In what the court refers to as a “relatively novel issue,” the U.S. Court of Appeals for the Fourth Circuit ruled recently that an employer is permitted, under certain circumstances, to hold men and women to different standards when administering an employment test that measures physical ability without violating Title VII of the 1964 Civil Rights Act.
In Bauer v. Lynch, the male plaintiff failed a physical fitness test administered by the Federal Bureau of Investigation (FBI), preventing him from becoming an FBI Special Agent. He filed a lawsuit claiming that the test, in requiring men to perform more pushups than women in order to pass, constituted sex discrimination under Title VII.
The Fourth Circuit found that maintaining different physical testing standards on the basis of sex in this case did not violate Title VII, because the differences in the standards were based on real differences between men and women, rather than perceived differences or stereotypes. The court also stressed that the different standards did not place a heavier burden on either men or women.
Although the Bauer case arose in the public sector, the decision offers some useful guidance to private sector employers that utilize physical ability and strength tests — the results of which may vary based on gender. It also serves as a timely reminder to ensure that testing procedures are closely monitored for potential adverse impact and are properly validated.
A copy of the Fourth Circuit’s decision in Bauer v. Lynch, No. 14-2323 (4th Cir. January 11, 2016), is available online here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.