One More Push-Up:  Fourth Circuit Okays Gender Differences in Certain Physical Fitness TestsCan an employer have different physical fitness standards for men and women without running afoul of Title VII? Yes, according to the Fourth Circuit that ruled that the FBI could reject a male agent candidate who failed his physical fitness test by not being able to do one additional push-up. Plaintiff Bauer sued the Department of Justice claiming that he had been discriminated against on the basis of his sex because the FBI applied a higher physical fitness requirement to him than to female candidates. The FBI claimed that it had established separate testing standards for men and women based on their innate physiological differences. Male candidates were required to do 30 push-ups, while women wanting to be special agents were required to do only 14. Plaintiff Bauer took the physical fitness test five different times, but failed each time by not being able to meet the push-up number.

Bauer filed his action under Title VII claiming that the FBI’s standards were facially discriminatory by using different cutoff scores on employment tests on the basis of sex. The FBI responded that the gender-normed standards imposed equal burdens of compliance on both sexes. The district court agreed with Bauer and went on to find the gender-specific physical fitness requirements were not part of a bona fide occupational qualification defense.

The Fourth Circuit disagreed and cited two prior decisions that specifically approved the FBI’s use of gender-normed standards. In those decisions, the courts found 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 imposed on either sex.” The Court also examined two other high-profile cases: the U.S. Supreme Court’s VMI decision on admission of women cadets and the Third Circuit’s Lanning opinion which addressed female candidates to the Philadelphia transit authority. In the VMI case, the Supreme Court expressly recognized that the admission of females to that institution would “undoubtedly require alterations necessary… adjust aspects of the physical training programs.” In Lanning, the Third Circuit suggested that the transit authority change its unisex physical fitness tests (that excluded a higher percentage of female candidates) to a test that would equally exclude the same percentage of male and female applicants “through separate aerobic capacity cutoffs for the different sexes.” The Fourth Circuit concluded that “men and women simply are not physiologically the same for purposes of physical fitness programs.” Therefore, accommodations addressing physiological differences between the sexes are not necessarily unlawful. Equally fit men and women demonstrate their fitness differently. Therefore, whether a physical fitness test is discriminatory depends on whether it requires men and women to demonstrate different levels of fitness. An employer does not violate Title VII by using physical fitness tests that distinguish between the sexes, as long as it imposes an equal burden of compliance on both sexes.

Although this opinion includes some broad language embracing the fact that there are inherent differences between men and women, employers cannot use those as the basis for facially discriminatory policies in other areas. This opinion is limited to physical fitness tests and appears to allow for differences by sex in that area, as long as the employer shows it puts equal burdens on both men and women for compliance. However, you can see where this may lead to a slippery slope of defenses based on the physiological differences between the sexes.