Men who want to become FBI special agents have to do more than twice as many push-ups as women seeking the same job. And in the eyes of a federal appeals-court panel, that is not necessarily a problem.
A panel with the U.S. Court of Appeals for the 4th Circuit rejected a challenge to the FBI’s physical fitness test Monday — ruling against a Cook County, Ill., man who had wanted to become a special agent but was turned down because he couldn’t do the required 30 push-ups. On his final try, he did 29.
The man, Jay J. Bauer, alleged in a lawsuit that his treatment was discriminatory because he was held to a standard above that of his female counterparts, and a lower-court judge had agreed with him. The appeals court, though, told that judge to reconsider, deciding that “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.”
The ruling comes as the U.S. military is grappling with the thorny issue of physical fitness standards in the context of integrating women into combat units, and it touches on basic questions of fairness and gender differences.
By the three-judge panel’s telling, Bauer “largely showed great potential for a career as a Special Agent.” He passed all the academic tests, demonstrated a proficiency with guns and defensive tactics, and passed some physical measures, such as for running and sit-ups.
But after going through the training academy, he fell one short of the required 30 push-ups. Women wanting to become special agents are required to perform 14 push-ups, court records show.
The panel’s ruling — written by Circuit Court Judge Robert B. King and joined by Circuit Court Judge Pamela A. Harris and U.S. District Judge George J. Hazel — is nuanced. It sent the case back to U.S. District Judge T.S. Ellis III rather than resolving it outright in the FBI’s favor.
“Men and women simply are not physiologically the same for the purposes of physical fitness programs,” the panel concluded, much like Ellis. But the judges also decided, in essence, that an employer was not in violation of federal law simply because it used different measures to assess applicants of different sexes — as long as male and female applicants were held to the same relative level of physical fitness.
“In other words, equally fit men and women demonstrate their fitness differently,” the three judges wrote. “Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness.”
After he was rejected from becoming a special agent, Bauer, who is in his early 40s and holds a PhD from Northwestern University in human communication sciences, went to work for the FBI’s Chicago office and has been in that position since 2009, court records show.
An attorney for Bauer declined to comment, and Bauer did not immediately return a message. Representatives for the Justice Department and the FBI declined to comment.