Monday, July 14, 2014

Pushing Up the Law

NewimageMany of our readers are familiar with Lanning v. SEPTA, 308 F.3d 286 (3d Cir. 2002), involving an unsuccessful challenge to a police force physical fitness test on the ground that it had a disparate impact on women. The Third Circuit ultimately held that, despite its impact, the test was justified by business necessity.  

Contrast that with a recent district court faced with another challenge to a law enforcement physical fitness test, this time by a male against the FBI, and plaintiff won: Bauer v. Holder held that the FBI’s physical fitness test with different minimum requirements for men and women violates Title VII by discriminating on the basis of sex. 

Jay Bauer, a 35-year-old man at the time he entered into the FBI New Agent Trainee class, took the challenged test seven times. Each time, save for once, Bauer failed the push-up segment, which required men to do a minimum of thirty push-ups while women had a minimum of fourteen. On his seventh test and after twenty-two weeks of training, Bauer completed only twenty-nine push-ups, leading to his forced resignation as a Special Agent (although he continued to be employed by the Bureau as an analyst).

The FBI implemented its physical fitness test in 2004 as a mandatory requirement for all New Agent Trainees (NATs). It set the minimum standards by using a pilot study of 260 male and 64 female NATs, finding the average of the scores for both men and women, and then setting the passing score for each tested skill at one standard deviation below the average performance for each sex. In order to pass the overall test, an NAT must achieve the minimum standard on each part.

While this structure had its own complication, critical to the court’s holding was that each segment had different minimum standards for men and women NATs.   In all categories, men had to outperform women in absolute terms. Thus, passing males had to perform three more sit-ups and sixteen more push-ups, complete a 300 meter run 12.5 seconds faster, and complete a 1.5 mile run one minute and seventeen seconds faster than women.

For the court, this facial difference went a long way towards dictating its result.  Since the physical fitness test facially treated men and women differently it was prima facie unlawful under well-established precedents, notably City of Los Angeles Dep't of Water & Power v. Manhart, and Auto Workers v. Johnson Controls.  It’s true that  physiological differences exist between the sexes, but that was true in both Supreme Court cases (longer life expectancy for women in Manhart and female reproductive role in Johnson Controls). And not only did the governing precedents suggest that such differences didn't affect the initial discrimination question but  42 U.S.C. § 2000e–2(l), also specifically prohibits employers from discriminating when conditioning employment on the passage of a test. 

For the court, there was one potential out for the FBI: proving a BFOQ for the differential standards, which would allow otherwise-prohibited discrimination.  The FBI attempted to do so by justifying the physical fitness test (in particular, the push-up portion) in terms of the skills required for Special Agents; however, it failed to sufficiently link push-ups to any duty actually performed by such agents. The court was especially concerned by the fact that the fitness requirements applied only in training new Special Agents; there was no testing of Special Agents throughout their employment, thus the court did not believe that passage was actually essential to successful performance of job tasks. This argument had not cut a lot of mustard in Lanning as applied to the business necessity defense, but it seemed dispositive in Bauer.

That seemed to leave the FBI with two choices:

The Bureau could lower the minimum standard for both sexes to that of the standard for women, probably the legally safest option. In light of physiological differences between men and women, that would result in less physically fit men passing the test. Assuming no job relation between physical fitness and being an FBI Special Agent, that’s not necessarily problematic, but if there are only a certain number of positions available, the net result might be fewer women Special Agents simply because there are more men in the pool. 

Second, the Bureau could raise the minimum standard for both sexes to one that is higher than the current minimum standard for women. By definition, this would create a disparate impact on women and, while Lanning upheld the test used there as a business necessity, the Bauer court's analysis suggests that the FBI might not be so lucky.

Is there a third alternative?  Could the Bureau revise the physical skills tested test in order to reflect the actual job-related skills needed to be a Special Agent while retaining different standards for men and women?  The court recognized that possibility since it did not purport to be striking down all gender-normed physical fitness tests: a possibly permissible test would more closely test the applicant’s actual ability to do the job. For example, instead of merely testing upper-body strength by doing push-ups, the test would focus on actual Special Agent tasks such as “carrying objects weighing a certain number of pounds for a certain period of time.”   But how could a fitness test that holds women to a lesser physical fitness standard than men can truly measure the “job-related skills and aptitudes”  unless the FBI were to assign male and female agents to different duties – and try to also justify that assignment as a BFOQ?

In any event, the case raises a number of interesting doctrinal issues. First, the BFOQ defense seems an awkward fit. As the court recognized, it’s typically been used to entirely exclude one sex (or workers over a certain age) from certain positions. Further, the standard formulation doesn’t fit this scenario very well: either (1) “all or substantially all” members of one sex can’t perform as well as members of the other sex or (2) members of one sex as a group are less able to do the job as well as members of the other sex as a group and it is highly impractical to determine which of them can). On the other hand, there doesn't seem to be any logical reason why the BFOQ would require total exclusion, and, if the standards in fact produced better Special Agents, it would seem odd to rule out the statutory defense. Still, so conceived, BFOQ sounds a lot like business necessity, and Title VII explicitly rules out business necessity as a defense to disparate treatment. 42 USC 2000e-2(k)(2).

And then there's 2000e-2(l).  While it's true that the FBI “use[d]  differential cutoff scores . . . on the basis of . . . sex,”  a strict reading of the language might suggest that the prohibition (which continues "or otherwise alter the results of, employment related tests")  reaches only alterations of scores, rather than differential scores to begin with. Ricci v. DeStefano, however, seemed to take a broad view of the provision. 

But speaking of Ricci, what about justifying the test as the FBI's effort to avoid disparate impact against women?  Sachin Pandya pointed out to me the possible application of the "strong basis in evidence" justification for the Bureau's rules. Given the FBI's own studies, setting the passing score above the female minimum would have had such an impact, and, given the court's analysis, there was no business necessity -- or, certainly, a strong basis in evidence that none existed.

Pretty interesting stuff, and it'll be especially interesting to see what the Bureau does.


Thanks to to Sachin Pandya for his thoughts on some of these issues and to Angela R Raleigh, Seton Hall class of ’16 for her assistance on this.

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The Bauer court did consider a Ricci defense to section 703(l): First, the court noted that such a defense was something the FBI had not attempted to show—the FBI had contended instead that neither section 703(l) nor Ricci applied. And then, in footnote 30, the court added that even if it had raised a Ricci defense, it would have failed: “Nor could defendant demonstrate a strong basis in evidence of disparate impact liability on the existing record.”

This is terse. I think it assumes at least arguendo that you can read the Ricci defense into section 703(l), even though—as my colleague Jon Bauer (no relation to the Bauer plaintiff) reminds me— Congress enacted 703(l) in 1991 to prohibit “race-norming”—a practice some employers had adopted precisely to avoid disparate-impact liability.

Still, even if you could read the Ricci defense into section 703(l), the Bauer court then pursued the BFOQ defense as a way to “reconcile (i) the Supreme Court’s clear holding that Title VII prohibits treating employees differently based on their sex with (ii) the risk that physical fitness tests that apply a single standard to both males and females may have a disparate impact on females.” That’s puzzling: The Ricci defense is nominally supposed to serve the same function, albeit for section 703(a)(1) violations. Why then read the BFOQ so broadly—as opposed to stopping after reading the Ricci defense into section 703(l)?

Posted by: Sachin Pandya | Jul 14, 2014 10:03:30 AM

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