Special Agent Flunkee Loses FBI Bias Claim

(CN) - The FBI did not discriminate by requiring a male trainee to perform more push-ups than his female counterparts, the Fourth Circuit ruled.

Though Jay Bauer has been working as an intelligence analyst for the FBI in Chicago since 2009, the Northwestern University alumnus had come frustratingly close to achieving his dream of employment as a special agent.

When Bauer first applied to become a special agent in 2001, after the Sept. 11 terrorist attacks, the FBI rejected him for lack of sufficient work experience.

Bauer got his foot in the door after obtaining his doctorate degree but fell short of the on the physical-fitness test applicants must pass to gain entrance to the academy in Quantico, Va.

The test, which trainees pass again to graduate, requires men to perform 38 sit-ups, sprint 300 meters in 52.4 seconds, do 30 push-ups, and run 1.5 miles in 12 minutes and 42 seconds.

Women are required to do 35 sit-ups, run 300 meters in 64.9 seconds, perform 14 push-ups, and run a mile and a half in 13:59.

In October 2008, Bauer could perform only 25 push-ups. Three months later, he performed 32 push-ups to enter the academy. Physical fitness and defensive tactics are just one component of the 22-week course at Quantico, which tests special-agent trainees in firearms training, academics, and practical applications and skills.

Though Bauer's classmates chose him as their leader and spokesman for graduation from the academy, Bauer could not perform the 30 pushups required for his physical-fitness exit test. On his fifth try, the trainee fell just one push-up short.

He filed suit in 2012 against Attorney General Loretta Lynch, complaining that the bureau discriminates in requiring only 14 push-ups from women training to be special agents.

A federal judge in Alexandria agreed with Bauer that he was a victim of discrimination, but the Richmond-based Fourth Circuit reversed Monday.

The 28-page opinion credits Lynch's argument that the FBI is looking for a certain level of physical fitness from men and women, with the different numbers reflecting their physiological differences.

"Among the few decisions to confront the use of gender-normed physical fitness standards in the Title VII context, none has deemed such standards to be unlawful," Judge Robert King wrote for a three-person panel.

These decisions include Powell v. Reno from 1999 and Hale v. Holder from 2010.

In the Hale case, which King called "nearly identical" to Bauer's lawsuit, the physical fitness test was not found to be discriminatory.

"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," King added.

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