Since 2004, the Federal Bureau of Investigation (“FBI”) has required its special agent recruits to pass a physical fitness test (“PFT”), both before admission to and graduation from its academy in Quantico, Virginia.  The PFT consists of four-parts: (1) one-minute of sit-ups, (2) a 300-meter sprint, (3) push-ups to exhaustion, and (4) a 1.5-mile run.  Each part is subject to a gender-based standard.  Under the push-up portion of the PFT, for example, men must do thirty push-ups to pass, while women need only do fourteen.rlee

Enter Jay J. Bauer, a male recruit at the FBI’s academy in 2009.  Although Mr. Bauer passed the PFT to gain admission to the academy, he could not pass the PFT a second time for graduation.  Indeed, Mr. Bauer took the PFT on five separate occasions; each time he would have passed but for his failure to achieve the minimum number of push-ups.  Because he was unable to pass the PFT, he resigned from the academy and took an intelligence analyst position in the FBI’s Chicago Field Office.  Mr. Bauer later sued, however, arguing that the FBI’s gender-based PFT standards violated Title VII’s prohibition against sex discrimination.

The court below agreed with Mr. Bauer, awarding him summary judgment.  On appeal, however, the Fourth Circuit reversed and remanded.  After reviewing pertinent case law, the Fourth Circuit noted that the proper inquiry was not the “but for” element of Mr. Bauer’s claim – i.e., whether the number of push-ups men and women had to complete were the same – but rather, whether, in substance, the gender-based physical fitness standards affected men, like Mr. Bauer, differently than women.  Because the court below had focused on the former inquiry, the Fourth Circuit remanded the case with instructions to apply the following rule: “[A]n employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but imposes an equal burden of compliance on both men and women, requiring the same level of physical fitness of each.”

Employers should glean at least two lessons from Bauer.  First, men and women are not physiologically the same for the purpose of a PFT – and they need not be treated as such, consistent with Bauer.  Second, if you are going to impose different physical fitness standards for male and female employees based on physiological differences, don’t base those standards on a whim – lest you be accused of being stereotypical in your thinking.  Do your homework.  In Bauer, the FBI had (1) recorded the essential tasks of the Special Agent position, noting that nearly half related directly to the agent’s overall physical fitness, (2) considered standards in the exercise physiology industry, and (3) studied the mean performance of men and women under each part of its PFT – e.g., 83.4% of male recruits passed with 30 push-ups and 84.1% of female recruits passed with fourteen push-ups.  And all that was not enough, at least in the discretion of the Fourth Circuit, to hold in favor of the FBI’s gender-based PFT standards in light of Mr. Bauer’s alternative arguments to the lower court.

Now drop and give me thirty – or fourteen – push-ups!

Ben concentrates his practice in the area of labor and employment law, counseling employers and litigating cases under various state and federal employment laws.
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