Bauer v. Lynch, No. 14-2323 (4th Cir. 2016)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Fourth Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Fourth Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
After plaintiff flunked out of the FBI Academy by failing to perform the required amount of push-ups, he filed suit under Title VII of the Civil Rights Act, 42 U.S.C. 2000e-16(c). Plaintiff alleged that the FBI discriminated against him on the basis of sex, in that female New Agent Trainees were required to complete only fourteen push-ups. The district court granted plaintiff's motion for summary judgment and the Attorney General appealed. The court held that 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 purports to assess physical fitness by imposing the same burden on both men and women, this rule applies to plaintiff’s Title VII claims. The court concluded that the district court erred in failing to apply the rule in its disposition of plaintiff's summary judgment motion. Accordingly, the court vacated the judgment and remanded for further proceedings.
Download PDF
PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2323 JAY J. BAUER, Plaintiff – Appellee, v. LORETTA E. LYNCH, Attorney General, Department of Justice, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:13-cv-00093-TSE-JFA) Argued: September 15, 2015 Decided: January 11, 2016 Before KING and HARRIS, Circuit Judges, and George J. HAZEL, United States District Judge for the District of Maryland, sitting by designation. Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Harris and Judge Hazel joined. ARGUED: Charles W. Scarborough, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Michelle Reese Andrew, ANDREW LAW GROUP LLC, Wilmette, Illinois, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Marleigh D. Dover, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Paul K. Vickrey, NIRO, HALLER & NIRO, Chicago, Illinois; Craig C. Reilly, Alexandria, Virginia, for Appellee. 2 KING, Circuit Judge: For more than ten years, the FBI has measured the physical fitness of its New Agent Trainees (“Trainees”) by using gendernormed standards. In July 2009, plaintiff Jay J. Bauer flunked out of the FBI Academy after falling a single push-up short of the thirty required of male Trainees. Bauer then filed this Title VII civil action, alleging that the FBI had discriminated against him on the basis of sex, in that female Trainees were required to complete only fourteen push-ups. The Attorney General and Bauer filed cross-motions for summary judgment, and the district court granted Bauer’s motion. 25 F. Supp. 3d 842 (E.D. Va. 2014). See Bauer v. Holder, The Attorney General has appealed and, as explained below, we vacate and remand. I. A. The FBI trains its Special Academy in Quantico, Virginia. 1 consists of four main Agent recruits at the FBI The twenty-two week program components that assess Trainees’ proficiency and suitability for FBI service, each of which must 1 Because we are reviewing the district court’s award of summary judgment to Bauer, we recount the facts in the light most favorable to the Attorney General. See Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). 3 be successfully completed to graduate from the Academy: academics; firearms training; practical applications and skills; and defensive tactics and physical fitness. tools are used to ensure that Trainees Various assessment demonstrate adequate proficiency in each component of the Academy’s curriculum. For example, academic training requires successful completion of a series of written examinations. Firearms training requires attendance at training sessions and the successful completion of marksmanship qualifications. Of importance here, all Trainees must pass a physical fitness test (the “PFT”). According thereby to the demonstrate reasons. First, FBI, their a Trainees physical basic level must fitness of pass for physical the PFT two and primary fitness and conditioning leads to strong and injury-free performance at the Academy. and Second, physical fitness supports effective training application tactics of program, the which elements restraining techniques. include taught within self-defense, the defensive combat, and The FBI developed the PFT to ensure that those aims would be satisfied and to identify the Trainees who possess the Special Agent. initiative and perseverance required of a The FBI requires every Special Agent recruit to pass the PFT twice: once to gain admission to the Academy, and a second time to graduate. 