Bauer v. Lynch

Bauer v. Lynch United States Court of Appeals, Fourth Circuit, 812 F.3d 340 (2016).

Facts The Federal Bureau of Investigation (FBI) trains its recruits at the FBI Academy in Quantico,

Virginia. All recruits must pass a physical fitness test (PFT) twice, once to gain admission and

once to graduate.

Jay Bauer was admitted to the academy after passing the PFT on a second attempt—three

months after his initial application. At the academy, Bauer passed all academic tests,

demonstrated proficiency in firearms and defensive tactics, and met all expectations for

practical applications and skills. His classmates selected him as class leader and spokesperson

for graduation. Before the ceremony, however, Bauer was unable to pass the PFT’s minimum

requirement of thirty push-ups for men. (For women, the minimum was only fourteen push-

ups.) Following this PFT failure, Bauer resigned and did not graduate. Two weeks later, the FBI

offered him a position as an intelligence analyst, which he accepted.

Bauer filed a suit in a federal district court against Loretta Lynch, the U.S. attorney general,

alleging discrimination on the basis of gender in violation of Title VII. The court issued a

summary judgment in Bauer’s favor. The attorney general appealed.

Issue Did the FBI’s use of the different PFT standards for men and women constitute discrimination

on the basis of gender in violation of Title VII?

Decision No. The FBI did not violate Title VII by requiring PFT standards that distinguish between the

sexes. The U.S. Court of Appeals for the Fourth Circuit vacated the lower court’s judgment and

remanded the case for further proceedings.

Reason An employer does not violate Title VII by requiring fitness standards that distinguish between

the sexes on the basis of “physiological differences” if the standards “impose an equal burden

of compliance on both men and women.” Some differences between the sexes are real, not

perceived, and therefore may require accommodation. “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.”

Thus, different employment criteria for men and women satisfy Title VII’s standard of equality

when fitness is a requirement. The federal appellate court stated, “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.”

Critical Thinking Question:

Critical Thinking

• Legal Environment In what other circumstances might the use of different employment

standards for men and women be acceptable and not violate Title VII’s requirement for

equality?