Jay Bauer v. Eric Holder, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-00093-TSE-JFA. [999733118]. [14-2323]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2323

JAY J. BAUER,
Plaintiff – Appellee,
v.
LORETTA E. LYNCH, Attorney General, Department of Justice,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:13-cv-00093-TSE-JFA)

Argued:

September 15, 2015

Decided:

January 11, 2016

Before KING and HARRIS, Circuit Judges, and George J. HAZEL,
United States District Judge for the District of Maryland,
sitting by designation.

Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Harris and Judge Hazel joined.

ARGUED: Charles W. Scarborough, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant.
Michelle Reese
Andrew, ANDREW LAW GROUP LLC, Wilmette, Illinois, for Appellee.
ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Marleigh D. Dover,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellant.
Paul K. Vickrey, NIRO, HALLER & NIRO,

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Chicago, Illinois; Craig C. Reilly, Alexandria, Virginia, for
Appellee.

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KING, Circuit Judge:
For more than ten years, the FBI has measured the physical
fitness of its New Agent Trainees (“Trainees”) by using gendernormed standards.

In July 2009, plaintiff Jay J. Bauer flunked

out of the FBI Academy after falling a single push-up short of
the thirty required of male Trainees.

Bauer then filed this

Title VII civil action, alleging that the FBI had discriminated
against him on the basis of sex, in that female Trainees were
required

to

complete

only

fourteen

push-ups.

The

Attorney

General and Bauer filed cross-motions for summary judgment, and
the district court granted Bauer’s motion.
25 F. Supp. 3d 842 (E.D. Va. 2014).

See Bauer v. Holder,

The Attorney General has

appealed and, as explained below, we vacate and remand.

I.
A.
The

FBI

trains

its

Special

Academy in Quantico, Virginia. 1
consists

of

four

main

Agent

recruits

at

the

FBI

The twenty-two week program

components

that

assess

Trainees’

proficiency and suitability for FBI service, each of which must

1

Because we are reviewing the district court’s award of
summary judgment to Bauer, we recount the facts in the light
most favorable to the Attorney General.
See Rossignol v.
Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003).

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be

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completed

successfully

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graduate

to

from

the

Academy:

academics; firearms training; practical applications and skills;
and defensive tactics and physical fitness.
tools

are

used

to

ensure

that

Trainees

Various assessment
demonstrate

adequate

proficiency in each component of the Academy’s curriculum.

For

example, academic training requires successful completion of a
series

of

written

examinations.

Firearms

training

requires

attendance at training sessions and the successful completion of
marksmanship qualifications.

Of importance here, all Trainees

must pass a physical fitness test (the “PFT”).
According
thereby

to

the

demonstrate

reasons.

First,

FBI,

their
a

Trainees
physical

basic

level

must
fitness

of

pass
for

physical

the

PFT

two

and

primary

fitness

and

conditioning leads to strong and injury-free performance at the
Academy.
and

Second, physical fitness supports effective training

application

tactics

of

program,

the
which

elements

restraining techniques.

include

taught

within

self-defense,

the

defensive

combat,

and

The FBI developed the PFT to ensure

that those aims would be satisfied and to identify the Trainees
who

possess

the

Special Agent.

initiative

and

perseverance

required

of

a

The FBI requires every Special Agent recruit to

pass the PFT twice:

once to gain admission to the Academy, and

a second time to graduate.

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The FBI has not always utilized the current version of the
PFT.

Prior

physically

to

fit

2004,
for

prospective

admission

timed 1.5-mile run.

to

Trainees

the

proved

Academy

by

themselves

completing

a

Once at the Academy, Trainees were required

to pass a five-part test, comprised of pull-ups, sit-ups, pushups, a 120-yard shuttle run, and a two-mile run.

Despite the

use of the 1.5-mile run as an admissions requirement, physically
unfit Trainees sometimes gained admission to the Academy.
result,

some

Trainees

suffered

injuries,

and

the

As a

Academy’s

instructors spent substantial time coaching Trainees into shape
rather than focusing on the Academy’s curriculum.

Moreover,

because the five-part test had not been formally validated as a
physical fitness assessment, the FBI would not dismiss Trainees
solely for failing it.

Accordingly, in 2003, the FBI decided to

develop the PFT, which would be used as a requirement for both
admission

to

and

graduation

from

the

Academy,

and

could

be

validated as a reliable assessment tool for personnel decisions.
To design the new testing protocol, the FBI considered a
list

of

more

than

200

essential

tasks

of

the

Special

Agent

position and determined that nearly half of those tasks related
directly to overall physical fitness.

