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Hostile Work Environment and Civil Liability in Jails

When is it NOT OK to Turn the Other Cheek?

By Tate McCotter, Executive Director
National Institute for Jail Operations

The notorious practice of “gunning” or “killing” in detention facilities is nothing new.   Correctional officers, contracted employees, public defenders, and health care providers are confronted by lewd behavior exhibited by inmates daily.  Beyond the high stress that comes with the ongoing responsibilities to run a safe and secure facility, female employees are frequently subject to male inmates who expose their genitals, masturbate, and perpetually direct sexual slurs, degrading comments, propositions, and threats of sexual violence in open view.

In a very literal sense, cases of perpetual public masturbation “gunslingers” has risen up again in the courts in recent years, with a growing number of lawsuits alleging female officers and employees have been subject to a sexually hostile work environment, a violation of Title VII of the Civil Rights Act of 1964 1 for failing to remedy a sexually hostile work environment that male inmates created for female employees.  For example:

  • A female jail employee sued the Miami-Dade County, claiming inmate masturbation and harassment interfered with her mental health and job performance. 2
  • Twelve female officers working in the Mobile County, Alabama jail recently filed charges of sex discrimination with the U.S. Equal Employment Opportunity Commission, which, after investigation, was referred to the Department of Justice, who filed a lawsuit against the Sheriff’s office. 3
  • In one of the largest class-action settlements leveled at that time for pervasive sexual harassment, 524 current and former female officers who worked at the Coleman Federal Prison won a $20 million settlement against the Bureau of Prisons. The settlement also included 20 pages of procedural changes to improve employee safety, including improved training about sexual harassment, better monitoring for processing incident reports, and removing front pockets from inmate clothing to eliminate hidden masturbating. 4
  • In Cook County, IL, commissioners unanimously approved a $14 million payment to settle a lawsuit alleging a pattern of sexual harassment toward attorneys in courtroom lockups and the county jail. 5 A separate lawsuit by jail employees was still ongoing at the time of the settlement.

According to the most recently reported employment statistics, local jails employed 56,800 female correctional officers in 2019, representing approximately two-fifths of the workforce in facilities.6   In some facilities, females comprise over 70% of the workforce.7   As this employment shift has occurred, we have also seen a corresponding increase of inmates intentionally exposing themselves, usually to female correctional employees.  While male employees may be subject to the occasional incidents where inmates have thrown urine or feces on them, inmates routinely use sexually charged language and name-calling, using graphic detail to describe sexual acts they would want to perform with the employees should the opportunity occur.  Additionally, inmates have coordinated “lock and load” tactics, exposing themselves and masturbating directly at female staff members. By standing at the window or in front of the cuff port, masturbating inmates’ primary objective is to ejaculate on cell windows or through the cuff ports or doors where female staff were observed to be standing as part of a concentrated team effort.  Correctional nurses have testified after being called out for repeated medical emergencies that 99.9% of the inmate-reported emergencies were “bogus” and for prisoners’ “entertainment for the evening,” and regarded them like “hiring a call girl or a whore.” 8   In the Cook County Jail, the Savage Life gang orchestrated coordinated masturbation attacks on jail staff, making it a game by awarding higher points for higher-ranking targets.  The attacks were commonly accompanied by verbal threats and, occasionally, physical contact. 9 

At what point does an inmate’s attempt for sexual gratification or entertainment agenda cross the hostile work environment line?  In his refusal to dismiss two class-action lawsuits from female jail staff and public defenders, Judge Matthew Kennelly wrote “Male detainees in Cook County Jail and courthouse lockups have been exposing themselves, masturbating, and otherwise sexually harassing female assistant public defenders, law clerks, court interpreters, correctional officers, court services deputies, deputy sheriffs, and health care providers. The plaintiffs in these cases are women who have been victims—often, repeat victims—of these forms of sexual harassment while attempting to do their jobs.” 10   Excluding a mental illness associated with voluntary exposure with no sexual nature, when inmates intentionally and purposely expose themselves, there a distinct difference between “public” and “private acts of inmate autoerotism.

Face-to-face contact with inmates is necessary in our profession which likely cannot be eliminated and is an inherent part of the job.  However, if inmates insist on such behavior, what can and should administrators do to avoid potential liability?

