Different fitness standards for men and women don't necessarily violate Title VII, says the Fourth Circuit

Bauer v. Lynch, No. 14-2323 (4th Cir. Jan 11, 2016).

Marine recruits during physical-fitness training (credit: flickr / MCRD Parris Island, SC)

Marine recruits during physical-fitness training (credit: flickr / MCRD Parris Island, SC)

FBI Special Agents must graduate from the FBI Academy. As part of its graduation requirements, the Academy requires its trainees to meet a number of fitness standards. These standards are “gender-normed,” i.e., they’re different for men and women. The Academy, for example, requires 30 push-ups from male trainees, and 14 from female trainees. Male trainee Jay Bauer completed only 29 push-ups, and was denied graduation. The FBI gave him a job, but not as a Special Agent.

Bauer has sued under Title VII, asserting that the fitness requirements unlawfully discriminate on the basis of sex. And they do discriminate, in the sense that they distinguish between men and women. But that, the Fourth Circuit says, isn’t enough to be unlawful. There are obvious physiological differences between men and women, so that equally fit men and women demonstrate their fitness differently. The question, then, is whether the burden that the FBI’s standards put on men and women is equal. 

The district court didn’t answer this question, and instead applied a different legal standard when it granted summary judgment to Bauer. So the Fourth Circuit remands the case to the district court to apply the correct legal standard to the facts of this case.