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November 20, 1978

Iola FORTS, Paula Herbert, Cynthia Hall, Laura Carey, Linda Maroon, Carol Crooks, Sharon Silman, Yvonne Lee, Sheila Liles, Deborah Lewis, on behalf of themselves and all others similarly situated, Plaintiffs,
Benjamin WARD, Individually and as Commissioner of Correctional Services, Frances Clement, Individually and as Superintendent, Bedford Hills Correctional Facility, Dorothy Reid, Individually and as Deputy Superintendent for Security, BedfordHills Correctional Facility, Melvin H. Osterman, Jr., Director of Employee Relations for the State of New York, Security Unit Employees Council 82,American Federation of State, County and Municipal Employees, AFL-CIO("Council 82"), Carl F. Gray, Executive Director, Council 82, Clayton DeFayette, President, Council 82, Local1265 of Council 82, A. V. Yarell, President, Local 1265, Defendants

The opinion of the court was delivered by: OWEN

Prior to 1976, only women had been allowed to serve as guards *fn1" in the living and sleeping corridors of the state prison for women in Bedford, New York. *fn2" In 1976, the State, in perceived compliance with Title VII of the Civil Rights Act of 1964, opened the posts to any qualified applicant regardless of sex. *fn3" Those men who thereafter successfully bid for these posts under their union's collective bargaining agreement with the State began their duties in February 1977. Within months this action for injunctive relief and monetary damages was commenced by certain inmates, complaining of a violation of their constitutional right to privacy. *fn4" Named as defendants are the State, certain unions, and certain involved officials of each. A trial of the issues was held before me, sitting without a jury, in December 1977 and January 1978.

The prison involved, the Bedford Hills Correctional Facility, is a state prison for women convicted of serious felonies, including homicide, armed robbery, and drug trafficking. In the housing units, each of some 400 inmates is assigned a solid-walled cell measuring 7' x 10'. Each corridor has 30 cells, 15 on a side. Each cell has a solid door which slides in place and is controlled from a control center at the end of the corridor called "the bubble." Each cell door has a clear glass window measuring 6 x 9 . The entire interior of a cell, including the bed and the toilet, is visible to one standing outside at the window.

 The plaintiffs charge that the male guards, sometimes in the performance of their jobs and sometimes not *fn5" have observed and can observe them in their cells in states of partial or total nudity during their dressing and undressing, *fn6" and while sleeping. Plaintiffs also assert that the males not only can but have had occasion to observe certain of them while using the cell's toilet facilities. Finally, plaintiffs complain that since certain of the central showers have partitions only to roughly shoulder height, the requirement that male guards keep them under direct observation while showering creates an impermissibly embarrassing situation. *fn7"

 From the plethora of evidence received on the trial, I conclude that a certain amount of viewing of which the plaintiffs complain has in fact occurred, and that given the physical set-up and the prison's rules, it is certain to occur again with some frequency.

 The court is thus required to make an accommodation as between two substantial principles: (1) the right of a prison inmate to some minimum of privacy; and (2) the right of equal job opportunity regardless of sex. *fn8"

 The ultimate resolution of the issues presented to the court requires first, an assessment of the right of privacy of a female prison inmate, difficult as that may be in today's fluid climate, as well as a determination of the extent to which that right is constitutionally protected, and second, a reconciliation of that right with the right of a man to equal job opportunity, balanced in such manner as to minimize the extent to which either right must be curtailed by reason of its conflict with the other.

 It is perfectly clear that men and women, from the beginning of recorded history, have had an innate need for privacy in certain areas of living. Virtually all societies even those which have little requirement of clothing for adults and none for children have rules for the concealing of female genitals. *fn9" And while societies such as the Samoan have "ma(d)e use of the beach as a latrine," there being "no privacy and no sense of shame," *fn10" the norm in today's western world is to have enclosed toilet facilities in the home and segregated toilet facilities in public places which children are early taught to use. Even small children in the western world are expected to clothe themselves and keep their private parts covered. These societal rules become mandatory as one approaches adult status. The fact that a need for privacy is the product of social conditioning makes it no less embarrassing or occasions no less feeling of shame when the privacy is invaded. *fn11" The extent to which privacy may justifiably be limited or invaded when one becomes a prison inmate is a question as to which opinions vary, as was evidenced in this case by the testimony of various penologists, psychiatrists, psychologists, and medical doctors. Obviously, an individual's normal right of privacy must necessarily be abridged upon incarceration in the interest of security of the institution. Wolfish v. Levi, 573 F.2d 118, 131 (2d Cir.), Cert. granted sub nom. Bell v. Wolfish, 439 U.S. 816, 99 S. Ct. 76, 58 L. Ed. 2d 107 (1978). Inmates must be kept track of constantly and, on occasion, unexpectedly observed to be sure that plotting is not under way nor is the fashioning of crude but effective weapons, such as pieces of metal sharpened to razor quality to use against either guards or other inmates. Suspected contraband must be searched out and confiscated. Thus, the normal right to close the front door of one's home and be free from observing eyes must give way to the need for a guard to look within.