4 The FBI has not always utilized the current version of the PFT. Prior physically to fit 2004, for prospective admission timed 1.5-mile run. to Trainees the proved Academy by themselves completing a Once at the Academy, Trainees were required to pass a five-part test, comprised of pull-ups, sit-ups, pushups, a 120-yard shuttle run, and a two-mile run. Despite the use of the 1.5-mile run as an admissions requirement, physically unfit Trainees sometimes gained admission to the Academy. result, some Trainees suffered injuries, and the As a Academy’s instructors spent substantial time coaching Trainees into shape rather than focusing on the Academy’s curriculum. Moreover, because the five-part test had not been formally validated as a physical fitness assessment, the FBI would not dismiss Trainees solely for failing it. Accordingly, in 2003, the FBI decided to develop the PFT, which would be used as a requirement for both admission to and graduation from the Academy, and could be validated as a reliable assessment tool for personnel decisions. To design the new testing protocol, the FBI considered a list of more than 200 essential tasks of the Special Agent position and determined that nearly half of those tasks related directly to overall physical fitness. Supervisory agents in charge of physical training at the Academy offered expertise regarding the types of training events that best served indicators of Trainees’ overall levels of physical fitness. 5 as The FBI also considered industry. Those events, be to sequence: standards deliberations completed in of led a upper exercise the physiology selection test in the of four following one minute of sit-ups; a 300-meter sprint; push-ups demonstrate strength to single to exhaustion; and a 1.5-mile run. to the and body baseline endurance, strength levels The events required Trainees of short-term and endurance, fitness physical and in core muscle and speed, power aerobic capacity and endurance, respectively. With the battery of events selected, the FBI evaluated and developed the minimum standards that Trainees would be required to satisfy in order to pass the PFT. To that end, the FBI implemented the PFT as a pilot program in each of its seven 2003 Academy classes and analyzed the results (the “Pilot Study”). The Pilot Study consisted of 322 Trainees — 258 men and 64 women — who completed the PFT during their first week at the Academy. The Pilot Study statistical results analyses and were then standardized subjected so that to the thorough FBI could compare Trainees both within and across the four events. As a part of the statistical standardization, the FBI sought to normalize testing standards between men and women in order to account for their innate physiological differences. The FBI reasoned that, due to such distinctions, equally fit men and women would perform differently 6 in the same events. Accordingly, the FBI determined that male and female Trainees would be required to complete the four PFT events, but that different minimum standards would be established for each sex. The FBI concluded that use of such a gender-normed framework would have the complementary benefits of allowing the measurement of equivalent fitness levels between men and women while also mitigating the negative impact that would otherwise result from requiring oriented standards. female Trainees to satisfy the male- The practice also aligned with the FBI’s use of gender-normed standards on the predecessor 1.5-mile run and five-part test. After assessing the Pilot Study’s results, the FBI computed the mean result and standard deviations therefrom in each event for each sex. Using that data, the FBI applied a point system to score each of the four events. For each event, Trainees could score one point for achieving the minimum standard, three points for achieving the Pilot Study’s mean, and four or more points for points. above-average achievement, with a maximum of ten To successfully complete the PFT, Trainees had to score at least twelve points across all four events, with at least a single point earned in each event. Trainees who could demonstrate That scoring system allowed only a minimum, below-average level of fitness in one event to compensate by demonstrating above-average fitness in other events. 7 To receive the minimum passing score in each of the four events, Trainees would need to satisfy the following standards, which were fixed at one standard deviation below the Pilot Study’s mean result for each sex: Event Sit-ups 300-meter sprint Push-ups 1.5-mile run Men 38 52.4 seconds 30 12 minutes, 42 seconds Women 35 64.9 seconds 14 13 minutes, 59 seconds The foregoing standards reflected the Pilot Study’s results for the fifteenth percentile in each event, that is, eighty-five percent of Trainees were expected to earn at least one point in each event. Within the push-up event, the FBI found that 84.3% of male Trainees and 84.1% of female Trainees in the Pilot Study achieved the discrepancy minimum passing between the score or passage better. rates Finding the statistically insignificant, the FBI concluded that men and women of equal fitness levels were equally likely to pass the PFT. Beginning in 2004, the FBI adopted the PFT both as an Academy admission criterion and as a graduation requirement for its Trainees. In early 2005, the FBI conducted a second study, evaluating its continued use of the PFT (the “Follow-up Study”). The Follow-up Study analyzed the results from the six 2004 Academy classes and compared them to those from the 2003 Pilot Study. The results of the Follow-up Study showed that male and female Trainees continued to pass the PFT at equivalent rates. 