an SHTA does not implicate patient privacy interests, it is clear that an SHTA of any gender will be able to successfully accomplish its job. However, if the patient's naked body must be viewed or the patient requires assistance with personal hygiene, then the availability of an SHTA of the same gender ensures that the privacy interests of the patient are respected. Thus, defendants suggest that having one SHTA of the same gender is the minimum that can be done to safeguard the privacy of the patients.
Plaintiffs dispute this. First, they contend that there were no studies conducted prior to the implementation of the policy which indicated the need for the presence of a same-sex SHTA on the ward. There is no requirement in the law, however, that formal studies be conducted to ascertain the need for a BFOQ nor have plaintiffs pointed us to any authority for this proposition. Plaintiffs' argument that there was never a belief that an SHTA was prevented from performing his or her job duties because of gender, See Motion, Dep. of Cardinal, at 88 ("Nobody said anyone was incapable of performing the duties of the position."), misses the point. When privacy issues are at stake, the focus on job performance in a vacuum is incorrect. The question is not whether the SHTA can perform the duties of a job regardless of his or her sex but whether that SHTA can satisfactorily respect the privacy of a patient in the performance of his or her job. We believe the answer to that question is "not always" when the SHTA is the opposite gender of the patient.
Plaintiffs also contend that the defendants failed to explore reasonable alternatives to protect patient privacy other than gender staffing. However, the record indicates that MHPC made changes to the physical plant whenever possible and could not come up with any other means to address the patients' privacy needs other than the institution of some gender-based assignment system. Cross-Motion, Aff. of Tekben, P10. In addition, it is evident that the union participated in discussions of the policy and had the opportunity to bring up alternative proposals. None were made. Id., P12; Dep. of Barber, at 93 (stating that seniority was the sole issue in the labor-management discussions of the gender-based assignment policy and that neither the local nor the statewide union made any alternative proposals to MHPC).
Additionally, plaintiffs assert that the privacy needs of the patients are overstated by the defendants. For example, plaintiffs assert that the instances in which an SHTA would be asked to clean a patient are extremely rare. See Deposition of Stephen Barber, at 26 (testifying that in his nine years of employment at MHPC, he has never participated in washing a patient's genitals). However, an SHTA is present when a nurse or physician is cleaning the patient and when a patient is being strip searched. Although the record is vague concerning how many times an SHTA would be present at such a washing, or have to toilet a patient or take a patient into the shower to wash him or her, it remains clear from the record that these incidents do happen and are not rare occasions, and that such tasks are within the scope of the SHTAs' responsibilities.
To address this problem, plaintiffs suggest that if the task to be performed requires the presence of an SHTA of the same gender as the patient in order to secure the patient's privacy, the SHTA can be assigned from either the float pool
or transferred from another ward temporarily. The feasibility of this suggestion is questionable. Although some of the SHTAs' duties which implicate a patient's privacy are not emergencies, some are. Reassignment takes time and is highly impracticable as it would require frequent temporary reassignments of staff, would reduce the effiency of operations, and would not maximize MHPC's ability to assure the privacy of the patients in emergencies. Cross-Motion for Summary Judgment, Exh. P, Tekben Aff., P12. In addition, it is questionable whether the SHTAs would welcome frequent reassignments.
Thus, having an SHTA of the same gender as the patients on the ward present ensures that emergencies implicating a patient's privacy interests can be satisfactorily addressed quickly.
Plaintiffs argue that the curtains and partitions in the showers and bathrooms adequately protect the interests of the patients which is true except when the SHTA has to deal with an emergency in those facilities. Patients fight in the shower and must be separated. Cross-Motion, Dep. of Barber, at 28, 37. Moreover, though the patient is not directly observed while showering, he or she, while undressing, does not do so in complete privacy. Here, plaintiffs note correctly that curtains can be placed on the observation windows of the bedrooms to secure the patients' privacy. But this does not address the problem of the patient who must be continually observed or who must be assisted in undressing. In addition, patients disrobe in an open area before actually stepping into the shower. Thus, they can be observed by an SHTA of the opposite sex before closing the shower curtain. Cross-Motion, Dep. of Walsh, at 81-82. OMH contends that it has made all possible adjustments to the MHPC physical plant to address the privacy needs of its patients -- other than suggesting curtains on the bedroom windows, plaintiffs have not proposed any other alterations which would safeguard the privacy interests of the patients at all times.
