NEWS
Sexual Harassment: Pelican
Bay, California
Christian Science Monitor, from the April 04,
2007 edition
Supreme Court: prisons liable for lewd inmates
The high court let stand Monday a ruling that
California officials didn't address sexual
harassment.
By Warren Richey | Staff writer of The Christian
Science Monitor
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."
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