8 More specifically, by the seventh week of the 2004 classes, 90.2% of male Trainees and 89.5% of female Trainees passed the PFT. Like the marginal difference in passage rates in the Pilot Study, the FBI deemed the slight discrepancy in the Follow-up Study to be statistically insignificant. The Follow-up Study also revealed that the 2004 Trainees had passed the PFT at a higher rate than the 2003 challenging Trainees, as suggesting initially that the envisioned. PFT was not Notwithstanding as that revelation, the FBI kept the Pilot Study’s standards in place and continued to use the PFT as a screening test and Academy graduation requirement. B. 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. degree in speech language Having earned a master’s pathology from Northwestern University, he applied to the FBI in 2001, but was rejected due to insufficient work experience. Bauer then continued his studies and earned a Ph.D. in human communication sciences from Northwestern in 2004. He subsequently served as an assistant professor at the University of Wisconsin-Milwaukee. When Bauer reapplied to the FBI in 2008, it was interested in his application. Bauer moved through the applicant screening process with relative ease, passing written tests, completing 9 interviews, and satisfying the requisite background checks. Then the time came for him to successfully complete the PFT to gain admission to the Academy. In October 2008, Bauer took the PFT for the first time and failed. Although he achieved sixteen points on the test, Bauer completed only twenty-five push-ups, five short of the minimum required. retest in January 2009, thirty-two push-ups. and he The FBI allowed Bauer to passed, that time completing With his fitness screening complete, the FBI invited Bauer to report to the Academy on March 1, 2009. Bauer thus resigned his university position and went to Quantico to train with the FBI. Bauer’s time at the Academy largely showed great potential for a career as a Special Agent. He passed all academic tests, demonstrated proficiency in his firearms and defensive tactics training, and applications classmates and also met all skills expectations components selected him of as the the spokesperson for the Academy graduation. faced a dilemma: for the practical Academy. class Bauer’s leader and Unfortunately, Bauer he was unable to pass the PFT at Quantico. During his twenty-two weeks at the Academy, Bauer took the PFT five times. On each occasion, he would have passed but for his achieve failure to the minimum standard for push-ups. Bauer’s results, and his corresponding point scores for each event, were as follows: 10 Week 300-meter sprint 42.6 sec. (8) 43.4 sec. (7) 43.7 sec. (7) 43.8 sec. (7) 44.1 sec. (6) Sit-ups 40 (2) 47 (4) 50 (6) 51 (6) 49 (5) Week 1 Week 7 Week 14 Week 18 Week 22 Following his final 1.5-mile run 10:49 (4) 10:24 (5) 10:45 (4) 11:09 (4) 10:57 (4) Push-ups 26 (0) 25 (0) 28 (0) 27 (0) 29 (0) failure of the PFT, Academy officials to assess his situation. options: Total Points 14 16 17 17 15 Bauer met He was given three (1) resign with the possibility of future employment with the FBI; (2) resign permanently; or (3) be fired. chose the letter. with first option and immediately signed a Bauer resignation Two weeks later, the FBI offered Bauer a position as an Intelligence Analyst in its Chicago Field Office. He accepted and has been employed in that position since 2009. C. On April 2, 2012, Bauer filed this Title VII action in the Northern District of Illinois against the Attorney General. 2 According to the claims in Bauer’s complaint, the FBI’s use of the gender-normed PFT standards contravened two of Title VII’s 2 Pursuant to 42 U.S.C. § 2000e-16(c), Title VII discrimination claims against federal employers may be pursued against “the head of the department.” The Attorney General heads the Department of Justice, which includes the FBI. See 28 U.S.C. §§ 503, 531. 11 provisions: 42 U.S.C. § 2000e-16(a), which prohibits sex discrimination by federal employers 3; and 42 U.S.C. § 2000e-2(l), which prohibits the use of different cutoff scores on employment tests on the basis of sex. 4 On January 4, 2013, the Illinois district court granted the Attorney General’s motion to transfer these proceedings to the Eastern District of Virginia. On November 8, 2013, the Attorney General and Bauer filed cross-motions for summary exhibits. In addition development of the PFT, judgment, to evidence the parties supported by memorializing presented voluminous the reports FBI’s from various experts and sworn statements from individuals involved in the FBI’s statistical analyses of its fitness testing and in the implementation of the PFT at the Academy. To further assist 3 Rather than correctly specifying 42 U.S.C. § 2000e-16(a), Bauer’s complaint alleged a violation of 42 U.S.C. § 2000e-2(a), which deals with discrimination in the private sector. Moreover, the district court analyzed his claim under § 2000e2(a). That is of no moment, however, as we have treated §§ 2000e-2(a) and 2000e-16(a) as comparable, with the liability standards governing the former being applicable to the latter. See, e.g., Brown v. Perry, 184 F.3d 388, 393-94 (4th Cir. 1999) (applying private-sector Title VII principles to discrimination claim against federal employer). 