Question

Case 10.4 Gena Duckworth v. St. Louis Metropolitan Police Department

2007 U.S. App. LEXIS 17137 (8th Cir.)

The issue in the case that follows is whether assigning female police officers to the nightwatch is a bona fide occupational qualification.

BENTON, CIRCUIT JUDGE.

Three female officers sued their superiors for gender discrimination under Title VII of the Civil Rights Act of 1964 and the Missouri Human Rights Act. The district court denied the defense of qualified immunity to the police superiors. This court reverses and remands.

After a transfer left no female officers on the night watch in District One, Captain Antoinette M. Filla asked if any female officers would work then. None volunteered. Four months later, Captain Filla assigned plaintiff Sandra Delaney to the night watch. Delaney was the least senior of the experienced female officers in the district. After working the night watch for two months, Delaney complained that her husband was called up for military duty and she had difficulty obtaining a babysitter. On February 6, 2003, Captain Filla emailed all personnel: “I believe there is a definite need for female officers on the nightwatch.” On the advice of Major Roy Joachimstaler—her immediate superior—she assigned the three plaintiffs (based on seniority) to work the night watch, initially rotating for 28-day periods.

On February 10, plaintiffs filed a grievance:

We believe it is unfair to order us based upon our gender, to rotate monthly on the night watch. This order is in violation of Rules Manual designated in Section 3.114 where it is mandated that police officers be permanently assigned to a platoon. This order is also in violation of Title VII of the Civil Rights Act of 1964 wherein it is illegal to discriminate against employees in regards to sex, when the policy is applied in terms of condition of employment including placement.

On February 14, Captain Filla explained her position in an intra-department report to the plaintiffs and her superiors:

I believe the assignment of females to all watches is imperative to the operation of any command, not just patrol operations. It is not only important that all watches in every command be as diverse as the population we serve, but also as diverse as the entire population of our police department. . . .

The unique operations of law enforcement, also requires unique responsibilities by female and male officers, responsibilities which no other profession requires. We have to consider the safety of all personnel on the street when assigning our officers to crucial positions; for example, the searching of suspects at incident scenes.

I currently have fifteen (15) female officers (6% of authorized strength) assigned to District One, with none assigned to the nightwatch. We felt it was important to have our females assigned strategically to cover several recreation brackets of all watches.

As authority, Captain Filla cited Special Order 90-S-7, which provides: “District commanders may reassign an officer from his/her assigned work schedule provided the commander has sufficient justification to do so.” Her “resolution to this Grievance is to assign three (3) female officers [plaintiffs] to the nightwatch permanently, with one in each of the three precincts.” Plaintiffs received a 10% pay increase while working the night watch.

On February 25, plaintiffs filed a second grievance claiming the permanent placement on the night watch was retaliation for their original grievance. Captain Filla rejected the grievance: “Your assignment to the nightwatch was based on the District’s needs and operations, not on personal issues.”

Viewing the facts favorably to plaintiffs, there is direct evidence of gender discrimination. Captain Filla emailed all personnel: “I believe there is a definite need for female officers on the nightwatch.” On the advice of Major Joachimstaler, she reassigned only females to work the night watch. Chief Mokwa directly participated in the reassignments by approving them.

“For a gender-based classification to withstand equal protection scrutiny, it must be established at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”

In this case, Captain Filla’s intra-department report identifies two governmental objectives. First, she believed it was “important that all watches in every command be as diverse as the population we serve.” Second, Filla aimed “to consider the safety of all personnel on the street when assigning our officers to crucial positions; for example, the searching of suspects at incident scenes.” The record here does not demonstrate the importance of these objectives.

The next step in the qualified immunity analysis “is to ask whether the right was clearly established . . . in light of the specific context of the case.” Reasonable mistakes “can be made as to the legal constraints on particular police conduct. . . . If the officer’s mistake as to what the law requires is reasonable . . . the officer is entitled to the immunity defense.”

Reasonable police administrators could believe that assigning female officers to the night watch was lawful.

Here, although the plaintiffs were impermissibly reassigned without an exceedingly persuasive justification, the decision—although mistaken—was reasonable. “The issue is not whether the defendant acted wrongly, but whether reasonable persons would know they acted in a manner which deprived another of a known constitutional right.” Based on the defendants’ reasonable judgments, qualified immunity should have been granted.

The judgment of the district court is reversed in part, and the case remanded. Judgment for St. Louis Metropolitan Police Department.

Case Commentary

The 8th Circuit Court reasoned that the decision to assign female police officers to the nightwatch was reasonable; therefore, qualified immunity should be granted to Captain Filla.

Case Questions

1.

Do you agree with the court’s determination?

2.

Is it a BFOQ to have female police officers on the nightwatch?

3.

How could this dilemma be resolved in an ethical manner?

Answer 1

1, yes, I agree with the court's determination because it is court order purpose of individual federally rights and to provide relief...qualified immunity safeguard the government and thereby to protect the public more..unqualified immunity always against government rules and court order they did not identify themselves as a police..

2, Bona fide occupational Qualification ( BFOQ) job charecteristics need discrimination..This discrimination on the basis of sex, race, religion..if job selection under this category for safety reasons BFOQ defense allows employers discriminate based on gender..In some circumstances BFOQ is acceptable..this female police officer for nightwatch will come under BFOQ for safety with particular reason..

3, sex is considered a BFOQ if it is reasonably necessary to the services for the particular job ..Ethical concern about the effect of an employer sex could Qualify BFOQ like privacy and safety reasons..Ethical concern that sex of the employee for particular position should be determined for the guard job..