posts should be designated female-only.”);

Everson, 391 F.3d at 741–45 (describing how three studies

were conducted, including one pursuant to a settlement with

the DOJ); cf. Torres, 859 F.2d at 1531–32 (holding that

prison officials were required to “innovate” in order to serve

the rehabilitative interests of the female inmates, because

empirical studies concerning the rehabilitation of female

inmates “simply did not exist” at the time).

The district court appears to have granted the Sheriff’s

judgment deference based primarily on his substantial

qualifications, rather than on the characteristics of the

decision-making process itself. This reasoning is not

consistent with our precedent, which conditions deference on

whether the decision-making process itself was reasoned and

well-informed. See Breiner, 610 F.3d at 1214; Robino,

145 F.3d at 1110. While we need not decide precisely how

“reasoned” the decision-making process must be, nor how

much of the “available information and experience” a

corrections official must consider before implementing a

facially discriminatory policy, the record before us now

clearly exhibits a genuine dispute over whether the Policy

resulted from a “reasoned decision-making process, based on

available information and experience.” Breiner, 610 F.3d at

1214 (quoting Robino, 145 F.3d at 1110). Considering the

evidence in the record in the light most favorable to the

plaintiffs, as we must on the County’s motion for summary

judgment, a trier of fact could conclude that the Sheriff’s

judgment was not preceded bya decision-making process that
18 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

was sufficiently reasoned in proportion to the seriousness of

imposing the Policy. Similarly, a trier of fact could also

conclude that the seriousness of imposing the Policy required

the Sheriff to make a greater effort to avail himself of the

information and experience readily available to him – such as

by conducting relevant surveys or studies, as in Robino and

Everson, or by consulting with officials in other jurisdictions

who had considered or implemented policies like the one he

ultimately implemented, as plaintiffs suggest.

Thus, because a trier of fact considering the evidence in

the light most favorable to plaintiffs could conclude that the

decision-making process was either insufficientlyreasoned or

insufficiently based on available information and experience,

the County cannot meet its burden of showing that the

Sheriff’s judgment is entitled to deference as a matter of law,

and the County may not rely on such deference in meeting its

burden of showing that there are no genuine disputes of fact

as to whether it can satisfy our two-step BFOQ inquiry.

2. JobQualifications Reasonably Necessary to the

Essence of Operating San Francisco’s Jails

Although deference to the Sheriff’s judgment cannot play

a role in our analysis, it is still necessary for us to consider

each rationale that has been offered by the County in order to

determine whether the County is able to satisfy our BFOQ

inquiry based solely on the evidence in the record. We must

consider each of the four rationales offered by the County in

order to determine (1) whether any rationale suggests a job

qualification reasonably necessaryto the essence of operating

SFSD’s jails, and, if so, (2) whether sex is a legitimate proxy

for determining whether a deputy actually has that

qualification. Breiner, 610 F.3d at 1210.
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 19

In considering each of the County’s rationales, the County

easily meets its burden, as a matter of law, of demonstrating

that there are job qualifications derived from the four

justifications that are reasonably necessary to the essence of

operating SFSD’s jails. Each of the four justifications that

the Sheriff claims drove his decision to implement the Policy

– protecting female inmates from sexual misconduct by male

deputies, maintaining jail security, protecting inmate privacy,

and preserving the ability of female inmates to rehabilitate –

is essential to the operation of a corrections facility and has

been recognized as justifying facially discriminatory policies

in other contexts. See Dothard, 433 U.S. at 335 (security);

Robino, 145 F.3d at 1111 (safety, security, privacy,

rehabilitation); Everson, 391 F.3d at 750 (safety, security,

privacy, rehabilitation).

Based on these important rationales for the Policy, we

have no difficulty in identifying four “job qualification[s] . . .

reasonably necessary to the essence of” operating SFSD’s

jails, any of which would satisfy the first prong of our test. 

Breiner, 610 F.3d at 1210. These qualifications

corresponding to the four rationales are (1) not posing a threat

to the safety of female inmates due to a likelihood of

perpetrating sexual misconduct against them; (2) not posing

a threat to jail security; (3) not posing a threat to female

inmates’ privacy; and (4) not posing a threat to female

inmates’ ability to rehabilitate. We now consider each of

these four qualifications under the second prong of our test to

determine whether there is any genuine dispute of material

fact as to whether being male is a “legitimate proxy” for any

of them.
20 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

3. Whether Sex Is a Legitimate Proxy for

Reasonably Necessary Job Qualifications

The County may show that excluding all male deputies is

a “legitimate proxy” for excluding deputies who lack one of

the four qualifications if there is (a) “a substantial basis for

believing that all or nearly all [men] lack the qualification” or

(b) “it is impossible or highly impractical . . . to insure by

individual testing” whether or not a male deputy has the

qualification. Id. at 1210 (alteration in original). We also

note that it is impossible to satisfy the “legitimate proxy”

prong if there is no “concrete, logical basis for concluding

that gender restrictions are ‘reasonably necessary,’” id. at

1212, or if alternatives have not been reasonably considered

and refuted, id. at 1216.

