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Media Alerts - Bauer v. Lynch -- Fourth Circuit
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February 22, 2016
  Bauer v. Lynch -- Fourth Circuit
So Close Yet So Far: One Failed Push Up Has Potential to Change FBI's Fitness Test

Areas of Law: Employment Discrimination, Civil Action

Issue Presented: Whether the gender-normalized requirements of the FBI's physical fitness test is discriminatory?

Brief Summary: In a published opinion before Judges King and Harris, as well as specially designated United States District Judge Hazel for the District of Maryland, the United States Court of Appeals for the Fourth Circuit ("the court") found the district court did not apply the proper legal rule to determine whether the FBI's physical fitness test is discriminatory. The panel of judges vacated the district court's decision and remanded, stipulating that the question to consider on remand is whether the gender-normalized requirements of the physical fitness test treat men in a different manner than women.

Extended Summary:
In 2008, Jay Bauer applied to the FBI. After satisfying background checks, he was able to gain admission to the academy. In order to become an official FBI agent, however, Jay was subject to a 22-week program in Quantico, Virginia, which consisted of four main components, one being physical fitness. The FBI's physical fitness test, which is also referred to as the PFT, was developed by the FBI in 2003 because unfit trainees were getting injured and impeding the recruitment process. The FBI resolved this issue by making trainees pass the PFT twice, once to gain admission to the academy and again to graduate from the academy.

The FBI had a thorough development process for the PFT. It conducted two pilot studies to make sure the PFT was gender neutral. Several statistical analyses were conducted and the FBI determined that there were differences in physical capabilities between the equally fit sexes, so women should be required to pass lower PFT requirements in each of the four categories. After these collective considerations, the final test became the following: Sit-ups: 38 for men, 35 for women; 300-meter sprint: 52.4 seconds men, 64.9 seconds women; Push-ups: 30 men, 14 women; and 1.5 mile run: 12 min. 42 seconds men, 13 min. 59 seconds women.

Jay Bauer was able to successfully complete the PFT to gain admission to the academy. However, he failed to complete the PFT for graduation. More specifically, Jay was able to pass all portions of the PFT other than the push-up requirement. After five failed attempts at the PFT, the last of which he failed by a single push-up, Bauer was forced to resign. The FBI did give him a choice of how he would like to leave: (1) resign with the possibility of future employment; (2) resign permanently; or (3) be fired. Bauer chose the first option and just two weeks later was offered an FBI position as an Intelligence Analyst in Chicago, which he accepted.

On April 2, 2012, Bauer filed a Title VII action against the Attorney General claiming the gender-normed standards of the PFT were facially discriminatory under two Title VII provisions: (1) 42 U.S.C. 2000e-16(a) (prohibits sex discrimination by federal employers); and (2) 42 U.S.C. 2000e-2(1) (prohibits the use of different cutoff scores on employment tests on the basis of sex). This action was ultimately in front of the Eastern District of Virginia. Both parties filed cross-motions for summary judgment and Bauer prevailed. The district court agreed that the PFT was facially discriminatory because if Bauer was a woman, he would have completed the lesser amount of push-ups and passed the test.

The attorney general appealed this decision to the United States Court of Appeals for the Fourth Circuit, arguing that the district court applied an incorrect legal rule when it assessed the FBI's gender-normalized test standards. More specifically, the attorney general argued that the PFT is not facially discriminatory because it took into account the physiological differences that lead to different performance outcomes in men and women and that the gender-normed standards require the same level of fitness for all trainees. As a result, the attorney general argued that the test does not treat the sexes differently and, therefore, does not violate the two Title VII provisions in question.

This court agreed with the attorney general's contention about the difference in physiology of men and women and that the lower court applied the wrong standard. The court explained that "accommodations addressing physiological differences between the sexes are not necessarily unlawful" and that "equally fit men and women demonstrate their fitness differently." As a result, the court vacated and remanded the district court's decision and articulated that the question to be considered on remand is whether the gender-normalized requirements of the physical fitness test treat men in a different manner than women.

To read the full opinion, click here.

Panel: Judges King, Harris, and Hazel

Argument Date: 09/15/2015

Date of Issued Opinion: 01/11/2016

Docket Number: Case No. 14-2323

Decided: Vacated and remanded by published opinion

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Charles W. Scarborough, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Michelle Reese Andrew, ANDREW LAW GROUP LLC, Wilmette, Illinois, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Marleigh D. Dover, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Paul K. Vickrey, NIRO, HALLER & NIRO, Chicago, Illinois; Craig C. Reilly, Alexandria, Virginia, for Appellee.

Author of Opinion: Judge King

Dissenting Opinion:
None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/22/2016 03:46 PM     4th Circuit  

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