In employment law, men and women are formally recognized as equally smart, equally capable, equally professional, but not equally strong. Courts often characterize physiological differences between men and women as “inherent”1 or “immutable”2 — biology dictated these differences and left them to the law to accommodate. Enacted in 1964, Title VII3 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.4 The Civil Rights Act of 19915 amended Title VII by adding, among others,6 a provision forbidding the “discriminatory use of test scores” — including the use of “different cutoff scores” for different groups on “employment related tests.”7 Recently, in Bauer v. Lynch,8 the Fourth Circuit weighed in on the FBI’s gender-normed physical fitness test (PFT), which requires men and women to meet different raw cutoff scores. The court held that physical fitness tests that accommodate for sex-based9 physiological differences are not discriminatory as long as they impose equal burdens on men and women by requiring equal levels of fitness.10 Although the Fourth Circuit appropriately took into account the exceptional nature of physical fitness tests, its legal rule lacks clarity and fails to provide adequate guidance in the context of fitness-based employment testing.
In July 2009, Jay Bauer failed out of the FBI Academy.11 A former academic, Bauer applied to be an FBI Special Agent in 2008 and smoothly passed the screening process, which included written tests, interviews, and background checks.12 The next step was a fitness test to gain admission to the training program. The PFT, consisting of sit-ups, a 300-meter sprint, a 1.5-mile run, and push-ups, serves to ensure a basic level of general fitness13 to (1) prevent injury during training and (2) support “effective training and application of the elements taught within the defensive tactics program.”14 All four PFT events were gender-normed according to the results of a 2003 pilot study — men were compared to men, women were compared to women, and different cutoff scores were determined for each group.15 For the push-up event, the passing threshold was set at approximately the fifteenth percentile,16 translating into thirty push-ups for men and fourteen for women.17 Bauer failed his first attempt, completing twenty-five pushups, but passed upon retake.18 In training, he “passed all academic tests, demonstrated proficiency in his firearms and defensive tactics training, and met all expectations for the practical applications and skills components of the Academy.”19 But a second PFT was required to graduate, and Bauer failed on five separate occasions, each time solely due to his inability to do thirty push-ups in a row.20 On his fifth attempt, he fell one short with a completed total of twenty-nine.21 At the end of the twenty-two-week training period, Bauer resigned to preserve the opportunity of future employment with the FBI; two weeks later, he received an offer for an FBI Intelligence Analyst position.22 Bauer brought suit against the FBI, alleging that the PFT’s sex-based cutoff scores constituted Title VII discrimination. The parties subsequently filed cross-motions for summary judgment.23
The district court granted summary judgment to Bauer, holding that the FBI’s gender-normed PFT standards contravened the plain language of § 2000e-2(a)(1) — which prohibits sex-based employment discrimination generally — and § 2000e-2(l) — which prohibits using “different cutoff scores” for “employment related tests.”24 Applying the “simple test” promulgated by City of Los Angeles Department of Water & Power v. Manhart,25 the court concluded that the PFT was discriminatory because it treated Bauer “in a manner which but for his sex would have been different.”26 Furthermore, the PFT’s sex-based minimum standards plainly violated § 2000e-2(l)’s prohibition of “different cutoff scores.” Finally, the court rejected two defenses put forward by the FBI: one based on the bona fide occupational qualification (BFOQ)27 and another based on the Supreme Court’s holding in Ricci v. DeStefano.28
The Fourth Circuit vacated and remanded.29 Writing for the panel, Judge King30 observed that the question of sex discrimination in gender-normed fitness tests is a “relatively novel issue” with limited precedent.31 The court held that the district court erred by applying Manhart’s “simple test” for sex discrimination;32 instead, the PFT should have been analyzed under the “unequal burdens” test espoused by the Ninth Circuit in Gerdom v. Continental Airlines, Inc.33 Accordingly, the relevant question was whether PFT standards “impose[d] an equal burden of compliance on both men and women.”34 Judge King noted that the unequal burdens test, originally developed in the context of differing appearance standards for men and women,35 has been adopted by the U.S. District Court for the District of Columbia and the Equal Employment Opportunity Commission (EEOC), specifically with regard to the FBI’s PFT.36 Additionally, the court pointed to the Supreme Court’s language in United States v. Virginia,37 which contemplated, in dicta, that women’s admission to a military college “would require accommodations . . . [in] physical training programs for female cadets.”38 Since the district court had used an erroneous standard to determine whether sex discrimination had occurred, the Fourth Circuit did not reach the issues of the BFOQ and Ricci defenses.39
Central to the court’s holding was the idea that “[m]en and women simply are not physiologically the same for the purposes of physical fitness programs.”40 Due to innate physiological differences, “equally fit” men and women may not achieve the same raw scores on physical fitness tests.41 Under the Fourth Circuit’s interpretation, the PFT’s different raw score cutoffs for men and women were not necessarily discriminatory: “Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness.”42 The Fourth Circuit did not explicitly approve gender-norming — rather, it instructed the district court to determine on remand whether the gender-normed PFT “impose[d] an equal burden of compliance on both men and women, requiring the same level of physical fitness of each.”43
By holding that men and women must meet the same level of fitness, the Fourth Circuit appropriately recognized the exceptional nature of general fitness testing. This accommodation of sex-based physiological differences is necessary to ensure nondiscriminatory treatment of men and women. The court’s articulation of the unequal burdens test, however, provides more questions than answers and does not clearly instruct how “burden” should relate to “fitness level.”
