While many (if not most) employers don’t need to worry about a physical fitness training program, the Federal Bureau of Investigation (FBI) does. And recently, it had to defend differing standards in training between men and women. This raises an interesting and more inclusive question: can training be discriminatory?
A court case recently had to address the question of if employers are allowed to use different physical fitness standards for men and women during training. Here’s what the court had to say.
After the September 11, 2001, terrorist attacks, “Grayson” decided he wanted to become a special agent in the FBI. He applied but was rejected.
After earning a PhD in human communication sciences and landing a job as an assistant professor at the University of Wisconsin, Grayson reapplied to the FBI in 2008. He passed written tests, completed interviews, and went through background checks but failed the physical fitness test (PFT) in October 2008 because he completed only 25 push-ups instead of the required 30. When he was allowed to take the test again in January 2009, he did 32 push-ups.
Having successfully passed the PFT, Grayson resigned his university position and reported to the FBI Academy in Quantico, Virginia, on March 1, 2009. While in a 22-week training program there, he passed all academic tests, demonstrated proficiency in his firearms and defensive tactics training, and met all expectations for the practical application and skills components of the Academy. His fellow new agent trainees selected him as the class leader and spokesperson for their graduation.
However, all new agent trainees are required to pass the PFT for admission to—and graduation from—the Academy. Grayson did not pass the test a second time. Although he exceeded the minimum requirements for male trainees for sit-ups, the 300-meter sprint, and the 1.5-mile run each of the five times he took the PFT during training, he continued to fall short on the push-up requirement. On his last attempt, he did 29 push-ups instead of the 30 required for male trainees.
Female trainees are required to complete 14 push-ups and, in the other parts of the PFT, to meet minimum standards that also are lower than the minimum requirements for male trainees.
Long before Grayson entered the Academy, the FBI had conducted statistical analyses and standardized the PFT scores for male and female trainees to account for their physiological differences. The agency had found that the discrepancy between passage rates was statistically insignificant and had concluded that men and women of equal fitness levels were equally likely to pass the PFT.
After Grayson failed his last PFT, he was given the option of resigning with the possibility of future employment with the FBI, resigning permanently, or being fired. He chose the first option and, 2 weeks later, accepted a position as an intelligence analyst in the FBI’s Chicago Field Office.
Grayson later filed suit, claiming that the FBI’s use of gender-normed PFT standards violated two provisions of Title VII of the Civil Rights Act of 1964 in that the standards discriminated on the basis of sex and used different cutoff scores on employment tests on the basis of sex.
In district court, the government argued that the PFT standards do not discriminate against male trainees because the standards impose equal burdens of compliance on both sexes—that is, the PFT standards do not treat male and female trainees differently.
The district court ruled in favor of Grayson, saying the gender-normed PFT standards violated Title VII’s prohibition of sex discrimination and its bar against the use of different cutoff scores on employment tests. The government appealed to the U.S. Court of Appeals for the 4th Circuit, which includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
What the Court Said
The appeals court sided with the government, vacating the decision and sending the case back to district court.
“Men and women simply are not physiologically the same for the purposes of physical fitness programs,” the court said. “… [P]hysical fitness standards suitable for men may not always be suitable for women, and accommodations addressing physiological differences between the sexes are not necessarily unlawful.”
The court went on to explain that those “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.”
An employer does not violate Title VII when it uses different physical fitness standards for men and women on the basis of their physiological differences, if the standards “impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each,” the court said.
Bauer v. Lynch (No. 14-2323) (U.S. Court of Appeals, 4th Circuit, 1/11/16)
Generally speaking, male and female trainees should be assessed against the same standards—whether they are taking a written test, demonstrating their proficiency in a new skill, or being evaluated on applying what they learned. However, if they are required to pass a physical fitness test, they may be held accountable to different standards if you can show that the standards “impose an equal burden of compliance” on all trainees.