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Legal Update: Gender-Normed Testing Standards

18 Feb 2016 1:10 PM | Walter Porr (Administrator)

Bauer v. Lynch (4th Cir. Jan. 11, 2016)
Gender-Normed Physical Test Standards
Summary by Chad Smith, student at the Moritz College of Law - The Ohio State University

ISSUE
Is the FBI’s practice of using gender-normed standards for a measure of physical fitness a violation of Title VII? According to the plaintiff in Bauer v. Lynch, it is alleged that the FBI’s practice of having separate push-up requirements for both males and females is a violation of civil rights under Title VII. Bauer v. Lynch, No. 14-2323, (4th Cir. Jan. 11, 2016). 

BRIEF ANSWER
Based on the opinion of the United States District Court for the Eastern District of Virginia, the practice is a violation. However, the United States Court of Appeals for the Fourth Circuit has vacated and remanded the decision for further proceedings. Because of this, at least in the interim, the practice has been upheld. Bauer v. Holder, 25 F. Supp. 3d 842 (E.D. Va. 2014).

RATIONALE
The policy at issue is that 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. Bauer v. Lynch, No. 14-2323, (4th Cir. Jan. 11, 2016). The FBI reasoned that, due to such distinctions, equally fit men and women would perform differently in the same events. With that, male recruits at the academy are required to complete more push-ups than female recruits. Bauer v. Lynch, No. 14-2323, (4th Cir. Jan. 11, 2016).

Though the Appeals Court agrees that the standards are facially discriminatory, they found that no prior decision confronting the use of gender-normed physical fitness standards in the Title VII context has deemed such standards to be unlawful. 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 placed on either sex.” Powell v. Reno, No. 96-2743, 1997 U.S. Dist. LEXIS 24169

RULE
“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 in 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.” Bauer v. Lynch, No. 14-2323, (4th Cir. Jan. 11, 2016).

WHAT’S NEXT
The Appeals Court in this case has vacated the District Court’s summary judgment verdict for Bauer. Further, the Appeals Court remands to the District Court on the basis that the District Court reviewed the case and granted summary judgment on an improper legal standard. With that, Bauer’s summary judgment is vacated and the case is remanded for review under the standard set forth by the Appeals Court, and the motion for summary judgment by the United States is to be reconsidered by the District Court.



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