Supervisory agents in

charge of physical training at the Academy offered expertise
regarding

the

types

of

training

events

that

best

served

indicators of Trainees’ overall levels of physical fitness.
5

as
The

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FBI

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also

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considered

industry.

Those

events,

be

to

sequence:

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standards

deliberations

completed

in

of
led

a

upper

exercise

the

physiology

selection

test

in

the

of

four

following

one minute of sit-ups; a 300-meter sprint; push-ups

demonstrate

strength

to

single

to exhaustion; and a 1.5-mile run.
to

the

and

body

baseline

endurance,

strength

levels

The events required Trainees
of

short-term

and

endurance,

fitness
physical
and

in

core

muscle

and

speed,

power

aerobic

capacity

and

endurance, respectively.
With the battery of events selected, the FBI evaluated and
developed the minimum standards that Trainees would be required
to satisfy in order to pass the PFT.

To that end, the FBI

implemented the PFT as a pilot program in each of its seven 2003
Academy classes and analyzed the results (the “Pilot Study”).
The Pilot Study consisted of 322 Trainees — 258 men and 64 women
— who completed the PFT during their first week at the Academy.
The

Pilot

Study

statistical

results

analyses

and

were

then

standardized

subjected
so

that

to

the

thorough
FBI

could

compare Trainees both within and across the four events.
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.

The FBI reasoned that, due to such distinctions, equally fit men
and

women

would

perform

differently
6

in

the

same

events.

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Accordingly, the FBI determined that male and female Trainees
would be required to complete the four PFT events, but that
different minimum standards would be established for each sex.
The FBI concluded that use of such a gender-normed framework
would

have

the

complementary

benefits

of

allowing

the

measurement of equivalent fitness levels between men and women
while also mitigating the negative impact that would otherwise
result

from

requiring

oriented standards.

female

Trainees

to

satisfy

the

male-

The practice also aligned with the FBI’s

use of gender-normed standards on the predecessor 1.5-mile run
and five-part test.
After assessing the Pilot Study’s results, the FBI computed
the mean result and standard deviations therefrom in each event
for each sex.

Using that data, the FBI applied a point system

to score each of the four events.

For each event, Trainees

could score one point for achieving the minimum standard, three
points for achieving the Pilot Study’s mean, and four or more
points

for

points.

above-average

achievement,

with

a

maximum

of

ten

To successfully complete the PFT, Trainees had to score

at least twelve points across all four events, with at least a
single point earned in each event.
Trainees

who

could

demonstrate

That scoring system allowed

only

a

minimum,

below-average

level of fitness in one event to compensate by demonstrating
above-average fitness in other events.
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To receive the minimum passing score in each of the four
events, Trainees would need to satisfy the following standards,
which

were

fixed

at

one

standard

deviation

below

the

Pilot

Study’s mean result for each sex:
Event
Sit-ups
300-meter sprint
Push-ups
1.5-mile run

Men
38
52.4 seconds
30
12 minutes, 42 seconds

Women
35
64.9 seconds
14
13 minutes, 59 seconds

The foregoing standards reflected the Pilot Study’s results for
the fifteenth percentile in each event, that is, eighty-five
percent of Trainees were expected to earn at least one point in
each event.

Within the push-up event, the FBI found that 84.3%

of male Trainees and 84.1% of female Trainees in the Pilot Study
achieved

the

discrepancy

minimum

passing

between

the

score

or

passage

better.
rates

Finding

the

statistically

insignificant, the FBI concluded that men and women of equal
fitness levels were equally likely to pass the PFT.

Beginning

in 2004, the FBI adopted the PFT both as an Academy admission
criterion and as a graduation requirement for its Trainees.
In early 2005, the FBI conducted a second study, evaluating
its

continued

use

of

the

PFT

(the

“Follow-up

Study”).

The

Follow-up Study analyzed the results from the six 2004 Academy
classes and compared them to those from the 2003 Pilot Study.
The results of the Follow-up Study showed that male and female
Trainees continued to pass the PFT at equivalent rates.
8

More

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specifically, by the seventh week of the 2004 classes, 90.2% of
male Trainees and 89.5% of female Trainees passed the PFT.

