“Drop and give me 14 push-ups! Or 30, if you’re a dude.” That, in essence, is the gender-based difference in the Federal Bureau of Investigation’s physical fitness exam for special agent trainees. Men must be able to complete 30 push-ups to pass the physical exam; women are required to hit just 14.

And that’s perfectly fine, the Fourth Circuit ruled on Monday, after a male trainee who was just one push-up short of 30 sued, arguing the test illegally discriminated on the basis of sex.

So Close, Yet So Far Away

For over a decade, special agent trainees at the FBI academy in Quantico, Virginia, have had to pass a gender-normed physical fitness test. The fitness test is made up of four sequential parts: a minute of sit-ups; a 300-meter sprint; push-ups; and a 1.5-mile run. The minimum requirements for each event were altered slightly for men and women, based on FBI studies, with the greatest difference in the push-up section. (Women only had to do three less sit-ups than men, for example, and were given a few extra seconds in the sprint.)

In 2009, Jay J. Bauer fell just short of meeting the test’s push-up requirements, each of the five times he took the test, and flunked out of the academy. It wasn’t the end of his career with the FBI though. Bauer went on to work in the less sit-up-intensive role of intelligence analyst. But the missed push up did mean he would never be a special agent.

For Physical Fitness, Need More Than But-For

Bauer sued in 2012, claiming that the different push-up requirements discriminated on the basis of sex in violation of Title VII of the Civil Rights Act. Title VII prohibits both sex discrimination by federal employers and the use of different sex-based cutoff scores in employment tests.

Bauer was originally successful in district court, where the court found that, since Bauer would have passed had he been a woman, the test standards violated Title VII. The court rejected, sua sponte, that the gender-normed test reflected a bona fide occupational qualification and that it was created to avoid “disparate-impact liability,” as allowed under Ricci v. DeStefano. (Interestingly, the Department of Justice had declined to argue BFOQ and Ricci defenses, as she would not concede that the test treated men and women differently at all.)

The Fourth Circuit disagreed. While the district court applied the Manhart but-for test — but for Bauer’s gender, he would have passed the test — the court cannot ignore the “physiological differences” between the sexes.

Different Standards, Equal Burden

Those differences impact men and women’s “relative abilities to demonstrate the same levels of physical fitness,” the Fourth found, and can be taken into consideration in a physical fitness test.

As the court explained:

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 of each.

That’s not quite the end of the story, however. Bauer’s suit will now return to district court, where the judge will determine if Bauer’s claims can survive the new standard.

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