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.
Originally posted on Virginia Employer Law blog, by Elaine I. Hogan on January 27, 2016.