Like

the marginal difference in passage rates in the Pilot Study, the
FBI deemed the slight discrepancy in the Follow-up Study to be
statistically insignificant.

The Follow-up Study also revealed

that the 2004 Trainees had passed the PFT at a higher rate than
the

2003

challenging

Trainees,
as

suggesting

initially

that

the

envisioned.

PFT

was

not

Notwithstanding

as
that

revelation, the FBI kept the Pilot Study’s standards in place
and continued to use the PFT as a screening test and Academy
graduation requirement.
B.
After the attacks of September 11, 2001, plaintiff Jay J.
Bauer resolved to contribute to the defense of our country by
becoming a Special Agent in the FBI.
degree

in

speech

language

Having earned a master’s

pathology

from

Northwestern

University, he applied to the FBI in 2001, but was rejected due
to

insufficient

work

experience.

Bauer

then

continued

his

studies and earned a Ph.D. in human communication sciences from
Northwestern in 2004.

He subsequently served as an assistant

professor at the University of Wisconsin-Milwaukee.
When Bauer reapplied to the FBI in 2008, it was interested
in his application.

Bauer moved through the applicant screening

process with relative ease, passing written tests, completing
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interviews,

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and

satisfying

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the

requisite

background

checks.

Then the time came for him to successfully complete the PFT to
gain admission to the Academy.

In October 2008, Bauer took the

PFT for the first time and failed.

Although he achieved sixteen

points on the test, Bauer completed only twenty-five push-ups,
five short of the minimum required.
retest

in

January

2009,

thirty-two push-ups.

and

he

The FBI allowed Bauer to

passed,

that

time

completing

With his fitness screening complete, the

FBI invited Bauer to report to the Academy on March 1, 2009.
Bauer thus resigned his university position and went to Quantico
to train with the FBI.
Bauer’s time at the Academy largely showed great potential
for a career as a Special Agent.

He passed all academic tests,

demonstrated proficiency in his firearms and defensive tactics
training,

and

applications
classmates

and
also

met

all

skills

expectations

components

selected

him

of

as

the
the

spokesperson for the Academy graduation.
faced a dilemma:

for

the

practical

Academy.
class

Bauer’s

leader

and

Unfortunately, Bauer

he was unable to pass the PFT at Quantico.

During his twenty-two weeks at the Academy, Bauer took the
PFT five times.

On each occasion, he would have passed but for

his

achieve

failure

to

the

minimum

standard

for

push-ups.

Bauer’s results, and his corresponding point scores for each
event, were as follows:
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Week

Filed: 01/11/2016

300-meter
sprint
42.6 sec.
(8)
43.4 sec.
(7)
43.7 sec.
(7)
43.8 sec.
(7)
44.1 sec.
(6)

Sit-ups
40
(2)
47
(4)
50
(6)
51
(6)
49
(5)

Week 1
Week 7
Week 14
Week 18
Week 22

Following

his

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final

1.5-mile
run
10:49
(4)
10:24
(5)
10:45
(4)
11:09
(4)
10:57
(4)

Push-ups
26
(0)
25
(0)
28
(0)
27
(0)
29
(0)

failure

of

the

PFT,

Academy officials to assess his situation.
options:

Total
Points
14
16
17
17
15

Bauer

met

He was given three

(1) resign with the possibility of future employment

with the FBI; (2) resign permanently; or (3) be fired.
chose

the

letter.

with

first

option

and

immediately

signed

a

Bauer

resignation

Two weeks later, the FBI offered Bauer a position as an

Intelligence Analyst in its Chicago Field Office.

He accepted

and has been employed in that position since 2009.
C.
On April 2, 2012, Bauer filed this Title VII action in the
Northern

District

of

Illinois

against

the

Attorney

General. 2

According to the claims in Bauer’s complaint, the FBI’s use of
the gender-normed PFT standards contravened two of Title VII’s

2

Pursuant
to
42
U.S.C.
§ 2000e-16(c),
Title
VII
discrimination claims against federal employers may be pursued
against “the head of the department.”
The Attorney General
heads the Department of Justice, which includes the FBI.
See
28 U.S.C. §§ 503, 531.

11

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provisions:

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42

U.S.C.

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§ 2000e-16(a),

which

prohibits

sex

discrimination by federal employers 3; and 42 U.S.C. § 2000e-2(l),
which prohibits the use of different cutoff scores on employment
tests on the basis of sex. 4

On January 4, 2013, the Illinois

district court granted the Attorney General’s motion to transfer
these proceedings to the Eastern District of Virginia.
On November 8, 2013, the Attorney General and Bauer filed
cross-motions

for

summary

exhibits.

