Although the 10 th U.S. Circuit Court of Appeals threw out a lower court’s decision in favor of the El Paso County Sheriff’s Department on the discrimination issue, it backed the lower court in dismissing former Deputy Linda Piercy’s claim that her firing constituted unlawful termination. The agency said she was fired for wearing a tongue stud that violated the dress code at the Colorado prison where she worked.
In her suit, Piercy alleged that the firing had been in retaliation for her complaints about job transfer opportunities that were offered only to male employees.
Writing for the appellate court, Circuit Judge Timothy M. Tymkovich asserted that because the policy limiting transfers to one of the prison facilities to male employees constituted a facially discriminatory practice, the defendants had the burden to show that gender was a bona fide occupational qualification for the position.
The lower court had concluded that the reservation of job transfers from one jail to another for males only was not discriminatory because the jobs were substantially similar and denial of a lateral transfer was not an adverse job action. The defendants had also argued that the policy was necessitated by conditions at the two facilities involved, one of which housed all male inmates and another which housed male and female inmates.
However, the appeals court also found that “the differences in duties between the two prisons are sufficiently substantial” to preclude the district court’s finding that a transfer from one to the other would be purely lateral.
The appeals court sent the case back to the district court to consider evidence on the transfer policy.
The appellate ruling in Piercy v. Maketa, No. 05-1192 10th Cir., (March 27, 2007) is here .