Jay Bauer v. Loretta Lynch , 812 F.3d 340 ( 2016 )

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,
Chicago, Illinois; Craig C. Reilly, Alexandria, Virginia, for
Appellee.
2
KING, Circuit Judge:
For more than ten years, the FBI has measured the physical
fitness of its New Agent Trainees (“Trainees”) by using gender-
normed 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. See Bauer v. Holder,
25 F. Supp. 3d 842 (E.D. Va. 2014). The Attorney General has
appealed and, as explained below, we vacate and remand.
I.
A.
The FBI trains its Special Agent recruits at the FBI
Academy in Quantico, Virginia. 1 The twenty-two week program
consists of four main 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).
3
be successfully completed to graduate from the Academy:
academics; firearms training; practical applications and skills;
and defensive tactics and physical fitness. Various assessment
tools are used to ensure that Trainees 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 to the FBI, Trainees must pass the PFT and
thereby demonstrate their physical fitness for two primary
reasons. First, a basic level of physical fitness and
conditioning leads to strong and injury-free performance at the
Academy. Second, physical fitness supports effective training
and application of the elements taught within the defensive
tactics program, which include self-defense, combat, and
restraining techniques. The FBI developed the PFT to ensure
that those aims would be satisfied and to identify the Trainees
who possess the initiative and perseverance required of a
Special Agent. 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.
4
The FBI has not always utilized the current version of the
PFT. Prior to 2004, prospective Trainees proved themselves
physically fit for admission to the Academy by completing a
timed 1.5-mile run. Once at the Academy, Trainees were required
to pass a five-part test, comprised of pull-ups, sit-ups, push-
ups, 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. As a
result, some Trainees suffered injuries, and the 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 as
indicators of Trainees’ overall levels of physical fitness. The
5
FBI also considered standards of the exercise physiology
industry. Those deliberations led to the selection of four
events, to be completed in a single test in the following
sequence: one minute of sit-ups; a 300-meter sprint; push-ups
to exhaustion; and a 1.5-mile run. The events required Trainees
to demonstrate baseline levels of fitness in core muscle
strength and endurance, short-term physical power and speed,
upper body strength and endurance, and 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 results were then subjected to thorough
statistical analyses and standardized so that the 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 in the same events.
6
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 female Trainees to satisfy the male-
oriented standards. 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 above-average achievement, with a maximum of ten
points. 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. That scoring system allowed
Trainees who could demonstrate only a minimum, below-average
level of fitness in one event to compensate by demonstrating
above-average fitness in other events.
7
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 Men Women
Sit-ups 38 35
300-meter sprint 52.4 seconds 64.9 seconds
Push-ups 30 14
1.5-mile run 12 minutes, 42 seconds 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 minimum passing score or better. Finding the
discrepancy between the passage rates 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. More
8
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 Trainees, suggesting that the PFT was not as
challenging as initially envisioned. Notwithstanding 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. Having earned a master’s
degree in speech language 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
9
interviews, and satisfying 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. The FBI allowed Bauer to
retest in January 2009, and he passed, that time completing
thirty-two push-ups. 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 met all expectations for the practical
applications and skills components of the Academy. Bauer’s
classmates also selected him as the class leader and
spokesperson for the Academy graduation. Unfortunately, Bauer
faced a dilemma: 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 failure to achieve the minimum standard for push-ups.
Bauer’s results, and his corresponding point scores for each
event, were as follows:
10
300-meter 1.5-mile Total
Week Sit-ups Push-ups
sprint run Points
40 42.6 sec. 26 10:49
Week 1 14
(2) (8) (0) (4)
47 43.4 sec. 25 10:24
Week 7 16
(4) (7) (0) (5)
50 43.7 sec. 28 10:45
Week 14 17
(6) (7) (0) (4)
51 43.8 sec. 27 11:09
Week 18 17
(6) (7) (0) (4)
49 44.1 sec. 29 10:57
Week 22 15
(5) (6) (0) (4)
Following his final failure of the PFT, Bauer met with
Academy officials to assess his situation. He was given three
options: (1) resign with the possibility of future employment
with the FBI; (2) resign permanently; or (3) be fired. Bauer
chose the first option and immediately signed a resignation
letter. 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
provisions: 42 U.S.C. § 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 judgment, supported by voluminous
exhibits. In addition to evidence memorializing the FBI’s
development of the PFT, the parties presented reports 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 § 2000e-
2(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).
12
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.