In

addition

development

of

the

PFT,

judgment,

to

evidence

the

parties

supported

by

memorializing
presented

voluminous
the

reports

FBI’s
from

various experts and sworn statements from individuals involved
in the FBI’s statistical analyses of its fitness testing and in
the implementation of the PFT at the Academy.

To further assist

3

Rather than correctly specifying 42 U.S.C. § 2000e-16(a),
Bauer’s complaint alleged a violation of 42 U.S.C. § 2000e-2(a),
which
deals
with
discrimination
in
the
private
sector.
Moreover, the district court analyzed his claim under § 2000e2(a).
That is of no moment, however, as we have treated
§§ 2000e-2(a) and 2000e-16(a) as comparable, with the liability
standards governing the former being applicable to the latter.
See, e.g., Brown v. Perry, 184 F.3d 388, 393-94 (4th Cir. 1999)
(applying private-sector Title VII principles to discrimination
claim against federal employer).
4

Section
2000e-(2)(l)’s
discriminatory
cutoff
score
prohibition applies to “a respondent,” which includes a “Federal
entity subject to section 2000e-16.” See 42 U.S.C. § 2000e(n).

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the district court, Bauer and the Attorney General submitted a
document called a “Joint Statement of Facts.” 5
In his summary judgment motion, Bauer maintained that the
FBI’s

use

of

the

gender-normed

PFT

standards

was

facially

discriminatory, and that the FBI could not justify their use
under any lawful defense to Title VII liability.

The Attorney

General’s summary judgment motion, on the other hand, contended
that the gender-normed PFT standards do not discriminate against
male Trainees, in that the standards impose equal burdens of
compliance on both sexes. 6

5

Although nominally entitled as a “Joint Statement of
Facts,” only the first ten of the sixty-six pages of that
submission by the parties contained undisputed facts. Those ten
pages recounted general facts about the Special Agent and
Intelligence Analyst positions, Bauer’s application to the FBI,
the Academy curriculum, and Bauer’s performance at the Academy
and his PFT results.
After the first ten pages, Bauer offered
twenty-six pages of his “undisputed facts” that the Attorney
General either admitted with some qualifications or deemed
immaterial, irrelevant, or otherwise disputed.
Thereafter the
Attorney General offered thirty pages of her own “undisputed
facts,” which Bauer likewise admitted with qualifications or
deemed immaterial, irrelevant, or otherwise disputed.
6

In her summary judgment request, the Attorney General also
asserted that, because Bauer had chosen to resign from the
Academy, he had not faced an adverse employment action and thus
could not prove employment discrimination.
The district court
rejected that contention, concluding that the FBI had forced
Bauer to choose between termination and resignation. See Bauer,
25 F. Supp. 3d at 853-54.
The Attorney General does not
challenge that ruling on appeal.

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D.
By its decision of June 10, 2014, the district court agreed
with Bauer, granting his motion for summary judgment and denying
the Attorney General’s.

See Bauer, 25 F. Supp. 3d at 865.

The

court ruled that, because Bauer would have been required to do
fewer

push-ups

standards

had

he

contravene

been

a

woman,
VII’s

Title

discrimination.

the

prohibition

See id. at 856.

determined

the

that

standards

gender-normed
of

PFT
sex

For the same reason, the court
run

afoul

of

Title

VII’s

bar

against the use of different cutoff scores on employment tests.
See id. at 859.
Having

concluded

that

the

PFT

standards

facially

discriminate on the basis of sex, the district court sua sponte
examined whether the Attorney General nonetheless possessed a
legal

defense

exceptions.

to

Title

More

applicability
qualification

of

VII

liability

specifically,
Title

defense

the

VII’s

(the

“BFOQ

bona

under
court

two

considered

fide

defense”),

potential
the

occupational

which

allows

for

differential treatment of men and women if sex “is a bona fide
occupational

qualification

reasonably

necessary

to

the

operation of that particular business or enterprise.”
U.S.C. § 2000e-2(e).
standards

could

normal
See 42

The court also assessed whether the PFT

survive

under

the

defense

outlined

by

the

Supreme Court in Ricci v. DeStefano (the “Ricci defense”), which
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permits

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disparate

treatment

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on

the

basis

of

a

statutorily

protected trait (such as sex) where the employer has “a strong
basis in evidence to believe it will be subject to disparateimpact liability” unless it takes discriminatory action.
557

U.S.