4 Section 2000e-(2)(l)’s discriminatory cutoff score prohibition applies to “a respondent,” which includes a “Federal entity subject to section 2000e-16.” See 42 U.S.C. § 2000e(n). 12 the district court, Bauer and the Attorney General submitted a document called a “Joint Statement of Facts.” 5 In his summary judgment motion, Bauer maintained that the FBI’s use of the gender-normed PFT standards was facially discriminatory, and that the FBI could not justify their use under any lawful defense to Title VII liability. The Attorney General’s summary judgment motion, on the other hand, 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. 6 5 Although nominally entitled as a “Joint Statement of Facts,” only the first ten of the sixty-six pages of that submission by the parties contained undisputed facts. Those ten pages recounted general facts about the Special Agent and Intelligence Analyst positions, Bauer’s application to the FBI, the Academy curriculum, and Bauer’s performance at the Academy and his PFT results. After the first ten pages, Bauer offered twenty-six pages of his “undisputed facts” that the Attorney General either admitted with some qualifications or deemed immaterial, irrelevant, or otherwise disputed. Thereafter the Attorney General offered thirty pages of her own “undisputed facts,” which Bauer likewise admitted with qualifications or deemed immaterial, irrelevant, or otherwise disputed. 6 In her summary judgment request, the Attorney General also asserted that, because Bauer had chosen to resign from the Academy, he had not faced an adverse employment action and thus could not prove employment discrimination. The district court rejected that contention, concluding that the FBI had forced Bauer to choose between termination and resignation. See Bauer, 25 F. Supp. 3d at 853-54. The Attorney General does not challenge that ruling on appeal. 13 D. By its decision of June 10, 2014, the district court agreed with Bauer, granting his motion for summary judgment and denying the Attorney General’s. See Bauer, 25 F. Supp. 3d at 865. The court ruled that, because Bauer would have been required to do fewer push-ups standards had he contravene been a woman, VII’s Title discrimination. the prohibition See id. at 856. determined the that standards gender-normed of PFT sex For the same reason, the court run afoul of Title VII’s bar against the use of different cutoff scores on employment tests. See id. at 859. Having concluded that the PFT standards facially discriminate on the basis of sex, the district court sua sponte examined whether the Attorney General nonetheless possessed a legal defense exceptions. to Title More applicability qualification of VII liability specifically, Title defense the VII’s (the “BFOQ bona under court two considered fide defense”), potential the occupational which allows for differential treatment of men and women if sex “is a bona fide occupational qualification reasonably necessary to the operation of that particular business or enterprise.” U.S.C. § 2000e-2(e). standards could normal See 42 The court also assessed whether the PFT survive under the defense outlined by the Supreme Court in Ricci v. DeStefano (the “Ricci defense”), which 14 permits disparate treatment on the basis of a statutorily protected trait (such as sex) where the employer has “a strong basis in evidence to believe it will be subject to disparateimpact liability” unless it takes discriminatory action. 557 U.S. 557, 585 (2009). Ultimately, rejected the BFOQ and Ricci defenses. at 860 & n.30, 864. 7 the district See court See Bauer, 25 F. Supp. 3d Accordingly, the court ruled that the Attorney General was liable to Bauer for sex discrimination in the FBI’s use of the gender-normed PFT standards. 8 II. The Attorney General has filed a timely notice of appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s award of summary judgment, viewing the facts in the light most favorable to the nonmoving 7 The Attorney defense or the Ricci As explained at oral PFT standards treated General did not pursue either the BFOQ defense in the district court proceedings. argument, she declined to concede that the male and female Trainees unequally. 8 By its subsequent remedial order, the district court awarded Bauer back pay and damages and directed the FBI to reinstate him as a Special Agent. See Bauer v. Holder, No. 1:13-cv-00093 (E.D. Va. Oct. 3, 2014), ECF No. 157. The court also barred the FBI from requiring Bauer to complete the Academy training program again, although it authorized the FBI to impose supplemental training and an age-related physical fitness test. On December 8, 2014, we stayed the remedial order pending this appeal. 15 party. 