Gender-Normed Physical Fitness Benchmarks Are Lawful; Male FBI Trainee's Title VII Claim Fails: Fourth Circuit | Practical Law

Gender-Normed Physical Fitness Benchmarks Are Lawful; Male FBI Trainee's Title VII Claim Fails: Fourth Circuit | Practical Law

In Bauer v. Lynch, the US Court of Appeals for the Fourth Circuit held that an employer's gender-normed physical fitness standards might comply with the requirements of Title VII of the Civil Rights Act of 1964 (Title VII) if it imposes an equal burden of compliance on both sexes and requires the same fitness level for each.

Gender-Normed Physical Fitness Benchmarks Are Lawful; Male FBI Trainee's Title VII Claim Fails: Fourth Circuit

by Practical Law Labor & Employment
Published on 19 Jan 2016 • USA (National/Federal)
In Bauer v. Lynch, the US Court of Appeals for the Fourth Circuit held that an employer's gender-normed physical fitness standards might comply with the requirements of Title VII of the Civil Rights Act of 1964 (Title VII) if it imposes an equal burden of compliance on both sexes and requires the same fitness level for each.
On January 11, 2016, in Bauer v. Lynch, the US Court of Appeals for the Fourth Circuit reversed summary judgment and held that the Federal Bureau of Investigation's (FBI) gender-normed physical fitness standards did not violate Title VII when it imposed equal burdens of compliance on men and women and required each to show the same level of fitness ( (4th Cir. Jan. 11, 2016)).

Background

The FBI requires every Special Agent to pass a specific physical fitness test (PFT) to gain entrance to the academy and again to graduate the academy. Jay Bauer passed the PFT to enter the academy and was a strong performer during his training. However, Bauer was unable to complete the 30 push-ups required to pass the PFT again to graduate. Despite performing well in other portions of the PFT, Bauer failed the push-up portion of the test on multiple occasions. After performing 29 push-ups (one short of the requirement) in his fifth attempt, Bauer was offered and accepted an analyst position within the FBI in 2009.
In 2012, Bauer sued the FBI, alleging the bureau's violation of the portions of Title VII prohibiting sex discrimination by federal employees and the use of different cutoff scores on employment tests on the basis of sex. The Attorney General argued in a summary judgment motion that the gender-normed standards did not discriminate against men because the standards imposed equal burdens of compliance on both men and women.
The district court granted summary judgment in favor of Bauer and:
  • Ruled that since Bauer would have been required to do fewer push-ups if he was a woman, the PFT standards violate Title VII's prohibition of:
    • sex discrimination; and
    • the use of different cutoff scores for employment tests.
  • Rejected on its own initiative a defense that the test was a bona fide occupational qualification (BFOQ) and the defense that an employer will be subject to disparate impact liability if it does not take discriminatory action (see Ricci v. DeStefano, 557 U.S. 557, 585 (2009)).
The Attorney General appealed to the Fourth Circuit.

Outcome

The Fourth Circuit reversed summary judgment and remanded the matter back to the district court. The Fourth Circuit noted that:
  • The US Supreme Court has identified a "simple test," stating that facial sex discrimination occurs "where the evidence shows treatment of a person in a manner which but for the person's sex would be different" (City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978)).
  • The few courts that have addressed gender-normed physical fitness standards in a Title VII context have not found the standards to be unlawful. Several cases have directly approved the FBI's use of gender-normed standards at the academy:
    • the Ninth Circuit has applied an "equally burdensome test," under which a policy setting different weight limit standards for men and women is permissible if "no significantly greater burden of compliance was imposed on either sex" (Gerdom v. Continental Airlines, 692 F.2d 602 (9th Cir.1982));
    • the United States District Court for the District of Columbia stated that "Title VII allows employers to make distinctions based on undeniable physical differences between men and women…where no significantly greater burden of compliance is imposed on either sex" (Powell v. Reno, No. 962743, 1997 U.S. Dist. LEXIS 24169 (D.D.C. July 24, 1999) (unpublished)); and
    • an administrative judge in an EEOC matter noted that "distinctions based on the obvious physical differences between men and women" do not violate Title VII (Hale v. Holder, EEOC Dec. No. 570–2007–00423X (Sept. 20, 2010) (unpublished)).
  • Some cases (in a different context) have discussed when an employer can consider physiological differences between the sexes:
    • the Supreme Court stated that standards for women admitted to various service academies "shall be the same as those required for male individuals, except for those minimum essential adjustments in such standards required because of physiological differences between male and female individuals." The Court found that some differences between the sexes were real and could require accommodations (United States v. Virginia (VMI), 518 U.S. 515 (1996)); and
    • the Third Circuit also found no problem with gender-normed standards, suggesting an employer could implement "a non-discriminatory test for excessive levels of aerobic capacity such as a test that would exclude 80% of men as well as 80% of women through separate aerobic capacity cutoffs for the different sexes" (Lanning v. Se. Pa. Transp. Auth., 181 F.3d 478 (3d Cir.1999)).
The Fourth Circuit found that:
  • The district court erred by relying on the plain language of Manhart's "simple test" for sex discrimination and concluding that gender-normed standards violated Title VII.
  • Men and women are not physiologically identical for the purposes of physical fitness programs; equally fit men and women demonstrate fitness differently.
  • Different physical fitness standards may be suitable for the different sexes. Accommodations to account for physiological differences are not unlawful.
  • The innate physiological differences between men and women allowed the FBI to require a man to perform 30 push-ups to prove his fitness and a woman to perform 14 push-ups to prove her fitness.
  • Although the FBI utilized physical fitness standards that distinguished between the sexes on the basis of their physiological differences, it assessed physical fitness by imposing an equal burden of compliance on both sexes, requiring the same physical fitness level for each. Therefore, it did not violate Title VII.

Practical Implications

In Bauer, the Fourth Circuit, addressing a relatively rare issue, noted that while sex discrimination in personnel actions is prohibited, different physical fitness standards for men and women may be permitted when an equal burden of compliance is imposed on both sexes and the same level of physical fitness is required. Employers must walk a fine line between creating lawfully different standards for men and women and creating different standards that are discriminatory towards one sex or the other. This decision places the burden on employers to determine whether the physiological differences between men and women are the type for which an accommodation would be permitted (while requiring the same level of fitness) in order to comply with Title VII, or whether that accommodation itself is unlawful.