557,

585

(2009).

Ultimately,

rejected the BFOQ and Ricci defenses.
at 860 & n.30, 864. 7

the

district

See
court

See Bauer, 25 F. Supp. 3d

Accordingly, the court ruled that the

Attorney General was liable to Bauer for sex discrimination in
the FBI’s use of the gender-normed PFT standards. 8

II.
The Attorney General has filed a timely notice of appeal,
and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

We

review de novo a district court’s award of summary judgment,
viewing the facts in the light most favorable to the nonmoving

7

The Attorney
defense or the Ricci
As explained at oral
PFT standards treated

General did not pursue either the BFOQ
defense in the district court proceedings.
argument, she declined to concede that the
male and female Trainees unequally.

8

By its subsequent remedial order, the district court
awarded Bauer back pay and damages and directed the FBI to
reinstate him as a Special Agent.
See Bauer v. Holder, No.
1:13-cv-00093 (E.D. Va. Oct. 3, 2014), ECF No. 157.
The court
also barred the FBI from requiring Bauer to complete the Academy
training program again, although it authorized the FBI to impose
supplemental training and an age-related physical fitness test.
On December 8, 2014, we stayed the remedial order pending this
appeal.

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See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264,

(4th

Cir.

2015)

(en

banc).

Summary

judgment

is

not

appropriate unless the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled
to judgment as a matter of law.

See Fed. R. Civ. P. 56(a).

III.
A.
The Attorney General contends on appeal that the district
court erred in granting summary judgment to Bauer, in that the
court applied an incorrect legal rule to its assessment of the
FBI’s use of the gender-normed PFT standards.

Bauer responds

that the court applied the correct rule and rightly concluded
that

the

gender-normed

PFT

discrimination under Title VII. 9

9

standards

constitute

sex

Because this appeal involves a

We have recognized that, although “it may be useful to
disaggregate the definition of ‘gender’ from ‘sex’ for some
purposes” — the former referring to “cultural or attitudinal
characteristics distinctive to the sexes, as opposed to their
physical characteristics” — courts have frequently “used the
term ‘sex’ and ‘gender’ interchangeably to refer simply to the
fact that an employee is male or female.” See Hopkins v. Balt.
Gas & Elec. Co., 77 F.3d 745, 749 n.1 (4th Cir. 1996).
Both
biological and cultural differences can give rise to Title VII
sex discrimination.
See Price Waterhouse v. Hopkins, 490 U.S.
228, 250-51 (1989) (plurality opinion).
Although the FBI’s
normalized standards are based on biological differences, we use
the term “gender-normed standards” to be consistent with the
parties’ use of that term.
The term refers to standards like
those used in the PFT, which are differentiated based on sex,
(Continued)
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relatively novel issue, we will first identify some pertinent
legal authorities, including those on which the Attorney General
relies.
1.
Title VII requires that any “personnel actions affecting
employees

or

applicants

for

employment”

taken

by

federal

employers “shall be made free from any discrimination based on
. . . sex.”

42 U.S.C. § 2000e-16(a).

That proscription against

sex discrimination also extends to the use of “different cutoff
scores for . . . employment related tests.”

Id. § 2000e-2(l).

A plaintiff is entitled to demonstrate discrimination by showing
that

the

practice.

employer

uses

a

facially

discriminatory

employment

In 1978, the Supreme Court outlined in its Manhart

decision what it called a “simple test” for identifying facial
sex

discrimination:

such

discrimination

appears

“where

the

evidence shows treatment of a person in a manner which but for
that person’s sex would be different.”

See City of Los Angeles,

Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978)
(internal quotation marks omitted); see also Int’l Union, United
Auto.,

Aerospace

&

Agric.

Implement

Workers

of

Am.,

UAW

v.

but intended to be equivalent as between men and women.
Meanwhile, we use the term “sex discrimination” to describe the
conduct proscribed by Title VII.

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Johnson Controls, Inc., 499 U.S. 187, 200 (1991) (explaining
Manhart’s “simple test” in sex discrimination litigation).
In this proceeding, the district court applied the Manhart
test and concluded that, because Bauer would have been held to a
lower

minimum

number

gender-normed

PFT

discrimination.
however,

that

of

push-ups

had

standards

The
because

he

been

constitute

Attorney

General

the

assesses

PFT

a

facial

maintains
an

woman,

on

overall

the
sex

appeal,
level

of

physical fitness, and equally fit men and women possess innate
physiological

differences

that

lead

to

different

performance

outcomes, the PFT’s gender-normed standards actually require the
same

level

of

fitness

for

all

Trainees.