276 See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, (4th Cir. 2015) (en banc). Summary judgment is not appropriate unless the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). III. A. The Attorney General contends on appeal that the district court erred in granting summary judgment to Bauer, in that the court applied an incorrect legal rule to its assessment of the FBI’s use of the gender-normed PFT standards. Bauer responds that the court applied the correct rule and rightly concluded that the gender-normed PFT discrimination under Title VII. 9 9 standards constitute sex Because this appeal involves a We have recognized that, although “it may be useful to disaggregate the definition of ‘gender’ from ‘sex’ for some purposes” — the former referring to “cultural or attitudinal characteristics distinctive to the sexes, as opposed to their physical characteristics” — courts have frequently “used the term ‘sex’ and ‘gender’ interchangeably to refer simply to the fact that an employee is male or female.” See Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 749 n.1 (4th Cir. 1996). Both biological and cultural differences can give rise to Title VII sex discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) (plurality opinion). Although the FBI’s normalized standards are based on biological differences, we use the term “gender-normed standards” to be consistent with the parties’ use of that term. The term refers to standards like those used in the PFT, which are differentiated based on sex, (Continued) 16 relatively novel issue, we will first identify some pertinent legal authorities, including those on which the Attorney General relies. 1. 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.” Id. § 2000e-2(l). A plaintiff is entitled to demonstrate discrimination by showing that the practice. employer uses a facially discriminatory employment In 1978, the Supreme Court outlined in its Manhart decision what it called a “simple test” for identifying facial sex discrimination: such discrimination appears “where the evidence shows treatment of a person in a manner which but for that person’s sex would be different.” See City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (internal quotation marks omitted); see also Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. but intended to be equivalent as between men and women. Meanwhile, we use the term “sex discrimination” to describe the conduct proscribed by Title VII. 17 Johnson Controls, Inc., 499 U.S. 187, 200 (1991) (explaining Manhart’s “simple test” in sex discrimination litigation). In this proceeding, the district court applied the Manhart test and concluded that, because Bauer would have been held to a lower minimum number gender-normed PFT discrimination. however, that of push-ups had standards The because he been constitute Attorney General the assesses PFT a facial maintains an woman, on overall the sex appeal, level of physical fitness, and equally fit men and women possess innate physiological differences that lead to different performance outcomes, the PFT’s gender-normed standards actually require the same level of fitness for all Trainees. In that way, the Attorney General contends, the PFT standards do not treat the sexes differently and therefore do not contravene Title VII. 2. Among the few decisions to confront the use of gender- normed physical fitness standards in the Title VII context, none has deemed such standards to be unlawful. Of those decisions, the Attorney General primarily relies on Powell v. Reno, No. 962743, 1997 U.S. Dist. LEXIS 24169 (D.D.C. July 24, 1999), and Hale v. Holder, EEOC Dec. No. 570-2007-00423X (Sept. 20, 2010). Of note, Powell and Hale specifically addressed and approved of the FBI’s use of gender-normed standards at the Academy and thus bear directly on this appeal. Those decisions, in turn, relied 18 largely on the Ninth Circuit’s en banc decision in Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982) (en banc), cert. denied, 460 U.S. 1074 (1983). In Powell, the district court assessed the FBI’s pre-PFT, five-part test as part of a Title VII action that was similar to Bauer’s. See 1997 U.S. Dist. LEXIS 24169, at *1. Powell had failed to meet the standards for male Trainees, but contended that he may have passed the test had the FBI applied the “less stringent standards” that applied to female Trainees. Id. at *9. By its 1997 decision, the court rejected that proposition and explained distinctions that based “Title on VII undeniable allows physical employers to differences make between men and women . . . where no significantly greater burden of compliance [is] imposed on either sex.” quotation marks omitted). Id. at *9-10 (internal 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. In Hale — a Id. at *11. more recent proceeding before the Equal Employment Opportunity Commission (the “EEOC”) — the complainant pursued a Title VII claim nearly identical to the one that Bauer sponsors: that of a male New Agent Trainee who failed to meet 19 the PFT’s current male standards. 