By: Mikhail Petrov

On January 11, 2016, in the civil case of Bauer v. Lynch, the Fourth Circuit held 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. Plaintiff Jay J. Bauer was unable to complete his FBI training at the FBI Academy in Quantico, Virginia because he had failed the Personal Fitness Test (“PFT”). He was only one push-up short of passing. Bauer resigned from the Academy and took a job as an intelligence analyst for the FBI. He then brought a Title VII action against the FBI because, while men had to do thirty push-ups to pass the PFT, women had to do only 14. Although Bauer won on summary judgement at the district court level, the Fourth Circuit vacated the lower court’s decision.

Facts  of the Case 

The FBI Academy requires all recruits to pass a Personal Fitness Test (“PFT”), first before being eligible for the FBI Academy and then also during training at the Academy. PFT is required to encourage strong and injury-free performance at the Academy. Additionally, PFT supports effective training and application of the elements taught within the defensive tactics program, which include self-defense, combat, and restraining techniques. The PFT test was designed by the FBI specifically to test the skills that will be vital in the line of duty. The standards for passing the PFT are different for men and women to account for physiological differences. Still, the FBI designed the test so that men and women of equal fitness levels (for their respective sex) were equally likely to pass.

After the attacks of September 11, 2001, Plaintiff Jay J. Bauer resolved to contribute to the defense of our country by becoming a Special Agent in the FBI. Bauer applied to the FBI, but was rejected for a lack of work experience. He applied again in 2008, but was rejected because he was unable to pass the PFT. In 2009, Bauer reapplied and was able to pass the test and be admitted to the FBI Academy. Still, Bauer was required to pass the same PFT again once at the Academy. Although Bauer passed all academic tests, demonstrated proficiency in his firearms and defensive tactics training, and met all expectations for the practical applications and skills components of the Academy, he had failed five times to pass the PFT. On his final attempt, Bauer did twenty-nine push-ups, just one shy of the thirty necessary to pass. If Bauer was a woman, he would only need to do fourteen push-ups to pass that portion of the PFT. Bauer successfully completed the other three activities necessary to pass the PFT.

Procedural History 

On April 2, 2012, Bauer filed this Title VII action. Bauer argued that the FBI’s use of the gender-normed PFT standards contravened two of Title VII’s  provisions: 42 U.S.C. § 2000e-16(a), which prohibits sex discrimination by federal employers and 42 U.S.C. § 2000e-2(l), which prohibits the use of different cutoff scores on employment tests on the basis of sex.

On November 8, 2013, the Attorney General and Bauer filed cross-motions for summary judgment. In his summary judgement motion, Bauer maintained that the FBI’s use of the gender-normed PFT standards was facially discriminatory, and that the FBI could not justify its use under any lawful defense to Title VII liability. The Attorney General’s summary judgment motion contended that the gender-normed PFT standards do not discriminate against male Trainees, in that the standards impose equal burdens of compliance on both sexes

On June 10, 2014, the district court agreed with Bauer, granting his motion for summary judgment and denying the Attorney General’s. The court ruled that, because Bauer would have been required to do fewer push-ups had he been a woman, the gender-normed PFT standards contravene Title VII’s prohibition of sex discrimination. For the same reason, the court determined that the standards run afoul of Title VII’s bar against the use of different cutoff scores on employment tests. The district court determined that neither of two exceptions to this rule applies in this case.

Rules of the Case

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.” 42 U.S.C. § 2000e-16(a). That proscription against sex discrimination also extends to the use of “different cutoff scores for . . . employment related tests.” 42 U.S.C. § 2000e-2(l). A plaintiff is entitled to demonstrate discrimination by showing that the employer uses a facially discriminatory employment practice. In 1978, in City of Los Angeles v. Manhart, the Supreme Court outlined the “simple test” for identifying facial sex discrimination.  Sex discrimination appears “where the evidence shows treatment of a person in a manner which but for that person’s sex would be different.” This was the test applied by the district court.

Yet among the few decisions to confront the use of gender-normed physical fitness standards in the Title VII context, none deemed such standards to be unlawful. Of those decisions, the Attorney General relied primarily on Powell v. Reno and Hale v. Holder. Both cases specifically addressed and approved the FBI’s use of gender-normed standards at the Academy.

In Powell, the court explained that Title VII allows employers to make distinctions based on undeniable physical differences between men and women where no significantly greater burden of compliance is imposed on either sex. Recognizing that physiological differences between the sexes result in males and females of similar fitness levels performing differently on physical tests, the Powell court concluded that the FBI’s gender-normed standards accounted for those differences and did not constitute sex discrimination.

Hale was a proceeding before the Equal Employment Opportunity Commission, where the complainant alleged a Title VII claim nearly identical to Bauer’s. In Hale, a male New Agent Trainee failed to meet the PFT’s male standards. Hale contended that the FBI held females to less rigorous physical requirements than males and thus violated Title VII’s proscription against sex discrimination. The administrative law judge adopted the approach taken by the Powell court and recognized that distinctions based on the obvious physical differences between men and women do not per se violate Title VII.

In United States v. Virginia (“VMI”) the Supreme Court ruled that Virginia had violated the Equal Protection Clause by excluding women from admission to its all-male military academy. The Court recognized that admitting women would undoubtedly require alterations necessary to adjust aspects of the physical training programs. In support of that proposition, the Court relied on the 22 statutory notes placed by Congress into 10 U.S.C. § 4342, which in turn explained that the “academic and other standards” for women admitted to the various service academies “shall be the same as those required for male individuals, except for those minimum essential adjustments in such standards required because of physiological differences between male and female individuals.”

The Reasoning of the Fourth Circuit

The Fourth Circuit disagreed with the district court’s decision to overlook Powell and Hail and apply the plain language of Title VII, as interpreted by Manhart’s “simple test” for sex discrimination. The Fourth Circuit referred to the Supreme Court decision in VMI, discussing that men and women simply are not physiologically the same for the purposes of physical fitness programs. Although the VMI decision was not controlling in this case, it nevertheless informed the Fourth Circuit in its analysis

Both Powell and Hale recognized that the physiological differences between men and women impact their relative abilities to demonstrate the same levels of physical fitness. In other words, equally fit men and women demonstrate their fitness differently. Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness. Thus, an employer does not violate 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 purports to assess physical fitness by imposing the same burden on both men and women, this rule applies to Bauer’s Title VII claims.


The Fourth Circuit held 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. Because the FBI’s PFT required the same level of physical fitness from men and women, even though the actual requirements of the test varied by gender, the FBI it did not violate Title VII. The district court erroneously granted Bauer’s summary judgement against the FBI. The Fourth Circuit vacated the judgment of the district court and remand for further proceedings.