In

that

way,

the

Attorney General contends, the PFT standards do not treat the
sexes differently and therefore do not contravene Title VII.
2.
Among

the

few

decisions

to

confront

the

use

of

gender-

normed physical fitness standards in the Title VII context, none
has deemed such standards to be unlawful.

Of those decisions,

the Attorney General primarily relies on Powell v. Reno, No. 962743, 1997 U.S. Dist. LEXIS 24169 (D.D.C. July 24, 1999), and
Hale v. Holder, EEOC Dec. No. 570-2007-00423X (Sept. 20, 2010).
Of note, Powell and Hale specifically addressed and approved of
the FBI’s use of gender-normed standards at the Academy and thus
bear directly on this appeal.

Those decisions, in turn, relied
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largely on the Ninth Circuit’s en banc decision in Gerdom v.
Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982) (en
banc), cert. denied, 460 U.S. 1074 (1983).
In Powell, the district court assessed the FBI’s pre-PFT,
five-part test as part of a Title VII action that was similar to
Bauer’s.

See 1997 U.S. Dist. LEXIS 24169, at *1.

Powell had

failed to meet the standards for male Trainees, but contended
that he may have passed the test had the FBI applied the “less
stringent standards” that applied to female Trainees.

Id. at

*9.

By its 1997 decision, the court rejected that proposition

and

explained

distinctions

that

based

“Title

on

VII

undeniable

allows
physical

employers

to

differences

make

between

men and women . . . where no significantly greater burden of
compliance [is] imposed on either sex.”
quotation

marks

omitted).

Id. at *9-10 (internal

Recognizing

that

physiological

differences between the sexes “result in males and females of
similar

fitness

levels

performing

differently

on

physical

tests,” the Powell court concluded that the FBI’s gender-normed
standards accounted for those differences and did not constitute
sex discrimination.
In

Hale

—

a

Id. at *11.
more

recent

proceeding

before

the

Equal

Employment Opportunity Commission (the “EEOC”) — the complainant
pursued a Title VII claim nearly identical to the one that Bauer
sponsors:

that of a male New Agent Trainee who failed to meet
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the PFT’s current male standards.
00423X,

slip

op.

at

2.

Hale

See EEOC Dec. No. 570-2007-

contended

that

the

FBI

“held

females to less rigorous physical requirements than males” and
thus

violated

discrimination.
the

approach

Title

VII’s

Id. at 4.

taken

by

proscription

against

sex

The administrative law judge adopted

the

Powell

court

and

recognized

that

“distinctions based on the obvious physical differences between
men and women” do not per se contravene Title VII.

Id. at 4-5.

Concluding that the PFT did not impose unequal burdens on either
sex, the ALJ rejected Hale’s discrimination claim.
Finally, Gerdom involved a Title VII challenge by female
flight

attendants

against

their

discriminatory weight-limit policy.

employer’s

allegedly

As relevant here, the court

of appeals recognized that “physiologically based policies which
set a higher maximum weight for men than for women of the same
height” would be permissible because “no significantly greater
burden of compliance was imposed on either sex.”

Id. at 606.

That

Circuit

decision

challenges

has

against

requirements.

been

applied

policies

in

regarding

the

Ninth

weight

and

to

appearance

See, e.g., Jespersen v. Harrah’s Operating Co.,

Inc., 444 F.2d 1104, 1109 (9th Cir. 2006) (en banc).

The Powell

and Hale decisions each applied Gerdom’s “equally burdensome”
test and concluded that the FBI’s gender-normed physical fitness
benchmarks did not violate Title VII because they imposed equal
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burdens of compliance on men and women.

See Powell, 1997 U.S.

Dist. LEXIS 24169, at *10-11 (citing Gerdom, 692 F.2d at 606);
Hale, EEOC Dec. No. 570-2007-0423X, slip op. at 6 (same).
3.
Among several other authorities relied upon by the Attorney
General, she emphasizes two:

one from the Supreme Court and the

other from the Third Circuit.

See United States v. Virginia

(“VMI”), 518 U.S. 515 (1996); Lanning v. Se. Pa. Transp. Auth.,
181 F.3d 478 (3d Cir. 1999).

