What are the takeaway points from the Bauer Decision? (Part 1)

What are the takeaway points from the Bauer Decision (Part 1)

Retention standards. There, I said it. If there is a topic more likely to divide the entire population related to law enforcement, and in this case the entire population is related to law enforcement, I'm not sure what it is.

Whenever the topic of my job comes up, the person on the other side of the conversation says something like, "Yeah. I was wondering about that: are there fitness requirements for officers on the job." By the time I get through my discussion of POST-enabling legislation this and anti-discrimination legislation that, their eyes have glazed over and I'm left wondering, yet again, why didn't I just talk about the Red Sox' chances for this season.


One of the facts Judge Ellis points out in the Bauer Decision Download Bauer v DOJ Decision.0614 is the absence of a retention standard for incumbent FBI agents, despite the recommendation of its own consultant. The prescient recommendation of Dr. Grubb is footnoted in the decision

"[I]mplementation of a fitness assessment for on-board agents should be considered...to ensure continued safe performance in the Special Agent position, as well as to increase the defensibility of any personnel actions taken at the applicant or NAT phase of selection."

While I can't speak for Dr. Grubb, I know that neither I nor my colleagues own a crystal ball that allows us to see the future. However, we can read the language in the present: employment standards must be demonstrably job-related. This requirement in communion with validity evidence we can collect on a test and standards has compelled us to consistently recommend applicant AND incumbent programming to include testing and compliance. All too often however, this recommendation is met with resistance, no doubt similar to the resistance we see above.

As we know, very nearly every agency and entry-level training entity, not just the FBI, has a physical readiness requirement that must be met before the candidate or cadet has the job. Those seeking employment or admission must possess and demonstrate a physical proficiency that is so important to the job that they may not enter the profession without that proficiency. BUT, once they are in the profession, the need never demonstrate that same proficiency again. Although a lot of factors may go into the decision-making rubric, most agencies settle on this premise of fitness as a requirement for the new hires only. Perhaps they followed the FBI's lead on this one?


Just on its face however, the premise does not make sense. In the Bauer case, the premise clearly did not make sense to Judge Ellis either which no doubt contributed to his decision. If we were to play the What If game, we would have to consider what if there was no summary judgment and a trial date was set. The pool of potential jurors would be selected from the entire population we referenced earlier. This is the same population that by and large is operating under the assumption that those empowered to maintain order and public safety are held to a fitness for duty requirement. I'm not sure how sympathetic those jurors will be to an agency-head who rolls out the challenges they encounter on the road to incumbent requirements as their defense for no incumbent requirements.

At FitForce we long ago moved toward the term physical readiness. Not because we had a crystal ball but because the expectation is demonstrable job-relatedness for employment requirements. It is incumbent upon an agency to ensure that, despite the fact law and order and tranquility prevails in their neck of the woods, the officers in their employ will be physically ready to perform those essential frequent and critical but less-frequent tasks required of their position, on a moment's notice, without prior warning or opportunity to prepare, at a minimum level of proficiency that still ensures safe and effective performance. If the task must be performed as part of their duties, this expectation is irrespective of the fact that they may never have had to perform it in the past. Firearms proficiency is the most apt and most often cited analogy.

What does the future hold?

We know of and have experienced first-hand the challenges and resistance adminstrators encounter when attempting to implement incumbent requirements; some are legitimate and foreseeable, others may be brought on by labor and collective bargaining, while still others are due simply to intransigence and culture. The bottom line is this: the question of just how job-related and consistent with business necessity fitness standards can be in the absence of incumbent requirements is likely here to stay. In fact, this very issue has been the subject of other lawsuits in which we have been involved.

Now is the time for true leadership. And make no mistake: This is a leadership opportunity for all parties involved. The silver lining though in all of this that all parties will benefit from a physically ready workforce.

Stay Safe, Stay Strong