Employment Law in Nevada: Recent Developments

August 20, 2010

Hiring only female prison guards for women’s facility violated Title VII, where sexual abuse by male prison guards could be handled with nondiscriminatory methods.

Breiner v. Nev. Dep’t of Corrections, ___ F.3d ___, 2010 WL 2681730 (9th Cir. 2010)

Male prison guards filed suit against the Nevada Department of Corrections (NDOC) to challenge NDOC’s policy of not hiring men for position in the woman’s correctional facility. The woman’s correctional facility, which was run by a private company, CCA, at the time, had widespread problems of sexual abuse of inmates by prison guards. Many of these instances of sexual abuse were sex-for-contraband, with guards providing inmates with drugs and alcohol, among other things. As a result of the Inspector General’s report of these issues, CCA and NDOC terminated the contract and the state assumed control over the facility. NDOC’s director determined that it was appropriate to staff the facility with women lieutenants in order to prevent ongoing sexual abuse. NDOC acknowledged that its policy of hiring only women for lieutenant positions was discriminatory on its face.

The Court of Appeals reversed the district court’s holding that the gender restriction for the lieutenant position had a “de minimis” impact on Plaintiffs. In reaching this conclusion, the Court noted that the district court had misinterpreted Robinot v. Iranon, 145 F.3d 1109 (9th Cir. 1998), in which certain posts were restricted to female prison guards. The Robinot Court held that the gender restriction there was “de minimis” because only 6 out of 41 posts were restricted. The restriction tended to preclude prison guards from working during their preferred shifts, and not, as here, their ability to get a position that may have a detrimental effect on their career. Stated another way, in Robinot “a minor impact on a job assignment was too minimal to be actionable,” while Plaintiffs here were refused employment on the basis of sex, clearly violating Title VII.

Moreover, the Court of Appeals reversed the district court’s holding that NDOC’s discrimination was allowable as a bona fide occupational qualification, stating that NDOC’s theories “rel[y] on the kind of unproven and invidious stereotype the Congress sought to eliminate from employment decisions when it enacted Title VII.” The Court of Appeals noted that NDOC had a variety of non-discriminatory methods for controlling prison guard sexual abuse such as utilizing background checks, promptly investigating allegations of misconduct; and employing severe discipline for misconduct.

Claims of Race Discrimination are not necessarily enough to sustain an action for intentional infliction of emotional distress or for negligent hiring and training by an employer

Colquhoun v. BHC Montevista Hosp., Inc., No. 2:10-cv-00144-RLH-PAL, 2010 WL 2346607 (D. Nev. 2010)

Plaintiff, an African-American woman, worked as an educator at Montevista Hospital. Plaintiff claims she was forced to resign due to a hostile work environment where she endured “disparaging remarks about [her] African American heritage,” and was wrongfully accused of stealing equipment from Montevista. Plaintiff filed suit against Montevista, alleging discrimination under Title VII, discrimination under NRS 613.330, negligent infliction of emotional distress, intentional infliction of emotional distress, negligent hiring, negligent supervision, and negligent training.

The Court dismissed Plaintiff’s intentional infliction of emotional distress claim, finding that Plaintiff had not provided facts indicating that Defendant’s refusal of a “justified” pay raise, false accusation of Plaintiff of stealing, and making “racially derogatory comments,” was intentionally extreme or outrageous conduct. The Court noted that even if the allegations of Defendant’s discriminatory conduct was true, Plaintiff’s claims are appropriate under federal and state anti-discrimination laws, and not “tort claims reserved for the m[o]st egregious behavior.” The Court also dismissed Plaintiff’s negligent infliction of emotional distress claim, noting that Plaintiff’s complaint failed to allege any negligent conduct.

Plaintiff also argued that Defendant was liable for negligent hiring, supervision and training solely on the basis that its employees treated Plaintiff in a discriminatory manner. The Court flatly rejected this argument stating that wrongful acts of an employee “does not in and of itself give rise” to these claims, rather, Plaintiff must allege specific facts of how the employer violated its duty to Plaintiff.