BAUER v. LYNCH, No. 14-2323

Decided: January 11, 2016

In a Title VII case regarding the physical fitness test (PFT) administered to New Agent Trainees (trainees) at the Federal Bureau of Investigation (FBI), the Fourth Circuit held that the district court did not apply the correct legal rule.  On that basis, the Fourth Circuit vacated the district court’s grant of summary judgment to Bauer, and remanded the case.  

The FBI requires all trainees to pass a PFT twice, once to enter the Academy, and a second time before graduation.  The PFT ensures that trainees are able to meet the demands of the Academy.  Over the years, the FBI has used different measures of physical fitness.  In 2003, the FBI developed the current test, which consists of four elements completed in one test: “one minute of sit-ups; a 300-meter sprint; push-ups to exhaustion; and a 1.5 mile run.  The FBI administered the test to the 2003 classes at the Academy as a pilot program to establish standards, and as part of standard creation process, created different minimum standards for men and women based on the physiological differences between the genders.  Based on the results of the pilot program, the FBI created a point system to score each of the component events.  Trainees achieved one point for meeting the minimum standard, three points for achieving the mean, and four to ten points for above-average performance.  To pass the PFT, trainees had to score 12 points, with at least one point in each event.  The PFT was implemented in 2004.

In October, 2008, Jay Bauer took the PFT to gain entry to the Academy, and failed.  Though he earned 16 points overall, he only completed 25 push-ups, 5 short of the 30 required for men (only 14 push-ups were required for women, and Bauer more than met that number in each of his tests).  He retook the test in January, 2009, and passed.  He did well at the Academy, but despite attempting the PFT five times, he failed to meet the minimum number of push-ups, and thus failed the exam.  The FBI gave him the option to resign and possibly be employed by the FBI in the future, resign permanently, or be fired.  Bauer chose to resign with the possibility of future employment.  Shortly thereafter, the FBI hired him as an Intelligence Analyst.

In April, 2012, Bauer filed suit against the Attorney General, alleging that the FBI violated two provisions of Title VII which prohibited discrimination by federal employers, and the use of “different cutoff scores on employment tests on the basis of sex.”  Bauer and the Attorney General both filed for summary judgment, Bauer alleging that the gender-normed standards of the PFT were facially discriminatory, and the Attorney General claiming that the standards did not discriminate because the burden of compliance with the standards was equal on both sexes.  The District Court granted summary judgment to Bauer.  The Attorney General appealed, arguing that the district court applied the wrong rule to decide the case.

The Fourth Circuit held that the district court applied the wrong rule to the case.  The Fourth Circuit began by noting that there are two different tests which have been developed to decide whether a practice facially discriminates on the basis of sex.  Under City of Los Angeles, Dep’t of Water & Power v. Manhart, a practice is discriminatory when, but for a person’s sex, their treatment would have been different.  Under Gerdom v. Continental Airlines, Inc., a practice is not discriminatory if it applies an equal burden of compliance to both sexes.  The Fourth Circuit noted that the district court here applied the Manhart test.  It also noted that in cases similar to the one here, including two involving the FBI’s PFT (both the current and previous PFT), the courts had not found Title VII violations.  The Court then reasoned that men and women are physically different, and thus a man and a woman who are equally fit may show different results on a fitness test.  Thus, a fitness test would discriminate on the basis of sex if it asked men and women to demonstrate different levels of fitness.  On that basis, the Fourth Circuit held that the equally burdensome test of Gerdom was the correct test to apply to the PFT.  The Fourth Circuit thus vacated the district court’s grant of summary judgment to Bauer, and remanded the case.  

Full Opinion

Katherine H. Flynn

 

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