00423X, slip op. at 2. Hale See EEOC Dec. No. 570-2007- contended that the FBI “held females to less rigorous physical requirements than males” and thus violated discrimination. the approach Title VII’s Id. at 4. taken by proscription against sex The administrative law judge adopted the Powell court and recognized that “distinctions based on the obvious physical differences between men and women” do not per se contravene Title VII. Id. at 4-5. Concluding that the PFT did not impose unequal burdens on either sex, the ALJ rejected Hale’s discrimination claim. Finally, Gerdom involved a Title VII challenge by female flight attendants against their discriminatory weight-limit policy. employer’s allegedly As relevant here, the court of appeals recognized that “physiologically based policies which set a higher maximum weight for men than for women of the same height” would be permissible because “no significantly greater burden of compliance was imposed on either sex.” Id. at 606. That Circuit decision challenges has against requirements. been applied policies in regarding the Ninth weight and to appearance See, e.g., Jespersen v. Harrah’s Operating Co., Inc., 444 F.2d 1104, 1109 (9th Cir. 2006) (en banc). The Powell and Hale decisions each applied Gerdom’s “equally burdensome” test and concluded that the FBI’s gender-normed physical fitness benchmarks did not violate Title VII because they imposed equal 20 burdens of compliance on men and women. See Powell, 1997 U.S. Dist. LEXIS 24169, at *10-11 (citing Gerdom, 692 F.2d at 606); Hale, EEOC Dec. No. 570-2007-0423X, slip op. at 6 (same). 3. Among several other authorities relied upon by the Attorney General, she emphasizes two: one from the Supreme Court and the other from the Third Circuit. See United States v. Virginia (“VMI”), 518 U.S. 515 (1996); Lanning v. Se. Pa. Transp. Auth., 181 F.3d 478 (3d Cir. 1999). Although neither decision directly addressed the Title VII facial discrimination theory pursued by Bauer, the Attorney General posits that both provide insight into when an employer can consider the physiological differences between the sexes. In the VMI case, the Supreme Court ruled that Virginia had violated the Equal Protection Clause by excluding women from admission to its all-male military academy. realities of coeducation, the Court In recognizing the explained “that women’s admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets.” observed 518 U.S. at 540 (emphasis added). by undoubtedly footnote require that “[a]dmitting alterations The Court also women necessary . . . aspects of the physical training programs.” In support of that proposition, 21 the to Court VMI to would adjust Id. at 550 n.19. relied on the 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 individuals.” differences Id. between male and female The Attorney General thus maintains that the VMI decision shows “that some differential treatment of men and women based upon inherent physiological differences is not only lawful but also potentially required.” In Lanning, the Third Circuit Br. of Appellant 29. analyzed a Title VII disparate impact challenge made by female applicants for transit officer positions with the Philadelphia transit authority. 181 F.3d at 484. 10 The applicants challenged the See transit authority’s use of a twelve-minute cutoff requirement for a 1.5mile run on the basis that female applicants failed at rates disproportionately higher than their male counterparts. at 492-93. transit The Third Circuit vacated a ruling in favor of the authority application See id. of and the remanded 10 the district necessity business to defense, court which for it As the Supreme Court has recognized, disparate impact discrimination occurs when a facially neutral employment practice has a significantly discriminatory effect. See Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971). 22 explained thusly: “a discriminatory cutoff score [must] be shown to measure the minimum qualifications necessary for the successful performance of the job in survive a disparate impact challenge.” question in order to Id. at 490. If the transit authority could not show that the twelveminute standard represented the minimum qualification to be a transit officer, and the authority nevertheless wanted to ensure aerobic fitness in its officers, Lanning offered by footnote a suggestion: “institute a non-discriminatory test for excessive levels of aerobic capacity such as a test that would exclude 80% of men as well as 80% of women through separate aerobic capacity cutoffs for the different sexes.” Third Circuit transit Title authority’s VII.” Lanning explained, Id. expressly such fitness The 181 F.3d at 490 n.15. a goals Attorney endorsed solution the would “without General use of achieve running thus As the the afoul contends of that gender-normed physical authorities, we fitness standards under Title VII. B. Having ascertain considered and proceeding. identify the the foregoing rule that is applicable in must this The district court rejected the FBI’s contention that the “no greater burden” test espoused by the Ninth Circuit in Gerdom, and applied by Powell and Hale, authorized the use of the gender-normed PFT standards at the Academy. 