 However, regardless of how limited an inmate's right to privacy is, as viewed by penologists and others, all agree on one thing that there is such a thing as a right of privacy. All agree that it is an invasion of a female inmate's right of privacy for her to be viewed by a male guard while she is using the toilet even if he is acting in the normal course of his duties. Penologists differ, however, as to the permissibility of invading the right of privacy. Federal prison authorities, it appears, deny protection to female inmates from such invasions of privacy regardless of the time of day or night or the circumstances. *fn12" Connecticut authorities, on the other hand, permit complete protection at all times under normal circumstances. *fn13" The Bedford officials here involved permit no protection from approximately 10:00 p.m. until almost 7:00 a.m. the next morning; however, following the morning count and for the balance of the day, Bedford's rules permit an inmate to cover her window up to 15 minutes to use the toilet or change clothes. *fn14"

 Turning to the question of equal job opportunity, there is no dispute that the job of a correction officer at Bedford Hills can be equally well performed by any qualified and trained man or woman. Sex is therefore not a bona fide occupational qualification (BFOQ), *fn15" and these positions, absent compelling considerations to the contrary, must be open to any bidder regardless of sex.

 However, on the facts before me equal job opportunity must in some measure give way to the right of privacy. I conclude that under normal conditions in a women's prison, it is neither penologically required nor permissible (1) that during the day an inmate be in a situation where a) she may be or must risk being viewed completely or partly in the nude by a male guard in the course of his duties *fn16" or b) she may be observed while using the toilet; *fn17" (2) that during the night she be observed rising from sleep to use the toilet, or suffer herself to be observed perhaps numerous times during sleep in whatever may be her disarray of bed clothes or nightgown *fn18" or no garments at all on a hot and airless night; *fn19" (3) that her head be directly observable by a male guard while she is taking a shower; *fn20" (4) that a male guard in the prison hospital be so stationed as to permit him under normal circumstances to view an inmate wholly or partly unclothed.

 What are some of the existing circumstances at Bedford to which the foregoing may be applicable? During the daytime hours, an inmate in her cell may ask the guard at the "bubble" to close the door, and the rules permit her, using some tape, to fasten paper over her window for up to 15 minutes for complete privacy while changing clothes or using the toilet. This adequately protects her privacy, and during the daytime shifts there is no reason that guards may not be assigned to the housing unit corridors regardless of sex.

 The night shift, however, is a different matter. After an inmate is locked in her cell at approximately 10:00 or 10:30 p.m., the prison rules forbid her covering her window until approximately 7:00 the next morning. (See note 14, Supra ). From time to time a guard may look into or shine a flashlight into her cell without warning to see if she is there, without any advance awareness of whether she is using the toilet or, if sleeping, her body is revealed because her bedding or night garments are disarrayed or cast aside. In the latter circumstance, an inmate may awaken in the morning to the awareness of the extent to which she has been on view during the night.

 There is inherent in the foregoing, the inmate being unable to protect herself, the risk of at least embarrassment or shame or humiliation from actual or potential viewing during the night by males whose duty it is to watch her. *fn21" I therefore conclude that it is a violation of the inmate's right of privacy to have male guards assigned to such duties during the night. *fn22" Further, somewhere between 6:30 and 6:45 in the morning, the inmates are awakened and all the cell doors are simultaneously rolled open by a master switch. Each inmate is thereupon to present herself for the morning count, which obviously takes several minutes, while the guards go up and down the long corridors. At that point, the inmates obviously do not have even the door to protect them from anything. Some inmates may wish to use the toilet upon arising; some, while waiting, may wish to change from night clothes into day clothes; one may find her night clothes and bedding visibly soiled from an unexpected menstrual flow and wish to clean up; *fn23" yet the present rules for the security of the prison require that each inmate present herself to be counted at that hour regardless of the state of her clothing or the calls of nature. Under these circumstances, I deem it inappropriate for a male guard to be making the first count of the morning with the inmates just awakened and their doors locked open.

 Turning to the shower facilities, showers are taken during the day. Certain shower stalls, visible from the "bubble," have a little cubicle outside the shower in which to dress; yet the partitions go only to the shoulders. Thus, a guard and a prisoner may look directly at each other while the inmate is showering or changing. While this, in my judgment, is an invasion of privacy, I deem it easily correctable by such means as the appropriate positioning of mottled or smoky glass which permits a guard to observe that there is, in fact, a person in the shower and assure himself of her appropriate and timely departure after use of the shower without being able to ...

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