The County asserts that the primary reason for the

Sheriff’s adoption of the Policy was to protect the safety of

female inmates by reducing the possibility of sexual

harassment and abuse by male deputies. While there is no

question that this is an extremely important interest, the

County has not met its burden of showing that there is no

genuine dispute over whether excluding men from

supervisory positions in female housing units is a legitimate

proxy for requiring that deputies in those positions not pose

a threat to the safety of female inmates. More specifically, at

this stage of the proceeding, the County has not shown that

the Sheriff had “a substantial basis for believing that all or

nearly all” male deputies were likely to engage in sexual

misconduct with female inmates, nor has it shown that “it is

impossible or highly impractical . . . to insure by individual

testing” that a male deputy does not pose such a threat. Id. at

1210.
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 21

The statistics on sexual misconduct perpetrated by male

deputies against female inmates in SFSD’s jails are deeply

troubling. The record shows that in the five years preceding

the implementation of the Policy, ten allegations of sexual

misconduct were made; two more allegations were made the

year after the Policy was implemented. A substantial portion

of these allegations were sustained or were followed by a

deputy’s resignation. We also accept that it is reasonable to

assume, as the County argues, that other instances of

misconduct may have gone unreported.

Nevertheless, these statistics by themselves do not prove

that “all or substantially all” male deputies are likely to

perpetrate sexual misconduct. To suggest that all or most

male deputies pose such a threat would amount to “the kind

of unproven and invidious stereotype that Congress sought to

eliminate from employment decisions when it enacted Title

VII.” Breiner, 610 F.3d at 1211.

On this record, the County is also unable to show that

there is no genuine dispute as to whether it is impossible or

highly impractical to insure by individual testing that a male

deputy does not have a propensity to perpetrate sexual

misconduct. We have observed that background checks,

which all deputies must undergo, are among “prison

administrators[’] . . . multiple resources . . . to ensure

compliance with institutional rules.” Breiner, 610 F.3d at

1215. As the County points out, peace officer candidates

must also undergo psychological examinations.

While conceding that background checks and

psychological testing are used for the purpose of screening

for a propensity to perpetrate sexual misconduct, the County

suggests that such screening mechanisms are inadequate
22 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

because they are unable to detect all potential perpetrators. 

Removing every deputy with any potential for engaging in

misconduct may be a laudable goal, but that goal is

insufficient to justify a policy that discriminates in such broad

strokes. Rather, we have observed that a BFOQ defense

cannot be maintained if available testing offers “a practical

reliable differentiation of the unqualified from the qualified

applicant, [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) (internal citation and quotation marks omitted). The

record before us does not resolve the genuine dispute over

whether the tests that are presently used or that could be used

by SFSD would permit it to make a practical reliable

differentiation between those who are likely to engage in

sexual misconduct and those who are not.

The County also argues that employing male deputies in

the female housing pods poses a threat to jail security. In so

arguing, it points to two specific assertions offered by the

Sheriff. First, the Sheriff expressed concern that male

deputies were particularly vulnerable to manipulation by

female inmates, potentially leading them to overlook conduct

in violation of jail regulations, such as smuggling contraband

into the jail. Second, he claimed that the consequence of

male deputies’ fear of being accused of sexual misconduct

could be that those deputies would be unwilling to supervise

female inmates as closely as necessary, leading to an even

greater risk of female inmates being able to violate jail rules.

However, the record on summary judgment is insufficient

to demonstrate that there is no genuine dispute as to whether

“all or substantially all” male deputies would be vulnerable

to manipulation by female inmates or as to whether it would

be “impossible or highly impractical” to test for whether a
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 23

male deputy is manipulable. The County has introduced no

evidence, even in the declarations of SFSD officials, that

would support this conclusion. Likewise, the County has

failed to demonstrate that there is no genuine dispute over

whether “all or substantially all” male deputies would be

influenced by fear of false allegations, or over whether it

would be “impossible or highly impractical” to test for such

behavior. The Sheriff himself acknowledged that he has “no

idea” how widespread this purported problem is. He also

admitted that he is unaware of whether any efforts were made

within SFSD to explore non-discriminatoryalternatives to the

Policy for the purpose of mitigating the potential effect of

false allegations leveled at male deputies. Thus there is a

genuine 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 justification for the Policy is

protecting the privacy interests of female inmates. However,

the record does not demonstrate that there is an actual risk of

female inmates’ privacy being compromised by male

deputies. SFSD has policies in place to prevent male deputies

from taking on duties, such as strip searches, that might

violate the privacy of female inmates. The inmates are

required to remain clothed at all times, except when

showering. When showering or 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 genuine dispute as to

whether privacy screens actually do compromise jail security

where, as here, the screens remained in use even after the

Policy was adopted. See Torres, 859 F.2d at 1526 (finding

that a BFOQ defense could not be sustained over privacy
24 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

concerns where “the [district] court noted that [corrections

officials] continued to allow [female] inmates to use privacy

cards even after the BFOQ program [requiring female guards]

had been installed, thus rebutting the argument that the

presence of male guards reduced observation of the

inmates”).

