January 17, 2018

Prison Law Update | PN Lawyers

Pardalis & Nohavicka Prison Law Update: Prison Rule Prohibiting Suicide Watch By Opposite-Sex Officer, Not Discriminatory

Correction Officer Keith Malinowski, worked at an all-women prison in Albion, New York. Even though he had seniority, he was denied an overtime suicide-watch assignment, which was instead given to a female officer.

The reason given for the denial by Corrections was that federal law requires prisons to "implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without non-medical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks." That requirement was put into a Prison Directive.

Officer Malinowski filed a complaint arguing that the rule governing suicide watch procedures constituted an unlawful discriminatory practice under the New York Human Rights Law and the Civil Rights Act of 1964.

Corrections responded that assignment of officers of the same gender as the inmate on special and suicide watches was a bona fide occupational qualification because an inmate under special watch must be placed in a bare cell lacking water or toilet so that the inmate cannot destroy any expelled contraband. Corrections explained that an inmate is under constant watch and will urinate or defecate in front of the officer. The inmate will be seen in a mode of undress or nakedness during those times.

The Court ruled in against the male officer noting that gender discrimination in assignments to special and suicide watches is "reasonably necessary to the normal operation of" the correctional facilities.

Here is the case: Malinowski v New York State Div. of Human Rights


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