Jay Bauer v. Loretta Lynch
2016 U.S. App. LEXIS 379
| 4th Cir. | 2016Background
- FBI created a gender‑normed Physical Fitness Test (PFT) in 2003–04 (sit‑ups, 300m sprint, push‑ups to exhaustion, 1.5‑mile run) using a 2003 Pilot Study and a 2004 Follow‑up Study; minimums set at one standard deviation below sex‑specific means (15th percentile).
- Minimum push‑ups: men 30, women 14; FBI designed scoring to require equal overall fitness (same expected pass rates by sex).
- Jay J. Bauer (male) failed to meet the male push‑up minimum repeatedly at the Academy and resigned after being given the choice of resignation or termination; he later sued under Title VII alleging sex discrimination and unlawful use of sex‑based cutoff scores.
- District court granted summary judgment to Bauer, holding the gender‑normed standards facially discriminatory under Manhart because Bauer would have had to do fewer push‑ups if female, and rejected employer defenses (BFOQ and Ricci theories).
- On appeal, the Fourth Circuit vacated and remanded, adopting the rule that sex‑differentiated fitness standards do not violate Title VII when they account for physiological differences but impose an equal burden of compliance and thus require the same level of fitness of men and women.
Issues
| Issue | Bauer's Argument | Attorney General's Argument | Held |
|---|---|---|---|
| Whether gender‑normed PFT standards constitute facial sex discrimination under Title VII | The standards are facially discriminatory because, "but for" sex, Bauer would have been required to do only 14 push‑ups rather than 30 | The PFT measures overall fitness and normalizes for physiological sex differences, so men and women are required to meet the same fitness level; not discrimination | Court held that Manhart’s "but‑for" test alone is insufficient; gender‑normed standards lawful if they impose equal burden and measure equivalent fitness across sexes; remanded for further proceedings |
| Whether precedent (Gerdom/Powell/Hale) permitting sex‑differentiated physiologically‑based standards controls | Argued those authorities shouldn't apply; emphasized plain statutory text and Manhart | Relied on those authorities to show permissibility where burdens are equal | Court adopted the Gerdom/Powell/Hale approach: physiological distinctions may justify sex‑normed standards if equally burdensome |
| Whether employer defenses (BFOQ or Ricci) excuse otherwise discriminatory standards | N/A at core (argued standards are discriminatory and not justifiable) | Raised BFOQ and Ricci defenses below but did not pursue them in district court; argued discrimination absent | District court rejected BFOQ and Ricci; appellate court did not decide those defenses and remanded so district court can apply correct standard and address defenses/facts |
| Whether summary judgment for either party is proper given record | Bauer alternatively argued standards do not reflect true physiological differences, impose undue burden on men, and are inconsistent with job minimums | Attorney General sought judgment in her favor under the adopted rule | Fourth Circuit declined to grant summary judgment to either side and remanded for district court to apply proper legal standard to factual record |
Key Cases Cited
- City of Los Angeles v. Manhart, 435 U.S. 702 (recognizes "but‑for" test for facial sex discrimination under Title VII)
- Gerdom v. Continental Airlines, 692 F.2d 602 (9th Cir.) (en banc) (permits physiologically based sex distinctions when they impose no greater burden on either sex)
- United States v. Virginia, 518 U.S. 515 (discusses lawful accommodations for physiological differences in physical training programs)
- Lanning v. Se. Pa. Transp. Auth., 181 F.3d 478 (3d Cir.) (disparate impact/business necessity framework and recognition of sex‑normed cutoff as possible solution)
- Ricci v. DeStefano, 557 U.S. 557 (permits certain defensive measures when employer has strong basis in evidence of disparate‑impact liability)