Patterns of Pervasive Sexual Harassment
Litigation over public inmate autoerotism has been ongoing for years and many jail officials across the United States.  The U.S. Supreme Court, in Burlington Industries, Inc. v. Ellerth11 and Faragher v. City of Boca Raton12 ruled that employers would be vicariously liable for a supervisor sexually harassing an employee, thereby creating a hostile work environment. The employer could avail of the affirmative defense that he took reasonable care and promptly acted to stop the sexual harassment and that the victim unreasonably failed to take advantage of the opportunities provided by the employer to avoid harm.  However, in Beckford v. Dept. of Corrections, the court ruled the Faragher defense did not apply to harassment by a third party, such as the case with inmates.13

While individual incidents may fuel a lawsuit, patterns of pervasive sexual harassment have been employed to establish employers enabled a hostile work environment and a failure to protect them from such attacks.  Each circumstance may differ; however, common and repeated themes can become problematic if evidence suggests notice was given and the administration failed to exercise reasonable measures to prevent or remedy such conduct.  Courts have noted employers may be held liable for third-party conduct by non-employees when the agency “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” 14   Other courts have rejected liability when the alleged harassment was not pervasive enough to be actionable or when the administration’s response was deemed adequate. 15

Administrative Response
The issue of sexual harassment of female staff members by inmates should be taken very seriously.  Female correctional employees are critical, necessary, and valuable in our workforce.  We need them.  In broader terms, understanding the circumstances and jail environment is what it is, employees, regardless of gender, rank, or assignment, should be provided a working atmosphere where it is possible to perform responsibilities and duties without additional and unnecessary fear, physical harm, mental trauma, or degradation exacerbated by sexual harassment.  How much attention has been given to PREA and the rights of inmates compared to the repeated daily actions inmates have taken sexually abusing female officers?  Consider for a moment how this might be perceived if the victim of such behavior and acts were an inmate rather than an officer… it simply wouldn’t be tolerated.  Our officers should all be treated with dignity and respect.

Unlike PREA, internal sexual harassment policies and procedures regarding female staff and inmates may stop short of using terms like “zero tolerance,” adopting language stating such behavior is prohibited – but in actuality the practice continues.  Agencies often cite a lack of available resources and tools for enforcement, including no backing of courts in prosecuting such offenses, staffing shortages, and decreased (or very limited options) to exercise inmate disciplinary measures.  Have you ever heard a fellow officer say “What’s the point in writing him up?  He is already in jail – what else could we possibly do?”

To further complicate the issue, in a post-COVID world, already scarce resources have been even further minimized.  Over extended periods of time, human nature is to become complacent or indifferent.   Even so, no matter how diligent an administration may be, negative inmate behavior may not be fully eradicated.  However, these same jail populations will eventually return to their families, social groups, and communities.  Rehabilitation efforts are often implemented to decrease negative behavior, including the correction and redirection of sexual harassment; otherwise, those same inmates may revert to the same inappropriate habits, causing arguments, physical altercations, parole violations, and other serious consequences to themselves, their families, and society at large. 16   Tolerating sexual harassment against female officers can generate increased violent sexual behavior, foster violent sexual fantasies, reinforce violent attitudes which may have contributed to prior criminal behavior, causing inmates to become less amenable to treatment, and/or increasing the potential risk to staff members and other inmates.

Even when warned and educated, inmates may act out, but administrations have a right and responsibility to confront it.  Some proactive steps to address sexual harassment and avoid hostile work environment include the following:

  • Develop clear written policies and procedures applying sexual harassment to both inmates and certified and non-certified staff, supervisors, medical staff, vendors, and other individuals in the performance of job duties.
  • Provide training for supervisors, employees, and staff to encourage practical solutions to associated problems and circumstances which may arise.  For example, when some female officers reported feeling unsafe because of being short staffed, they suggested increasing the use of existing technology (radio, panic button).  Some administrations have successfully introduced several measures to protect female staff, justifying upgrades to outdated camera systems, increasing staffing, and replacing broken locks – all in efforts to minimize a hostile work environment.
  • Inform inmates of the policy with clear written disciplinary rules prohibiting harassing conduct including violations, consequences, and disciplinary punishments. These rules should be enforced consistently.  Ignoring such behavior may lead inmates to continue or increase negative behavior, believing there will not be any consequences.  If inmate conduct constitutes behavior of a criminal nature, prosecution should be considered and/or pursued as appropriate, which may serve as a useful deterrent.  Additionally, the likelihood of entering a state system on sex charges may cause some inmates to think otherwise.
  • Just like inmates have avenues to report sexual harassment (i.e., grievance system), female staff should also be afforded a process for filing complaints against inmates. Administrations should welcome and encourage such complaints, fully investigating incidents, without shaming or discouraging the reporting source.   Many lawsuits allege the administration ignored or discredited their reports.  A listening sincere ear with justified appropriate follow up and action can be effective in establishing a safe harbor to minimize a hostile work environment and, at a minimum, create documentation to disprove deliberate indifference.


Legislative Response
In response to successful lawsuits against state department of corrections and county jails, 17 some states passed legislation determining inmate offenses for lewd or lascivious exhibition in the presence of corrections employees.   In many of those states, inmates may be charged with a third-degree felony for intentionally masturbating, exposing genitals in a lewd manner, or other sexual acts, even if these actions do not involve actual physical or sexual contact with the victim.  These may include sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity.