The County’s final justification for the Policy is

promoting the rehabilitation of female inmates. The Sheriff

asserts that he was concerned that surveillance by male

deputies could traumatize female inmates, particularly those

who had suffered physical or sexual abuse in the past. The

County introduced evidence that a disproportionately high

number of female inmates had suffered such abuse. 

Nevertheless, there is a genuine dispute over whether

excluding male deputies is a legitimate proxy for excluding

deputies who would interfere with female inmates’

rehabilitation.

A “staffing restriction . . . must match . . . ‘job functions’

with a high degree of specificity to be found reasonably

necessary.” Breiner, 610 F.3d at 1213 (quoting Johnson

Controls, 499 U.S. at 202). In this situation, SFSD has

separated the functions of supervising the inmates in the

housing pods from the functions of providing rehabilitative

programming to the inmates, such as through a high school

program, support groups, and parenting classes. Further,

there is no evidence in the record that the individuals staffing

the rehabilitative programs, some of which are staffed by

independent contractors, are themselves required to be

female. If female inmates were supervised by men in their

rehabilitative programs while the Policy was in effect, that

fact alone would defeat the County’s argument that excluding

men from supervisory roles was necessary to promote female
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 25

inmates’ rehabilitation. See Henry, 539 F.3d at 582-83

(“[I]nconsistencies in implementation cast a significant doubt

on whether the policy is reasonably necessary.”). As

plaintiffs observe, there is also conflicting expert testimony

over whether isolating female inmates from men might in fact

impede the inmates’ efforts at rehabilitation; for example,

plaintiffs’ expert discussed research indicating that the

presence of male officers might itself promote the

rehabilitation of female inmates.

C. Conclusion

The justifications offered by the County in support of the

Policy each speak to extremely important concerns, and the

Sheriff is to be commended for his attention to the welfare of

female inmates in San Francisco’s jails. However, the fact

that the Policy seeks to advance such important goals as

inmate safety is not, by itself, sufficient to permit

discrimination on the basis of sex. When moving for

summary judgment, the County bears the heavy burden of

showing that there are no genuine issues of material fact as to

whether excluding male deputies because of their sex is a

legitimate substitute for excluding them because they are

actually unfit to serve in the female housing pods. On the

record before us, the County has not made such a showing.

Discrimination on the basis of sex is almost always

disfavored under Title VII. Thus, even in a correctional

setting, our test for whether an employer is entitled to a

BFOQ defense – that is, whether an employer has shown that

discrimination is “reasonably necessary,” 42 U.S.C. § 2000e2(e)(1) – is purposefully difficult to satisfy. It is even more

difficult when an employer moves for summary judgment and

so must show that there are no genuine disputes that would
26 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

prevent it from satisfying our two-step inquiry as a matter of

law. While we do not reach the issue of whether the County

could ultimately prevail on plaintiffs’ discrimination claims,

the factual disputes in this case prevent the County from

prevailing at this stage.

We are mindful that deference often plays a significant

role in allowing a defendant to meet its burden of proving that

it is entitled to a BFOQ defense in the corrections context,

and we do not downplay the importance of courts deferring

to the judgment of officials like the Sheriff, who has

tremendous experience and expertise with respect to all

aspects of operating San Francisco’s jails. But, again, such

deference is not automatic, no matter how extensive an

official’s qualifications. A discriminatoryemployment policy

is an extraordinary response to a workplace problem, and our

principle of deferring to the judgments of corrections officials

has its roots in the expectation that officials have made

commensurate efforts to determine that a discriminatory

policy is a necessary response and the only viable response. 

Thus, while we don’t presume to be able to second-guess an

official’s judgment, we do require that such a judgment be

“‘the product of a reasoned decision-making process, based

on available information and experience.’” Breiner, 610 F.3d

at 1212 n.6 (quoting Robino, 145 F.3d at 1110).

We need not and do not reach a conclusion about whether

the Sheriff’s judgment was the result of such a reasoned

process. However, on the record before us, we cannot find as

matter of law that the Policy resulted from such a process. 

