Drop and Give Me Thirty (Or Fourteen If You’re a Woman)—Is This Discrimination?

Posted on January 27, 2016

the situation

Physical fitness is a necessary component for certain jobs in your organization and so you develop a physical fitness assessment for prospective employees. Based on a thorough analysis of gender norms and abilities, you determine specific standards—which are different for men and women. A male is unable to complete one of the tasks and claims the differing standards constitute discrimination. Could he have a claim under Title VII?

the ruling

Maybe not—if you can show that the physical fitness standards you are using distinguish between the sexes on the basis of their physiological differences, but still impose an equal burden of compliance on both men and women (so require the same level of physical fitness for each). Bauer v. Lynch, No. 14-2323 (4th Cir. January 11, 2016).   In reaching this conclusion, the Fourth Circuit reversed the decision of the district court in which summary judgment was awarded to the plaintiff on his claim of sex discrimination under Title VII (reported by Virginia Employer Law on August 1, 2014).

Bauer was a male FBI trainee. When he was only able to complete 29 of the 30 push-ups required as part of the FBI’s physical fitness test (which included four individual tests with different standards for men and women) and thus could not graduate from the FBI Academy, he claimed that he was discriminated against on the basis of his sex in violation of Title VII.

In granting summary judgment to the plaintiff, the district court had concluded that it was not finding that gender-normed fitness tests are per se illegal under Title VII or per se legal, but that in this case, because the FBI had failed to establish that its physical fitness test was an adequate measure of job-related skills and aptitudes, it could not justify the differing standards under Title VII.

However, the Fourth Circuit found that the district court was using the wrong rule. As the Fourth Circuit explained, “the physiological differences between men and women impact their relative abilities to demonstrate the same levels of physical fitness.” Therefore, “whether physical fitness standards discriminate based on sex, depends on whether they require men and women to demonstrate different levels of fitness. The problem with the district court’s use of a “simple test” for determining if there was discrimination (whether, but for the plaintiff’s sex, he would have been required to perform a lower number of push-ups) is that it ignores the issue of whether these normalized requirements are actually treating men differently than women. The real issue, explained the court, is whether the FBI is imposing an equal burden of compliance on both men and women and requiring the same level of physical fitness from each. The court sent it back to the district court for such a determination.

the point

Even though the district court had not held that these kinds of differing fitness tests for women and men were necessarily unlawful, it was still a concerning ruling for employers who generally rely on physical fitness measurements. The Fourth Circuit’s ruling provides some helpful guidance to employers—as long as any physical fitness requirements for men and women are imposing an equal burden and demanding the same level of fitness from each, even if they are different, such requirements can still be in line with Title VII.

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