Is Bauer v Department of Justice, the Decision We've Been Waiting For?

The United States District Court for the Eastern District of Virginia rendered a decision on June 10, 2014 that adds some much needed clarity to the definition of physical readiness standards and the policies a public safety agency is expected to enforce pursuant to their efforts to ensure a physically capable workforce. The Bauer Decision < Download Bauer v DOJ Decision.0614 >, coupled with the Easterling Decision out of the 2nd Federal Circuit, will help to provide the direction for agencies that has been sorely lacking for decades. During that time, FitForce has made a cogent argument for an approach to standards, testing, and policy and procedure that both complies with the revised Civil Rights Act of 1991 and lawfully ensures a physically ready workforce. Our position has been consistent over that time and as it turns out, it has been entirely consistent with the court's decision in Bauer.

Due to the significance of Bauer, I will spend some time reviewing the issues raised; in this entry, the merits of the case will be relayed.


The FBI implemented a mandatory physical fitness test (PFT) in 2004 for graduation from their New Agent Training Program (NATP). The battery consists of four items: push ups, sit ups, 300 meter run and 1.5 mile run. Points are awarded from a 10-point scale for performance in each item. New Agent Trainees (NATs) must achieve a score of 12 points to graduate which corresponds to average fitness according their in-house norms. In addition, NATs must score at least one point in each item. The stated justification for the PFT is: (1) to ensure safety and proficiency in training and (2) to demonstrate "suitability" for the Special Agent Position upon graduation.

The norms, standards and scoring procedure at the center of the case resulted from two studies conducted by the FBI's in-house industrial/organizational psychologist. Minimum passing was set at one standard deviation below the mean for each sex and test. The norms were derived from a population of NATs tested during the first week of NATP. These norm-based, gender-adjusted standards were, according to documents offered by the defendant, based upon the innate physiological differences between males and females.

In practice, the plaintiff, then a 35 year old male, had to perform 30 push ups to get one point on the test and female NATs were required to perform 14 push ups to minimally pass with one point.

The FBI currently does not have mandatory fitness testing for incumbents; there is a voluntary fitness program in place which includes a fitness assessment and goal levels of performance.

The Plaintiff

Jay Bauer, PhD was working as an FBI Intelligence Analyst when he was offered an appointment to the Special Agent NATP. He twice took the PFT at the Milwaukee Field Office, passing all items on his second attempt. Bauer entered the Academy at Quantico on March 1, 2009. Throughout the NATP, Bauer repeatedly failed the push up portion of the PFT. However, he was selected as a class leader and spokesperson by his peers; in fact, he was scheduled to speak at the graduation ceremony.

On July 29, 2009, week 22 of the session, Bauer failed the push up test for the fifth and final time. He was immediately confronted with three "options": (1) resign and maintain the possibility of future work as an Intel Analyst; (2) resign and forego the possibility of future employment; or (3) be fired. A decision was required immediately and a hand-written note was demanded on the spot.

The Suit

Bauer filed suit claiming the gender-normed PFT constituted disparate treatment under Title VII which resulted in an adverse impact to him.

The FBI countered that the PFT considered the innate physiological differences between males and females and the standards impose no greater burden on males than on females; further, the defendant claimed they were justified in using different standards under the bona fide occupational qualification (BFOQ) defense.

The Findings

1. The plaintiff's resignation was deemed involuntary and therefore qualifies as an adverse action under Title VII.

2. The plaintiff had the burden of demonstrating the PFT is discriminatory; the court agreed that pursuant to the revised Civil Rights Act of 1991, the FBI's PFT is discriminatory treatment based on sex.

3. The court considered two primary requirements for a given policy to be considered a BFOQ: (1) a policy must be "an objective, verifiable requirement" that (2) "concern(s) job-related skills and aptitudes." In rendering its decision, the court determined that although the FBI demonstrated the test items provide objective, verifiable measures of physical fitness, they did not demonstrate the PFT focused on job-related skills and aptitudes, principally due to a lack of mandatory incumbent physical training and testing.

4. The plaintiff's motion for summary judgment was granted.

This decision will no doubt send ripples through the law enforcement community that will eventually touch on many shores. In the coming days, I will examine in more detail specific elements of the case and the implications of the court's decision.

Stay Safe, Stay Strong