Although neither decision directly

addressed the Title VII facial discrimination theory pursued by
Bauer, the Attorney General posits that both provide insight
into when an employer can consider the physiological differences
between the sexes.
In the VMI case, the Supreme Court ruled that Virginia had
violated the Equal Protection Clause by excluding women from
admission to its all-male military academy.
realities

of

coeducation,

the

Court

In recognizing the

explained

“that

women’s

admission would require accommodations, primarily in arranging
housing assignments and physical training programs for female
cadets.”
observed

518 U.S. at 540 (emphasis added).
by

undoubtedly

footnote
require

that

“[a]dmitting

alterations

The Court also

women

necessary

. . .

aspects of the physical training programs.”
In

support

of

that

proposition,
21

the

to

Court

VMI
to

would
adjust

Id. at 550 n.19.
relied

on

the

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statutory notes placed by Congress into 10 U.S.C. § 4342, which
in turn explained that the “academic and other standards” for
women admitted to the various service academies “shall be the
same as those required for male individuals, except for those
minimum essential adjustments in such standards required because
of

physiological

individuals.”

differences

Id.

between

male

and

female

The Attorney General thus maintains that the

VMI decision shows “that some differential treatment of men and
women based upon inherent physiological differences is not only
lawful but also potentially required.”
In

Lanning,

the

Third

Circuit

Br. of Appellant 29.
analyzed

a

Title

VII

disparate impact challenge made by female applicants for transit
officer positions with the Philadelphia transit authority.
181

F.3d

at

484. 10

The

applicants

challenged

the

See

transit

authority’s use of a twelve-minute cutoff requirement for a 1.5mile run on the basis that female applicants failed at rates
disproportionately higher than their male counterparts.
at 492-93.
transit

The Third Circuit vacated a ruling in favor of the

authority

application

See id.

of

and

the

remanded

10

the

district

necessity

business

to

defense,

court
which

for
it

As the Supreme Court has recognized, disparate impact
discrimination
occurs
when
a
facially
neutral
employment
practice has a significantly discriminatory effect.
See Griggs
v. Duke Power Co., 401 U.S. 424, 430 (1971).

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Filed: 01/11/2016

thusly:

“a

Pg: 23 of 28

discriminatory

cutoff

score

[must]

be

shown to measure the minimum qualifications necessary for the
successful

performance

of

the

job

in

survive a disparate impact challenge.”

question

in

order

to

Id. at 490.

If the transit authority could not show that the twelveminute standard represented the minimum qualification to be a
transit officer, and the authority nevertheless wanted to ensure
aerobic fitness in its officers, Lanning offered by footnote a
suggestion:

“institute a non-discriminatory test for excessive

levels of aerobic capacity such as a test that would exclude 80%
of men as well as 80% of women through separate aerobic capacity
cutoffs for the different sexes.”
Third

Circuit

transit
Title

authority’s

VII.”

Lanning

explained,

Id.

expressly

such

fitness
The

181 F.3d at 490 n.15.
a

goals

Attorney

endorsed

solution

the

would

“without
General

use

of

achieve

running

thus

As the
the

afoul

contends

of

that

gender-normed

physical

authorities,

we

fitness standards under Title VII.
B.
Having
ascertain

considered

and

proceeding.

identify

the
the

foregoing
rule

that

is

applicable

in

must
this

The district court rejected the FBI’s contention

that the “no greater burden” test espoused by the Ninth Circuit
in Gerdom, and applied by Powell and Hale, authorized the use of
the gender-normed PFT standards at the Academy.
23

Instead, the

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district court relied on the plain language of Title VII and
Manhart’s “simple test” for sex discrimination, explaining that,
but for Bauer’s sex, he would have been required to complete
fourteen push-ups instead of thirty.
concluded

that

discrimination

the
in

gender-normed
contravention

On that basis, the court
standards

of

Title

constitute
VII.

We

sex
are

constrained to disagree.
Men and women simply are not physiologically the same for
the purposes of physical fitness programs.

The Supreme Court

recognized as much in its discussion of the physical training
programs addressed in the VMI litigation, albeit in the context
of a different legal claim than that presented today.
recognized

that,

although

Virginia’s

use

of

The Court

“generalizations

about women” could not be used to exclude them from VMI, some
differences

between

the

sexes

were

real,

therefore could require accommodations.
550 & n.19.

not

perceived,

and

See VMI, 518 U.S. at

To be sure, the VMI decision does not control the

outcome of this appeal.

