Supreme Court: prisons liable for lewd inmates

When Deanna Freitag began work as a guard at California's Pelican Bay State Prison, she became the object of a special brand of unwanted attention from three inmates in the highest security wing of the institution. She was repeatedly the target of lewd, exhibitionist behavior.

Male guards shrugged off the inmates' X-rated graphic displays, saying prisons are inherently hostile. Ms. Freitag complained to prison officials, warning that the inmates' conduct was creating a sexually hostile work environment in violation of Title VII of the Civil Rights Act.

The managers say they took action against two of the inmates and arranged counseling for the third, but the lewd conduct continued. After more complaints from Freitag, prison managers retaliated – against her.

They attempted to destroy her credibility, according to her lawyer, and eventually fired her. She went to court, where a jury ruled that the inmates had created a sexually hostile work environment and that prison officials failed to adequately address it. The panel ordered the state to pay Freitag $600,000 in damages.

On Monday, the US Supreme Court declined to take up Freitag's case, rejecting an appeal filed by the California Attorney General's office.

Freitag's lawyer, Pamela Price of Oakland, Calif., says the case should have been resolved long ago. But she says state corrections officials have resisted fully enforcing gender protections in Title VII. "There are people still in the department who think it is a joke, who think this is just women making a lot of noise about nothing."

Lawyers for the state had urged the justices to hear the case, citing concern that the Freitag precedent might unleash an array of similar hostile workplace lawsuits in prisons.

Senior Assistant Attorney General Jacob Appelsmith says the case has forced corrections officials into a difficult posture of trying to balance the goals of maintaining a safe prison system against court-ordered remedial measures to prevent the harassment of women guards.

"Let me be clear, the Department of Corrections does not want its peace officers harassed by inmates," Mr. Appelsmith says. "We are just trying to weigh the many competing concerns in a complicated prison system."

At issue in the case was whether prison officials can be held responsible for failing – in the view of a judge – to adequately control the misbehavior of inmates. Corrections officials say they deserve a degree of judicial deference given the challenging conditions in many prisons.

The Ninth US Circuit Court of Appeals ruled in September in the Freitag case that employers (including the state's Department of Corrections) can be held liable for the harassing conduct of nonemployees when the employer fails to take action to correct the misconduct.

The appeals court rejected suggestions by lawyers for the state that a prison is an inherently hostile environment. Guards should not be entitled to sue the state when faced with the kind of hostile conduct they were hired and trained to control, the state argued.

But the appeals court disagreed. Prisons are no different than any other employer, said Judge Stephen Reinhardt, writing for the unanimous three-judge appeals court panel. The decision in the Freitag case applies as binding legal precedent throughout California and eight other Western states that make up the Ninth Circuit.

Lawyers for California warned in their brief to the Supreme Court of possible spinoff suits. "Prisons are rife with offensive behavior by inmates, whether verbal or physical, whether directed at guards or other inmates, because of sex, race, color, religion, or national origin," wrote Supervising Deputy Attorney General Vincent Scally in his brief to the Supreme Court.

Inmates in the high-security special housing unit of a prison – like Freitag's unit – present prison management with "serious, continuous management problems," Mr. Scally said.

In a seven-month period in 2000, 2,139 disciplinary offenses were reported at Pelican Bay. They included 155 inmate assaults against staff, 101 inmate assaults against inmates, 243 reports of inmates in possession of a deadly weapon or materials to make a weapon, 77 instances of indecent exposure, and 30 cases of inmates throwing milk, water, urine, or feces at guards.

Scally said the 10 instances of indecent exposure and sexually explicit activity witnessed by Freitag amounted to "common sexual misconduct" within the prison setting. He said Freitag and other guards had been trained in how to respond to it.

Freitag's lawyer, Ms. Price, says the problem stems from deep-seated sexism by prison officials. "The men do not want women in the institutions," she says. "When the women at Pelican Bay complained, they were told this is a man's prison, get used to it."

She adds," The women were told there was nothing that could be done, or even worse, they were placed in situations in which it was obvious to them that they were being used [by prison supervisors] to placate the inmates. They were being used as sexual toys to make the inmates calm down and make it easier for everyone to get along."