By Kathleen Kapusta, J.D. Men and women simply are not physiologically the same for the purposes of physical fitness programs, declared the Fourth Circuit, finding that physical fitness standards suitable for men may not always be suitable for women and accommodations addressing physiological differences between the sexes are not necessarily unlawful. Accordingly, the court reversed summary judgment on the Title VII claim of a male FBI trainee who, after flunking out of the FBI academy when he failed the physical fitness test, alleged that the FBI discriminated against him on the basis of sex by applying different standards for female trainees (Bauer v. Lynch, January 11, 2016, King, R.). When the trainee applied to the FBI in 2008, the FBI required trainees to pass a physical fitness test (PFT) twice, once to gain admission to the academy and a second time to graduate. Adopted in 2004, the test set different minimum standards for men and women to account for their innate physiological differences. For example, while men were required to complete 30 push-ups and 38 sit-ups, sprint 300 meters in 52.4 seconds, and run 1.5 miles in 12 minutes, 42 seconds, women were required to complete 14 push-ups and 35 sit-ups, sprint 300 meters in 64.9 seconds, and run 1.5 miles in 13 minutes, 59 seconds. In adopting the different standards, the FBI concluded that men and women of equal fitness levels were equally likely to pass the PFT. Different standards. Although the trainee moved through the applicant screening process with relative ease, he failed the physical fitness test (PFT) on his first attempt, completing only 25 of the required 30 push-ups. On a retest, he completed 32 push-ups, thus gaining admission to the academy. But he was unable to pass the PFT for graduation. After taking and failing it five times, he resigned. Two weeks later, he was offered a position as an intelligence analyst, which he accepted. He then sued, contending that the FBI’s use of the gender-normed PFT standards contravened Title VII provisions against sex discrimination by federal employers and the use of different cutoff scores on employment tests on the basis of sex. Ruling that the because the plaintiff would have been required to do fewer push-ups had he been a woman, the gender-normed PFT standards contravened Title VII’s prohibition of sex discrimination, the district court granted his motion for summary judgment and denied the attorney general’s. Novel issue. This appeal involved a relatively novel issue, said the Fourth Circuit, noting that Title VII requires that any “personnel actions affecting employees or applicants for employment” taken by federal employers “shall be made free from any discrimination based on ... sex.” The proscription against sex discrimination also extends to the use of “different cutoff scores for ... employment related tests.” Examining the few decisions to confront the use of gender-normed physical fitness standards in the Title VII context, the court found that none had deemed a gender-normed standard to be unlawful. After considering different decisions, the appeals court observed that the district court relied on the plain language of Title VII and the “simple test” for identifying facial sex discrimination outlined in the Supreme Court’s City of Los Angeles, Dep’t of Water & Power v. Manhart decision: Sex discrimination appears “where the evidence shows treatment of a person in a manner which but for that person’s sex would be different.” While the lower court found that but for the plaintiff’s sex, he would have been required to complete 14 push-ups instead of 30 and that gender-normed standards constitute sex discrimination in contravention of Title VII, the appeals court disagreed. Physiological differences are real. The appeals court then noted the Supreme Court’s decision in United States v. Virginia (VMI), where the Court recognized, in the context of a different legal claim, that though Virginia’s use of “generalizations about women” could not be used to exclude them from VMI, some differences between the sexes were real, not perceived, and could require accommodations. While the VMI decision was not controlling, the Supreme Court’s discussion of possible alterations to the physical training programs of the service academies informed the Fourth Circuit’s analysis. “That is,” said the court, “physical fitness standards suitable for men may not always be suitable for women, and accommodations addressing physiological differences between the sexes are not necessarily unlawful.” Equal burden. Equally fit men and women demonstrate their fitness differently, the court observed. Whether physical fitness standards discriminate based on sex depends on whether they require men and women to demonstrate different levels of fitness. A singular focus on the “but for” element of the plaintiff’s claim offered the obvious conclusion that the numbers of push-ups men and women must complete are not the same, but it skirted the fundamental issue of whether those normalized requirements treat men differently from women, said the court. “Put succinctly, an employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each.” Because the FBI purported to assess physical fitness by imposing the same burden on both men and women, this rule applied to the plaintiff’s Title VII claims. Accordingly, the district court erred in failing to apply the rule when it granted summary judgment in favor of the plaintiff. Because the district court awarded summary judgment to him on the basis of an erroneous legal standard, the court remanded to the district court for further consideration.
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