KING, Circuit Judge.
The FBI trains its Special Agent recruits at the FBI Academy in Quantico, Virginia.
According to the FBI, Trainees must pass the PFT and thereby demonstrate their physical fitness for two primary reasons. First, a basic level of physical fitness and conditioning leads to strong and injury-free performance at the Academy. Second, physical fitness supports effective training and application of the elements taught within the defensive tactics program, which include self-defense, combat, and restraining techniques. The FBI developed the PFT to ensure that those aims would be satisfied and to identify the Trainees who possess the initiative and perseverance required of a Special Agent. The FBI requires every Special Agent recruit to pass the PFT twice: once to gain admission to the Academy, and a second time to graduate.
The FBI has not always utilized the current version of the PFT. Prior to 2004, prospective Trainees proved themselves physically fit for admission to the Academy by completing a timed 1.5-mile run. Once at the Academy, Trainees were required to pass a five-part test, comprised of pull-ups, sit-ups, push-ups, a 120-yard shuttle run, and a two-mile run. Despite the use of the 1.5-mile run as an admissions requirement, physically unfit Trainees sometimes gained admission to the Academy. As a result, some Trainees suffered injuries, and the Academy's instructors spent substantial time coaching Trainees into shape rather than focusing on the Academy's curriculum. Moreover, because the five-part test had not been formally validated as a physical fitness assessment, the FBI would not dismiss Trainees solely for failing it. Accordingly, in 2003, the FBI decided to develop the PFT, which would be
To design the new testing protocol, the FBI considered a list of more than 200 essential tasks of the Special Agent position and determined that nearly half of those tasks related directly to overall physical fitness. Supervisory agents in charge of physical training at the Academy offered expertise regarding the types of training events that best served as indicators of Trainees' overall levels of physical fitness. The FBI also considered standards of the exercise physiology industry. Those deliberations led to the selection of four events, to be completed in a single test in the following sequence: one minute of sit-ups; a 300-meter sprint; push-ups to exhaustion; and a 1.5-mile run. The events required Trainees to demonstrate baseline levels of fitness in core muscle strength and endurance, short-term physical power and speed, upper body strength and endurance, and aerobic capacity and endurance, respectively.
With the battery of events selected, the FBI evaluated and developed the minimum standards that Trainees would be required to satisfy in order to pass the PFT. To that end, the FBI implemented the PFT as a pilot program in each of its seven 2003 Academy classes and analyzed the results (the "Pilot Study"). The Pilot Study consisted of 322 Trainees—258 men and 64 women—who completed the PFT during their first week at the Academy. The Pilot Study results were then subjected to thorough statistical analyses and standardized so that the FBI could compare Trainees both within and across the four events.
As a part of the statistical standardization, the FBI sought to normalize testing standards between men and women in order to account for their innate physiological differences. The FBI reasoned that, due to such distinctions, equally fit men and women would perform differently in the same events. Accordingly, the FBI determined that male and female Trainees would be required to complete the four PFT events, but that different minimum standards would be established for each sex. The FBI concluded that use of such a gender-normed framework would have the complementary benefits of allowing the measurement of equivalent fitness levels between men and women while also mitigating the negative impact that would otherwise result from requiring female Trainees to satisfy the male-oriented standards. The practice also aligned with the FBI's use of gender-normed standards on the predecessor 1.5-mile run and five-part test.
After assessing the Pilot Study's results, the FBI computed the mean result and standard deviations therefrom in each event for each sex. Using that data, the FBI applied a point system to score each of the four events. For each event, Trainees could score one point for achieving the minimum standard, three points for achieving the Pilot Study's mean, and four or more points for above-average achievement, with a maximum of ten points. To successfully complete the PFT, Trainees had to score at least twelve points across all four events, with at least a single point earned in each event. That scoring system allowed Trainees who could demonstrate only a minimum, below-average level of fitness in one event to compensate by demonstrating above-average fitness in other events.
To receive the minimum passing score in each of the four events, Trainees would need to satisfy the following standards, which were fixed at one standard deviation
Event Men Women Sit-ups 38 35 300-meter 52.4 seconds 64.9 seconds sprint Push-us 30 14 1.5-mile run 12 minutes, 13 minutes, 42 seconds 59 seconds
The foregoing standards reflected the Pilot Study's results for the fifteenth percentile in each event, that is, eighty-five percent of Trainees were expected to earn at least one point in each event. Within the push-up event, the FBI found that 84.3% of male Trainees and 84.1% of female Trainees in the Pilot Study achieved the minimum passing score or better. Finding the discrepancy between the passage rates statistically insignificant, the FBI concluded that men and women of equal fitness levels were equally likely to pass the PFT. Beginning in 2004, the FBI adopted the PFT both as an Academy admission criterion and as a graduation requirement for its Trainees.
In early 2005, the FBI conducted a second study, evaluating its continued use of the PFT (the "Follow-up Study"). The Follow-up Study analyzed the results from the six 2004 Academy classes and compared them to those from the 2003 Pilot Study. The results of the Follow-up Study showed that male and female Trainees continued to pass the PFT at equivalent rates. More specifically, by the seventh week of the 2004 classes, 90.2% of male Trainees and 89.5% of female Trainees passed the PFT. Like the marginal difference in passage rates in the Pilot Study, the FBI deemed the slight discrepancy in the Follow-up Study to be statistically insignificant. The Follow-up Study also revealed that the 2004 Trainees had passed the PFT at a higher rate than the 2003 Trainees, suggesting that the PFT was not as challenging as initially envisioned. Notwithstanding that revelation, the FBI kept the Pilot Study's standards in place and continued to use the PFT as a screening test and Academy graduation requirement.
