After Dothard: Female Correctional Workers and the Challenge to Employment Law

Source: Brenda V. Smith, Melissa C. Loomis, American University, Washington College of Law Research Paper No. 2014-7, 2014

From the abstract:
This article examines a profession where women have made great strides – corrections. Using an equality framework, corrections and other non-traditional professions were the first target of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than men to hold these positions and be married.

Women’s entry into correctional spaces has had several unintended consequences. First, it has complicated the experiences of other marginalized groups in those institutions. In particular, women’s progress in correctional institutions has increased female inmates’ exposure to supervision by male staff, which places them at greater risk for sexual victimization. Second, it has diminished privacy of both male and female inmates in custodial settings. Third, it has resulted in female correctional employees’ disproportionate involvement in prohibited intimate contact with male inmates and youth in custody. These sexual interactions have resulted variously in termination, resignation, prosecution, procreation, and litigation; complicating feminist theories of power, consent, and equality. Finally, it has complicated key employment law jurisprudence.

This article examines three areas of law and how female correctional staff’s roles have complicated those doctrines: (1) privacy for inmates under the Fourth and Eighth Amendments; (2) the bona fide occupational qualification (“BFOQ”) doctrine; and (3) sexual harassment under Title VII.