To address the bedcheck problem, plaintiffs suggest that patients can wear pajamas, issued by the state, if necessary. This solution was found to be a reasonable alternative in the prison context. See Forts, 621 F.2d at 1217. We do not believe that state-issued pajamas presents a viable option here, however. This case concerns mental patients who, unlike the prisoners in Forts, may not have the capacity to control their behavior nor understand fully the ramifications of choosing not to wear pajamas. Compare, id., 621 F.2d at 1217 ("We do [not] agree that any legally enforceable rights of inmates sufficient to impair employment rights can arise from an inmate's preference for sleepwear of her choice or for none at all."). Moreover, there is still the chance that during the night, bedclothes will become disarrayed, revealing a body part normally kept under wraps and we do not accept the idea that the privacy rights of mental patients are reduced because of their confinement, unlike a prisoner's. Additionally, we note that patients begin to go to bed between 9:00 p.m., Motion, Exh. M, Dep. of Walsh, at 52, and 1:00 a.m., id., Exh. W, at 46; patients begin arising at 6:45 a.m., id.; they may nap from 1:30 to 2:30 p.m. SHTAs are staffed on the wards in three shifts: the first shift goes from 6:45 a.m. to 3:00 p.m.; second shift is 2:45 p.m. to 11 p.m.; and the third shift is 10:45 p.m. to 7 a.m. Thus, bedchecks must be made at least during the second and third shifts, and possibly during the first. In addition, it appears that the first shift SHTAs would have to deal with the hygiene problems that are confronted upon rising in the morning and with bedchecks during a nap. This duty, even standing alone, would justify the presence of a same-sex SHTA on the ward at all times.
Plaintiffs additionally argue that of all the members of the treatment team, only the SHTA is subjected to gender requirements. They point out that male wards are staffed by female nurses, female wards have male psychiatrists. This, plaintiffs argue, supports their position that there is no need for gender-based assignments of the SHTAs. We disagree for several reasons. First, nurses and psychiatrists are trained medical personnel who are presumed to be objective when viewing the human body by virtue of their training. Second, nurses and psychiatrists are not on the wards continually as the SHTAs. Only the SHTAs are present in the wards twenty-four hours a day. Finally, only the SHTAs are responsible for checking the patients who are sleeping and the routine physical maintenance of the patient.
We believe that requiring the presence on the ward of at least one SHTA of the same gender as the patients is the least restrictive method to safeguard the privacy rights of the patients while respecting the SHTAs contractual right to bid for job assignments. The record is clear that there are potentially interactions between a patient and an SHTA which could violate the patient's privacy. The gender-based assignment policy strikes a balance between the patients' privacy interests and the right of SHTAs to bid for position. Thus, we find that the requirement that at least one SHTA of the same gender as the patients be assigned to the ward is permissible under Title VII.
THE OVERTIME ISSUE
Defendants acknowledge that an effect of the gender-based staffing policy is that sometimes an SHTA volunteering for overtime will be precluded from an assignment if the policy requires that a SHTA of another gender be assigned. But, the same reasons making gender a BFOQ for the staffing of SHTAs make gender a BFOQ for overtime assignments. When there is need for an SHTA of a particular gender so that the gender-based staffing policy may be satisfied, an SHTA of that gender is selected from the overtime lists. If there is no need for an SHTA of a particular gender because the gender-based assignment policy has been satisfied, then gender is not the basis for making an overtime assignment. Notice of Motion, Exh. Z, at 35-37. Thus, if there is not at least one SHTA of the same gender as the patients on the ward, the privacy interests of the patients dictate that an SHTA of the same gender be selected from the overtime lists.
Summary judgment is granted in favor of the defendants. Plaintiffs' motion for summary judgment is denied. The clerk will enter judgment in favor of the defendants.
Dated: White Plains, N.Y.
March 16, 1992
GERARD L. GOETTEL