FBI’s 30 Push-Up Requirement Discriminates Against Men

Male Trainee Fails The PFT Seven Times

Jeff Bauer, a male FBI special agent trainee, scored at or near the top of his class at everything from academics to firearms training, but failed the FBI’s gender-normed physical fitness test seven times. On his last attempt, Bauer could only complete twenty-nine of the thirty required push-ups. Being just one push-up short of the male requirement, Bauer was given two options: resign from special agent training or be terminated. He chose to resign and sued the FBI for gender discrimination claiming the PFT violated Title VII of the Civil Rights Act of 1964 (Title VII).

The Court’s Decision Finds The PFT Violates Title VII

In Bauer v. Holder, the Eastern District of Virginia District Court agreed with Bauer, ruling that the FBI’s PFT violates Title VII. The Court made clear its ruling does not mean standards can never differ based on sex. In certain circumstances, physiological differences between men and women should be taken into consideration, and many times they are, without violating Title VII. However, when standards for men and women differ they must have a rational basis.

Title VII requires gender-normed PFT’s to measure job-related skills and aptitudes. The Court found the FBI’s push-up test measured the upper-body strength required for lifting and pushing but did not focus on actual job tasks such as carrying objects weighing a certain number of pounds. Put differently, it did not measure “qualifications affecting an employee’s ability to do the job”. Accordingly, the Court found the differing standards for men and women lacked a rational basis.

Practical Impact Of Bauer v. Holder

Many individuals think of female plaintiffs in gender discrimination cases. However, we believe this case is a reminder that the law applies equally to men and women. Employers must have a rational reason for treating men and women differently.

Many employers use physical fitness tests with different standards or passing scores for male and female candidates. Under the Court’s ruling in Bauer, these employers should consider revising their fitness criteria to test actual job tasks rather than an arbitrary number of repetitions of an isolated strength test. If you have been unjustly discriminated against due to your gender, contact the Cincinnati employment lawyers at Robert A. Klingler Co., L.P.A. immediately to discuss your case.