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Federal District Court Judge Rules that FBI Physical Fitness Test with differing standards for Men and Women Constitutes Illegal Gender Discrimination Under Title VII

Virginia Federal District Court Judge T.S. Ellis granted a disappointed FBI candidate summary judgment in his lawsuit against the FBI for requiring that he pass a physical fitness test which required higher physical standards for men. See Bauer v. Holder, 2014 U.S. Dist. LEXIS 80130, Case No. 1:13-cv-93 (E.D. Va., June 10, 2014)

Jay Bauer applied for a position as a special agent for the FBI. Among the requirements for admission into the FBI as a special agent is passing a physical fitness test measuring sit-ups, push-ups and two running tests. The test had separate gender-normed requirements, apparently to take into account “physiological differences” between men and women. According to the FBI, these physical requirements “serve as a foundation for his/her ability to effectively apply principles and non-deadly force alternatives being taught in the [defensive tactics] program.” Mr. Bauer repeatedly failed certain portions of this physical fitness test, yet his score was higher than what was required of women to pass the test. Ultimately, Mr. Bauer was given the choice to resign from the FBI or be ultimately terminated.

Bauer sued the FBI, alleging that the FBI’s separate standards for men and women constituted illegal discrimination based on sex under Title VII of the Civil Rights Act. Although Judge Ellis indicated that such gender-normed physical fitness tests may be acceptable if the FBI intended to test the basic fitness of FBI cadets, Judge Ellis also agreed with the plaintiff in striking down this test because the physical fitness test was designed to assess the physical abilities of cadets to perform certain job related tasks, and both men and women were required to perform the same tasks. The fact that existing FBI agents are not required to pass any physical fitness tests also detracts from the FBI’s argument that the physical abilities measured in the test were required for serving as a special agent.

Employers should be wary when requiring applicants to pass gender-normed physical fitness tests. Although such tests may be acceptable in some circumstances, requiring differing standards for men and women will not likely pass muster under Title VII if the test is intended to measure the performance of similar job tasks.