13
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 had he been a woman, the gender-normed PFT
standards contravene Title VII’s prohibition of sex
discrimination. See id. at 856. For the same reason, the court
determined that the standards 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 to Title VII liability under two potential
exceptions. More specifically, the court considered the
applicability of Title VII’s bona fide occupational
qualification defense (the “BFOQ defense”), which allows for
differential treatment of men and women if sex “is a bona fide
occupational qualification reasonably necessary to the normal
operation of that particular business or enterprise.” See 42
U.S.C. § 2000e-2(e). The court also assessed whether the PFT
standards could survive under the defense outlined by the
Supreme Court in Ricci v. DeStefano (the “Ricci defense”), which
14
permits disparate treatment 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 disparate-
impact liability” unless it takes discriminatory action. See
557 U.S. 557, 585 (2009). Ultimately, the district court
rejected the BFOQ and Ricci defenses. See Bauer, 25 F. Supp. 3d
at 860 & n.30, 864. 7 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
7The Attorney General did not pursue either the BFOQ
defense or the Ricci defense in the district court proceedings.
As explained at oral argument, she declined to concede that the
PFT standards treated 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.
15
party. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264,
276 (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 standards constitute sex
discrimination under Title VII. 9 Because this appeal involves a
9
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)
16
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 employer uses a facially discriminatory employment
practice. 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.
17
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 of push-ups had he been a woman, the
gender-normed PFT standards constitute facial sex
discrimination. The Attorney General maintains on appeal,
however, that because the PFT assesses an overall 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. 96-
2743, 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
18
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 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.” Id. at *9-10 (internal
quotation marks omitted). 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. Id. at *11.
In Hale — a 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
19
the PFT’s current male standards. See EEOC Dec. No. 570-2007-
00423X, slip op. at 2. Hale contended that the FBI “held
females to less rigorous physical requirements than males” and
thus violated Title VII’s proscription against sex
discrimination. Id. at 4. The administrative law judge adopted
the approach taken by 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 employer’s allegedly
discriminatory weight-limit policy. 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 decision has been applied in the Ninth Circuit to
challenges against policies regarding weight and appearance
requirements. 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
20
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. In recognizing the
realities of coeducation, the Court explained “that women’s
admission would require accommodations, primarily in arranging
housing assignments and physical training programs for female
cadets.” 518 U.S. at 540 (emphasis added). The Court also
observed by footnote that “[a]dmitting women to VMI would
undoubtedly require alterations necessary . . . to adjust
aspects of the physical training programs.” Id. at 550 n.19.
In support of that proposition, the Court relied on the
21
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 differences between male and female
individuals.” Id. 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.” Br. of Appellant 29.
In Lanning, the Third Circuit analyzed a Title VII
disparate impact challenge made by female applicants for transit
officer positions with the Philadelphia transit authority. See
181 F.3d at 484. 10 The applicants challenged the transit
authority’s use of a twelve-minute cutoff requirement for a 1.5-
mile run on the basis that female applicants failed at rates
disproportionately higher than their male counterparts. See id.
at 492-93. The Third Circuit vacated a ruling in favor of the
transit authority and remanded to the district court for
application of the business necessity defense, which it
10As 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).
22
explained thusly: “a discriminatory cutoff score [must] be
shown to measure the minimum qualifications necessary for the
successful performance of the job in question in order to
survive a disparate impact challenge.” Id. at 490.
If the transit authority could not show that the twelve-
minute 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.” 181 F.3d at 490 n.15. As the
Third Circuit explained, such a solution would achieve the
transit authority’s fitness goals “without running afoul of
Title VII.” Id. The Attorney General thus contends that
Lanning expressly endorsed the use of gender-normed physical
fitness standards under Title VII.
B.
Having considered the foregoing authorities, we must
ascertain and identify the rule that is applicable in this
proceeding. 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. Instead, the
23
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. On that basis, the court
concluded that the gender-normed standards constitute sex
discrimination in contravention of Title VII. We 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. The Court
recognized that, although Virginia’s use of “generalizations
about women” could not be used to exclude them from VMI, some
differences between the sexes were real, not perceived, and
therefore could require accommodations. See VMI, 518 U.S. at550 & n.19. 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 for men may not always be suitable for women, and
accommodations addressing physiological differences between the
sexes are not necessarily unlawful. See Lanning, 181 F.3d at
24
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 opinion) (“[T]his Court has consistently
upheld statutes where the gender 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 men and women to demonstrate different levels of
fitness. 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 utilizes physical fitness standards that distinguish
between the sexes on the basis of their physiological
25
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 failing to apply the rule 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.
11As 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.
26
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). Furthermore,
although the denial of a summary judgment 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 an erroneous legal standard. In such a
circumstance, the better remedy is usually to remand “for a
determination under the appropriate standard.” See Humphrey v.
Humphrey, 434 F.3d 234, 247 (4th Cir. 2006). That is certainly
true here, where the resolution of 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
27
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
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