Nevertheless, the Court’s observation

therein regarding possible alterations to the physical training
programs

of

the

service

academies

informs

our

analysis

of

Bauer’s Title VII claims.

That is, physical fitness standards

suitable

always

for

men

may

not

be

suitable

for

women,

and

accommodations addressing physiological differences between the
sexes are not necessarily unlawful.
24

See Lanning, 181 F.3d at

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490 n.15 (suggesting that use of gender-normed cutoff scores for
aerobic

capacity

would

not

contravene

Title

VII);

see

also

Michael M. v. Superior Court of Sonoma Cty., 450 U.S. 464, 469
(1981)

(plurality

upheld

statutes

opinion)
where

(“[T]his

the

gender

Court

has

consistently

classification

is

not

invidious, but rather realistically reflects the fact that the
sexes are not similarly situated in certain circumstances.”).
At bottom, as the Powell and Hale decisions recognized, the
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
fitness.

men

and

women

to

demonstrate

different

levels

of

A singular focus on the “but for” element of Bauer’s

claim offers the obvious conclusion that the numbers of push-ups
men and women must complete are not the same, but skirts the
fundamental issue of whether those normalized requirements treat
men in a different manner than women.

In recognition of that

distinction, we agree with the rule enunciated in Powell and in
Hale.
Put succinctly, an employer does not contravene Title VII
when

it

between

utilizes
the

physical

sexes

on

fitness

the

basis
25

standards
of

that

their

distinguish

physiological

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differences but impose an equal burden of compliance on both men
and women, requiring the same level of physical fitness of 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.

Accordingly, the district court erred

in

rule

failing

to

apply

the

in

its

disposition

of

Bauer’s

motion for summary judgment.
C.
Although Bauer has consistently opposed the rule we adopt
today, he has argued in the alternative, both on appeal and in
the district court, that the rule does not preclude a summary
judgment award in his favor. 11

At the same time, the Attorney

General urges — under our new rule — that we direct an award of
summary judgment to her.

Because the district court did not

address either Bauer’s alternative contention or the Attorney
General’s summary judgment request, we must decide whether to
address those matters in the first instance.

11

As his alternative basis for summary judgment, Bauer
makes a three-pronged argument.
First, he contends that the
gender-normed
PFT
standards
are
not
predicated
on
any
physiological differences between the sexes.
Second, he
maintains that the standards impose an undue burden of
compliance on male Trainees compared to female Trainees. Third,
he contends that the standards are not consistent with the
minimum performance requirements for Special Agents of the FBI.

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We are not restricted to resolving an appeal solely on the
grounds relied on by the district court.

Indeed, we can “affirm

on any legal and factual basis fairly presented in the district
court and preserved for review.”

PHP Healthcare Corp. v. EMSA

Ltd. P’ship, 14 F.3d 941, 945 (4th Cir. 1993).
although

the

denial

of

a

summary

judgment

Furthermore,

request

“is

not

independently reviewable,” we can “review such an order when it
is appealed with an order granting a cross-motion for summary
judgment.”

Nat’l Coal. for Students with Disabilities Educ. &

Legal Def. Fund v. Allen, 152 F.3d 283, 293 (4th Cir. 1998).
And, if the facts are undisputed, “we are free to direct the
entry of an order awarding summary judgment to the party whose
motion was denied.”

Id.

This appeal presents an added layer of complexity, however,
because the district court awarded summary judgment to Bauer on
the

basis

of

circumstance,

an
the

erroneous
better

legal

remedy

is

standard.
usually

to

determination under the appropriate standard.”
Humphrey, 434 F.3d 234, 247 (4th Cir. 2006).
true

here,

where

the

resolution

of

In
remand

such
“for

a
a

See Humphrey v.
That is certainly

Bauer’s

alternative

contention and the Attorney General’s summary judgment motion
requires multiple analyses that the district court is better
suited

to

undertake

in

the

first

instance.

Of

particular

significance, there is the potential for problems in the summary
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judgment record arising from the so-called “Joint Statement of
Facts.”

See supra note 5.

A remand to the district court is

therefore our most prudent option.

IV.
Pursuant to the foregoing, we vacate the judgment of the
district court and remand for such other and further proceedings
as may be appropriate.
VACATED AND REMANDED

28