23 Instead, the district court relied on the plain language of Title VII and Manhart’s “simple test” for sex discrimination, explaining that, but for Bauer’s sex, he would have been required to complete fourteen push-ups instead of thirty. concluded that discrimination the in gender-normed contravention On that basis, the court standards of Title constitute VII. We sex are constrained to disagree. Men and women simply are not physiologically the same for the purposes of physical fitness programs. The Supreme Court recognized as much in its discussion of the physical training programs addressed in the VMI litigation, albeit in the context of a different legal claim than that presented today. recognized that, although Virginia’s use of The Court “generalizations about women” could not be used to exclude them from VMI, some differences between the sexes were real, therefore could require accommodations. 550 & n.19. not perceived, and See VMI, 518 U.S. at To be sure, the VMI decision does not control the outcome of this appeal. Nevertheless, the Court’s observation therein regarding possible alterations to the physical training programs of the service academies informs our analysis of Bauer’s Title VII claims. That is, physical fitness standards suitable always for men may not be suitable for women, and accommodations addressing physiological differences between the sexes are not necessarily unlawful. 24 See Lanning, 181 F.3d at 490 n.15 (suggesting that use of gender-normed cutoff scores for aerobic capacity would not contravene Title VII); see also Michael M. v. Superior Court of Sonoma Cty., 450 U.S. 464, 469 (1981) (plurality upheld statutes opinion) where (“[T]his the gender Court has consistently classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.”). At bottom, as the Powell and Hale decisions recognized, 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 fitness. men and women to demonstrate different levels of A singular focus on the “but for” element of Bauer’s claim offers the obvious conclusion that the numbers of push-ups men and women must complete are not the same, but skirts the fundamental issue of whether those normalized requirements treat men in a different manner than women. In recognition of that distinction, we agree with the rule enunciated in Powell and in Hale. Put succinctly, an employer does not contravene Title VII when it between utilizes the physical sexes on fitness the basis 25 standards of that their distinguish 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. Accordingly, the district court erred in rule failing to apply the in its disposition of Bauer’s motion for summary judgment. C. Although Bauer has consistently opposed the rule we adopt today, he has argued in the alternative, both on appeal and in the district court, that the rule does not preclude a summary judgment award in his favor. 11 At the same time, the Attorney General urges — under our new rule — that we direct an award of summary judgment to her. Because the district court did not address either Bauer’s alternative contention or the Attorney General’s summary judgment request, we must decide whether to address those matters in the first instance. 11 As his alternative basis for summary judgment, Bauer makes a three-pronged argument. First, he contends that the gender-normed PFT standards are not predicated on any physiological differences between the sexes. Second, he maintains that the standards impose an undue burden of compliance on male Trainees compared to female Trainees. Third, he contends that the standards are not consistent with the minimum performance requirements for Special Agents of the FBI. 26 We are not restricted to resolving an appeal solely on the grounds relied on by the district court. Indeed, we can “affirm on any legal and factual basis fairly presented in the district court and preserved for review.” PHP Healthcare Corp. v. EMSA Ltd. P’ship, 14 F.3d 941, 945 (4th Cir. 1993). although the denial of a summary judgment Furthermore, request “is not independently reviewable,” we can “review such an order when it is appealed with an order granting a cross-motion for summary judgment.” Nat’l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 293 (4th Cir. 1998). And, if the facts are undisputed, “we are free to direct the entry of an order awarding summary judgment to the party whose motion was denied.” Id. This appeal presents an added layer of complexity, however, because the district court awarded summary judgment to Bauer on the basis of circumstance, an the erroneous better legal remedy is standard. usually to determination under the appropriate standard.” Humphrey, 434 F.3d 234, 247 (4th Cir. 2006). true here, where the resolution of In remand such “for a a See Humphrey v. That is certainly Bauer’s alternative contention and the Attorney General’s summary judgment motion requires multiple analyses that the district court is better suited to undertake in the first instance. Of particular significance, there is the potential for problems in the summary 27 judgment record arising from the so-called “Joint Statement of Facts.” See supra note 5. A remand to the district court is therefore our most prudent option. IV. Pursuant to the foregoing, we vacate the judgment of the district court and remand for such other and further proceedings as may be appropriate. VACATED AND REMANDED 28
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