While a felony offense might arguably serve as a deterrent to improper behavior, legislation hasn’t always been effective.  Some legislative language was so narrowly tailored it was not applicable to juvenile and county facilities and excluded certain personnel working with those facilities, such as medical and non-certified staff. 18   As a result, some states amended their laws to specifically include definitions of “employee” and “facility” 19  to provide, in part, county detention facilities and female employees additional tools to deter sexually harassing inmate behavior and improve workplace conditions in facilities.

Conclusion
Sheriffs and jail administrations come to know liability in an up close and personal manner which few other professions face on a regular basis.  Generally, keeping the public, staff, and inmates safe and secure is a primary challenge, especially when considering limited resources, staffing shortages, and constant interaction to provide custody, care and control of a population which does not want to be there in the first place.  Inmate autoerotism is not an appropriate place for officers, staff, or administrators to turn the other cheek.  It should be addressed directly and swiftly.  As the Ninth Circuit Court of Appeals ruled “There is no doubt that protecting the safety of [officers] in general is a legitimate interest, and that reducing sexual harassment in particular likewise is legitimate.” 20

REFERENCES

    1. 42 U.S.C. Sec. 200e-2(a)(1) f.
    2. Shammas, B. (2021, May 20). Female Jail Employee Sues Miami-Dade County Over Inmate Masturbation. Miami New Times. https://www.miaminewtimes.com/news/female-turner-guilford-knight-employee-sues-miami-dade-county-over-inmate-masturbation-called-gunning-11098881.
    3. US v. Mobile County Sheriff’s Office, U.S.D.C. (S.D.AL), Case No. 1:21-cv-00114.
    4. Deal, J. (2019, November 30). $20 million to be paid to women claiming sexual harassment, cover-up at Florida prison. WFTV. https://www.wftv.com/news/local/20-million-to-be-paid-to-women-claiming-sexual-harassment-cover-up-at-florida-prison/493884499/.
    5. Pratt, G. (2020, November 20). Cook County commissioners approve $14M settlement in lawsuit alleging indecent behavior by inmates to public defenders. Chicagotribune.Com. https://www.chicagotribune.com/politics/ct-cook-county-jail-indecency-lawsuit-settlement-20201119-csbyfyzpebbo3a7n2zpl2oay3a-story.html.
    6. (2021, March 11). Breakdown of staff employed in local jails, by gender U.S. 2019. https://www.statista.com/statistics/816421/local-jail-staff-in-the-us-by-gender/.
    7. Winter, D. (2021, March 10). ‘We see it as totally unfounded’: Mobile Metro Jail warden responds to lawsuit. WKRG. https://www.wkrg.com/top-stories/we-see-it-as-totally-unfounded-mobile-metro-jail-warden-responds-to-lawsuit/.
    8. Beckford v. Dept. of Corr., 605 F.3d 951 (11th Cir. 2010), at 6.
    9. Brown et al. v. Cook County et al., S.D.C. (N.D. IL), Case No. 1:17-cv-8085 ; Howard et al. v. Cook County Sheriff’s Office et al., U.S.D.C. (N.D. IL), Case No. 1:17-cv-8146; Caloca v. Cook County et al., U.S.D.C. (N.D. IL), Case No, 1:17-cv-9056.
    10. Brown et al. v. Cook County et al., S.D.C. (N.D. IL), Case No. 1:17-cv-8085, at 2.
    11. Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257, 1998.
    12. Faragher v. City of Boca Raton, 524 U.S. 775, 1998.
    13. Beckford v. Dept. of Corrections, 605 F.3d 951 (11th Cir. 2010).
    14. See for example Erickson v. Wis. Dept. of Corrections, 469 F.3d 600 (CA7 2006); Freitag v. Ayers, 463 F.3d 838 (CA9 2006); Slayton v. Ohio Dept. of Youth Services, 206 F.3d 669 (CA6 2000).
    15. Vajdl v. Mesabi Acad. of Kidspeace, Inc., 484 F.3d 546 (CA8 2007).
    16. See for example, NIJO Legal-Based Jail Guideline 02.08 Sexually Oriented Publications or Material.
    17. Beckford v. Dept. of Corrections, 605 F.3d 951 (11th Cir. 2010).
    18. Laws of Florida, Ch. 2010-64.
    19. Florida HB 599/SB 828 Lewd or Lasciviousness Exhibition (2019)
    20. Mauro v. Arpaio, 188 F.3d 1054, 1060 (CA9 1999) (en banc), cert. denied, 529 U.S. 1018 (2000).

CONTACT US:

The National Institute for Jail Operations (NIJO) was formed in 2011 as the primary resource dedicated to serve those that operate jails, detention, and correctional facilities. Recognizing the enormous liability and increasing litigation facing administrators, NIJO provides a compilation of legal-based resources and information for agencies to make facilities safer and more secure, proactively defend against frivolous litigation, and protect against adverse publicity and liability.  If you have questions about a specific training topic or are looking for more information on training, don’t hesitate to ask. Contact info: support@jailtraining.org