The Fourth Circuit correctly recognized that general fitness tests, reflecting sex-based physiological differences, should require men and women to achieve equal fitness levels rather than equal raw scores.44 This holding takes into account both the purpose of the PFT to assess general fitness and the purpose of Title VII to prohibit employment discrimination. The goal of the PFT is not to measure how many push-ups a trainee can do. Rather, it is to support safety and success during training at the Academy.45 Before implementing the PFT, the FBI found that an unacceptable number of trainees sustained injuries or failed training events.46 In response, the PFT was designed to assess “the minimum fitness level that would give the FBI a reasonable amount of confidence that a [trainee] could complete the physically demanding [training program] without sustaining a training-related injury.”47 For the FBI’s employment purposes, fitness is a proxy for an applicant’s level of preparedness for training,48 and a well-designed PFT would demonstrate a strong correlation between measured fitness level and future performance in the Academy.
Under this understanding of fitness, equally fit men and women, even if they do unequal numbers of push-ups, are equally qualified for the Academy.49 If “equally fit men and women demonstrate their fitness differently”50 and men are physiologically equipped to do more push-ups, then identical raw score cutoffs would require female trainees to be more physically fit than their male counterparts.51 Such a result — holding women to higher physical fitness standards — would contravene § 2000e-16(a)’s prohibition of employment discrimination, as well as § 2000e-2(l)’s more specific prohibition of discriminatory use of test scores. Section 2000e-2(l) was drafted amid controversy surrounding the employment practice of “subgroup norming,” especially with regard to cognitive aptitude tests,52 in which employees and applicants were scored based on their performance relative to their race and gender groups.53 Congressional discourse criticized its perceived antimeritocratic nature: it was discriminatory to manipulate test scores to hire “less qualified, less productive applicants” on the basis of race or sex.54 By contrast, general fitness tests are fundamentally different from cognitive aptitude tests; because physiological differences cause equally qualified men and women to score differently, sex must be taken into account to ensure nondiscriminatory treatment.
The question on remand should be, do PFT cutoff scores actually require men and women to meet equal fitness levels, by admitting men and women who are equally qualified to safely complete the training program? The Fourth Circuit’s adoption of the unequal burdens test complicates this relatively straightforward inquiry. According to Judge King, the fundamental issue is whether PFT standards “impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each.”55 This language suggests that “fitness” and “burden” are synonymous, or at least compel the same results. What the court leaves open, however, is how “burden” should be independently defined, and how it should influence the analysis of “fitness.”
One possible interpretation is “burden” as conceptualized by the appearance and grooming cases, birthplace of the unequal burdens test.56 Employment practices that hold men and women to different appearance standards are considered discriminatory when they impose unequal economic, physical, or psychological burdens.57 In Frank v. United Airlines, Inc.,58 for example, the Ninth Circuit found that a sex-based weight policy was discriminatory, noting that female employees resorted to unacceptably burdensome measures, “including severely restricting their caloric intake, using diuretics, and purging,” to comply with stricter standards.59 Similarly, when employment policies hold men and women to different grooming standards (such as makeup for women and short hair for men), the time and cost required for compliance are relevant considerations in evaluating burden.60 Under an analogous unequal burdens test, the burden imposed by the PFT could be assessed according to a number of potential factors, including the time spent preparing for the test, the cost of joining a gym, and the physical effort needed to overcome constraints based on musculature. Notably, this test doesn’t directly evaluate applicants’ qualifications — men and women could theoretically invest the same amount of effort to prepare for the PFT, but still fail to be equally prepared or equally likely to avoid injury at the Academy.
Alternatively, “burden” could be understood to mean the likelihood of passing the PFT: if a member of one group is less likely to pass the test, then that group is more burdened by it. This view is implicit in the gender-norming scheme, which assumes that men and women are held to equal burdens as long as they, in the aggregate, can pass the test at approximately equal rates.61 The PFT used the same percentile cutoff for pilot groups of men and women, with the expectation that approximately equal percentages of men and women would continue to meet that threshold.62 Both Bauer and the FBI appear to have understood “burden” this way, but they disagreed on whether there was a statistical difference between the actual passage rates for men and women.63 As in the former variation of the unequal burdens test, this interpretation of “burden” isn’t necessarily reflective of qualification for employment — it’s possible that in order to ensure equal passage rates for men and women, the PFT must require one gender to meet higher fitness levels. Both versions of the test ask the wrong question: whether the PFT is equally difficult for men and women, instead of whether the PFT selects for equally qualified men and women. This line of analysis could potentially require the sex-based differential treatment of equally qualified applicants, a discriminatory outcome under Title VII.64
Ultimately, the only permissible reading of “burden” is the one that deprives it of any independent meaning in this context: burden as defined by fitness. This would mean that as long as men and women must meet the same threshold fitness level — even if it’s more difficult for one group to do so — they’re held to the same burden. This interpretation, of course, would render the unequal burdens test redundant because as long as equal fitness can be demonstrated, equal burdens will be logically deduced. It’s also fundamentally different from the other two variations of the test, in that its focus isn’t the difficulty of the test, but the qualification of the test taker. While this reading would comport with § 2000e–2(l)’s prohibition against discriminatory use of test scores and should be the one adopted on remand, it contravenes the understanding of the parties and finds little support in existing caselaw.65
Physical fitness remains an important consideration in many areas of employment, including the military, law enforcement, and public safety. As the Supreme Court has said: “‘Inherent differences’ between men and women . . . [are not cause] for artificial constraints on an individual’s opportunity.”66 In the context of employment testing, such “artificial constraints” can be eliminated only by recognizing that, while sex-based physiological differences may exist, the crucial question is whether an applicant is qualified for employment.