As we are all aware, Title VII of the Civil Rights act of 1964 prohibits, among other things, discrimination in employment on the basis of sex. This prohibition extends not only to intentionally discriminatory conduct, but also to neutral conduct that has a disparate impact upon employees due to their sex. Through the years, employers seeking to condition employment on particular physical attributes such as size, strength, and/or stamina were often sued under Title VII by female employees alleging that use of certain tests or standards to gauge such factors had a discriminatory disparate impact upon them due to their sex. In order to avoid liability under Title VII, such employers had to establish that the desired physical attributes were “bona fide occupational qualifications” (“BFOQ”), in that they were necessary to perform the essential functions of the particular job. As judicial precedent confirms, establishing that a particular physical attribute is a BFOQ requires significant and particularized factual proof well beyond the mere assertion that demanding jobs require a certain size, degree of physical strength, and/or fitness. For example, if an employer required applicants to be able to lift 150 pounds, it had to show that a particular and necessary job function required the ability to lift such weight.
Not surprisingly, in order to promote diversity in their workforces and avoid potential liability associated with the disparate impact of physical standards, some employers seeking candidates for physically demanding jobs, particularly for positions where general fitness was the desired attribute (as opposed to the particularized ability to lift, pull or pull a certain weight) adopted differing physical standards for men and women. The legality of these differing physical fitness standards has remain largely unexplored by the courts, until recently.
In Bauer v. Lynch, the U.S. Court of Appeals for the Fourth Circuit reversed a finding by the District Court that the FBI had discriminated against a male applicant by adopting and adhering to “gender normed” physical standards. In Bauer, the plaintiff was a male applicant for a Special Agent position with the FBI. The FBI required that Special Agents meet fitness standards with respect to sit ups, pushups, a timed sprint and a timed run. The FBI maintained that the standards were “gender normed”, meaning that while they were different for men and women they were nonetheless designed to measure the same degree of overall fitness by taking into account physiological differences between men and women. The standard that the plaintiff failed to meet was the pushup standard. The FBI required male applicants to successfully complete 30 pushups, while plaintiff was only able to complete 29. Female candidates, on the other hand, were only required to complete 14 pushups. The plaintiff claimed that by utilizing these differing standard s the FBI discriminated against him on the basis of sex. The District Court agreed, noting that “but for” the fact Plaintiff was male he would have met the Special Agent requirements due to his completion of more than 14 pushups.
On appeal, the Fourth Circuit reversed and remanded. Concluding that “men and women are simply not physiologically the same for purposes of physical fitness programs”, the Court opined that utilization of physical fitness standards that distinguish between the sexes on the basis of these physiological differences do not necessarily violate Title VII. The Court determined that such differing standards are lawful where the standards impose the same burden on both men and women—e.g. they require the “same level of physical fitness of each.” The Court thus remanded the case to the District Court to address, among other issues, the question whether the differing standards imposed an equal burden on both men and women.
Will Judicial Acceptance Of Gender Normed Standards Continue To Grow? If So, How Hard Will It Be To Establish That Differing Standards Impose An Equal Burden?
As legal challenges to these purported “gender normed” standards have been relatively few and far between, it will be interesting to see if other courts adopt the Fourth Circuit’s conclusions with respect to their legality under Title VII. Of equal interest may be the discussion and arguments pertaining to whether the differing standards actually impose an “equal burden”. While this will no doubt be addressed in greater detail upon remand in the Bauer matter, the appellate court’s recitation of facts identifies the likely key areas of inquiry upon remand.