Therefore, on summary judgment, the County may not rely

on deference to the Sheriff’s judgment in order to meet its

burden of proving that it was entitled to a BFOQ defense. In

the absence of deference to the Sheriff’s judgment, the
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 27

County is also unable to meet its burden of proving that there

is no issue of material fact as to whether its policy of

excluding all male deputies from the female housing units is

a legitimate proxy for excluding only those deputies that truly

pose a threat to the important interests SFSD rightfully seeks

to protect. The district court’s grant of summary judgment as

to plaintiffs’ sex discrimination claims and other claims

predicated thereon is REVERSED.

Because the district court denied plaintiffs’ summary

judgment motion on the same grounds that it granted the

County’s motion, the district court’s denial of summary

judgment to plaintiffs on these same claims is VACATED. 

This case is REMANDED for further proceedings on these

claims.

III. Evidentiary Claims

Prior to the district court’s ruling on the parties’ crossmotions for summary judgment on plaintiffs’ discrimination

claims, plaintiffs made numerous objections to evidence

offered by the County in support of its motion – particularly

to declarations submitted by SFSD officials. The district

court overruled three of the objections; it did not explicitly

rule on the remainder of the objections but relied on the

challenged evidence in its summary judgment order. 

Plaintiffs challenge the district court’s explicit and implicit

evidentiary rulings in the County’s favor.

“We review the district court’s evidentiary decisions for

abuse of discretion, and the appellant is . . . required to

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

Herron, 634 F.3d 1101, 1110 (9th Cir. 2011) (internal

quotation marks omitted). Because we reverse the district
28 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

court’s grant of summary judgment on plaintiffs’

discrimination claims, plaintiffs cannot establish prejudice;

plaintiffs will have the opportunity to challenge the district

court’s evidentiary rulings if they are unsuccessful on

remand. Plaintiffs’ evidentiary challenges are DISMISSED.

IV. Attorney’s Fees

In addition to their sex discrimination claims, plaintiffs

filed various retaliation claims, also under Title VII and

FEHA. The district court granted summary judgment to the

County as to all but three plaintiffs, and the County settled the

remaining claims. Plaintiffs moved for attorney’s fees in the

amount of $127,447.26 for having settled these claims. After

an in camera review of plaintiffs’ counsel’s time sheets, the

district court awarded $8,925 for “retaliation-specific work,”

observing that plaintiffs could not recover “fees for time

devoted to litigating the gender discrimination claims.” 

Plaintiffs contend on appeal that the fee award is not

commensurate with the extent of their success.

“[I]n a lawsuit where the plaintiff presents different

claims for relief that ‘involve a common core of facts’ or are

based on ‘related legal theories,’ the district court should not

attempt to divide the request for attorney’s fees on a

claim-by-claim basis. Instead, the court must . . . ‘focus on

the significance of the overall relief obtained by the plaintiff

in relation to the hours reasonably expended on the

litigation.’” McCown v. City of Fontana, 565 F.3d 1097,

1103 (9th Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S.

424, 435 (1983)). In sum, “the district court should

adequately explain the reasonable number of hours and

hourly rate it uses in calculating the fee, and appropriately

adjust the award to account for [a plaintiff’s] limited success
ANDERSON V. CITY & CNTY. OF SAN FRANCISCO 29

on claims and damages, and for any public benefit derived

from his suit.” Id. at 1105.

The district court concluded that plaintiffs’ success was

minor relative to the scope of the sex discrimination action,

and it awarded fees accordingly. 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 award that it did. Under

the district court’s own reasoning, plaintiffs will be entitled

to a substantially greater award if they are successful on

remand. The district court’s award of attorney’s fees is

AFFIRMED.

V. Gray’s Retaliation Claims

John Gray was among the plaintiffs who claimed

retaliation and against whom the district court granted

summary judgment; the district court was correct in its

judgment. Gray disseminated defamatory statements about

several individuals, amounting to what the SFSD deemed

“[c]onduct, on or off duty, which reflects adversely on the

SFSD.” As a result, he was terminated. Gray is unable to

rebut the County’s evidence that his conduct was the nonretaliatory motive for his termination, Munoz v. Mabus,

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

or circumstantial evidence demonstrating that a

discriminatory reason more likely than not motivated” the

County, McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122

(9th Cir. 2004). Further, his argument that his defamatory

statements, because they were made in connection with an

earlier employment-related arbitration, are protected by

California law from being used as evidence in this action is

without merit. See Oren Royal Oaks Venture v. Greenberg,
30 ANDERSON V. CITY & CNTY. OF SAN FRANCISCO

Bernhard, Weiss & Karma, Inc., 728 P.2d 1202, 1208 (Cal.

1986). The district court’s grant of summary judgment to the

County on Gray’s retaliation claims is AFFIRMED.

AFFIRMED in part, REVERSED in part, VACATED

in part, DISMISSED in part, and REMANDED for further

proceedings. Each party shall bear its own costs.