On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2002-3156.
Before Judges Newman, Fall and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2003
Appellant Union County Council No. 8, AFL-CIO, IFPTE (the Union) appeals from a final administrative decision of the Merit System Board (Board) that granted respondent Union County's (County) request for eight bona fide occupational qualification (BFOQ) designations for male-only Juvenile Detention Officer (JDO) positions. At issue is whether the County has sufficiently demonstrated a BFOQ defense or justification to state and federal proscriptions against sex discrimination, based on the privacy rights of juvenile male detainees, to warrant the exemption relief it seeks. We conclude that a proper showing has been made and accordingly affirm the Board's decision.
These are the pertinent facts. On November 26, 2001, the County sought approval from the New Jersey Department of Personnel (DOP) to fill eight available JDO positions exclusively with males. Its application, therefore, requested eight BFOQ designations, pursuant to N.J.A.C. 4A:4-4.5, for male-only JDOs. These positions are in the male wing of the Union County Juvenile Detention Center (Center) where juvenile detainees between the ages of 11 and 17 reside, pending disposition of their cases. At the time, the Center housed 64 male juvenile detainees and 8 female juvenile detainees, and employed 21 male and 8 female JDOs.
To substantiate its request, the County explained that to ensure the proper level of care, custody and security at the Center, the JDOs in the male wing were required to maintain constant visual contact with the juvenile detainees, even when the detainees were showering, changing clothing and using the toilet, and were required to"perform intimate searches" of all detainees on a daily basis, occurring at bedtime, after visiting hours, and immediately prior to showering. As to the latter, the County further explained that seven JDOs were required when the male residents were showering:
Two staff stand in the shower area itself to maintain the required constant observation of the residents in the shower. One remains in the doorway to supervise entry and exit from the shower area. The other is positioned in the shower room with the residents for security reasons.... The remaining three on staff are stationed in the male wing conducting strip searches on residents preparing to enter the shower and issuing clothing to the residents leaving the shower. The need for this close observation and physical contact with nude male residents precludes the use of female juvenile detention officers in the male wing.*fn1
Consequently, the County's application asserted:
To ensure the resident the right to privacy and that the psychological well-being is maintained, we prohibit JDOs of the opposite sex from conducting intimate searches, or observing residents while showering or toileting.
The County's application also detailed alternative options considered, but rejected as unfeasible. The first option included construction of a privacy screen in the male shower area, but was deemed impracticable since the shower area was not structurally amenable to such a change, and would involve an"inordinate [construction] expense" as well as an increased security risk which would accompany use of the screens.
The second alternative called for a shift in the"staffing pattern" in conducting strip searches at shower time, bedtime, and after visiting hours. Specifically, the County considered creating an all-female third shift, but ultimately rejected the plan because such a change would merely reshuffle the existing staff pattern, neither increasing the number of female officers, nor resolving the need for a specified number of male JDOs whose presence to observe or handle male detainees while nude was simply too continuous to schedule otherwise.
The final option involved placement of privacy screens around the toilet area in each dorm area. This proposal was ruled out because, beyond the inordinate expense to be incurred, such privacy enclosures would create a security breach by impeding the JDOs' ability to observe the residents.
As required, the County filed its application with the DOP's Division of Equal Employment Opportunity and Affirmative Action (Division) pursuant to N.J.A.C. 4A:4-4.5(c). The Director of the Division denied the application by letter of January 28, 2002, stating that"it is not permissible to refuse to hire an individual woman or man on the basis of stereotyped characteristics of the sexes", and suggesting instead, without further explanation, that the ...