After the attacks of September 11, 2001, plaintiff Jay J. Bauer resolved to contribute to the defense of our country by becoming a Special Agent in the FBI. Having earned a master's degree in speech language pathology from Northwestern University, he applied to the FBI in 2001, but was rejected due to insufficient work experience. Bauer then continued his studies and earned a Ph.D. in human communication sciences from Northwestern in 2004. He subsequently served as an assistant professor at the University of Wisconsin-Milwaukee.
When Bauer reapplied to the FBI in 2008, it was interested in his application. Bauer moved through the applicant screening process with relative ease, passing written tests, completing interviews, and satisfying the requisite background checks. Then the time came for him to successfully complete the PFT to gain admission to the Academy. In October 2008, Bauer took the PFT for the first time and failed. Although he achieved sixteen points on the test, Bauer completed only twenty-five push-ups, five short of the minimum required. The FBI allowed Bauer to retest in January 2009, and he passed, that time completing thirty-two push-ups. With his fitness screening complete, the FBI invited Bauer to report to the Academy on March 1, 2009. Bauer thus resigned his university position and went to Quantico to train with the FBI.
Bauer's time at the Academy largely showed great potential for a career as a Special Agent. He passed all academic
During his twenty-two weeks at the Academy, Bauer took the PFT five times. On each occasion, he would have passed but for his failure to achieve the minimum standard for push-ups. Bauer's results, and his corresponding point scores for each event, were as follows:
300-mete r1.5-mile Week Sit-ups sprint Push-ups run Total Points Week 1 40(2) 42.6 sec.(8) 26(0) 10:49(4) 14 Week 7 47(4) 43.4 sec.(7) 25(0) 10:24(5) 16 Week 14 50(6) 43.7 sec.(7) 28(0) 10:45(4) 17 Week 18 51(6) 43.8 sec.(7) 27(0) 11:09(4) 17 Week 22 49(5) 44.1 sec.(6) 29(0) 10:57(4) 15
Following his final failure of the PFT, Bauer met with Academy officials to assess his situation. He was given three options: (1) resign with the possibility of future employment with the FBI; (2) resign permanently; or (3) be fired. Bauer chose the first option and immediately signed a resignation letter. Two weeks later, the FBI offered Bauer a position as an Intelligence Analyst in its Chicago Field Office. He accepted and has been employed in that position since 2009.
On April 2, 2012, Bauer filed this Title VII action in the Northern District of Illinois against the Attorney General.
On November 8, 2013, the Attorney General and Bauer filed cross-motions for summary judgment, supported by voluminous exhibits. In addition to evidence memorializing the FBI's development of the PFT, the parties presented reports from various experts and sworn statements from individuals involved in the FBI's statistical
In his summary judgment motion, Bauer maintained that the FBI's use of the gender-normed PFT standards was facially discriminatory, and that the FBI could not justify their use under any lawful defense to Title VII liability. The Attorney General's summary judgment motion, on the other hand, contended that the gender-normed PFT standards do not discriminate against male Trainees, in that the standards impose equal burdens of compliance on both sexes.
By its decision of June 10, 2014, the district court agreed with Bauer, granting his motion for summary judgment and denying the Attorney General's. See Bauer, 25 F.Supp.3d at 865. The court ruled that, because Bauer would have been required to do fewer push-ups had he been a woman, the gender-normed PFT standards contravene Title VII's prohibition of sex discrimination. See id. at 856. For the same reason, the court determined that the standards run afoul of Title VII's bar against the use of different cutoff scores on employment tests. See id. at 859.
Having concluded that the PFT standards facially discriminate on the basis of sex, the district court sua sponte examined whether the Attorney General nonetheless possessed a legal defense to Title VII liability under two potential exceptions. More specifically, the court considered the applicability of Title VII's bona fide occupational qualification defense (the "BFOQ defense"), which allows for differential treatment of men and women if sex "is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." See 42 U.S.C. § 2000e-2(e). The court also assessed whether the PFT standards could survive under the defense outlined by the Supreme Court in Ricci v. DeStefano (the "Ricci defense"), which permits disparate treatment on the basis of a statutorily protected trait (such as sex) where the employer has "a strong basis in evidence to believe it will be subject to disparate-impact liability" unless it takes discriminatory action. See 557 U.S. 557, 585, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). Ultimately, the district court rejected the BFOQ and Ricci defenses. See Bauer, 25 F.Supp.3d at 860 & n. 30, 864.
The Attorney General has filed a timely notice of appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court's award of summary judgment, viewing the facts in the light most favorable to the nonmoving party. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 276 (4th Cir.2015) (en banc). Summary judgment is not appropriate unless the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a).
The Attorney General contends on appeal that the district court erred in granting summary judgment to Bauer, in that the court applied an incorrect legal rule to its assessment of the FBI's use of the gender-normed PFT standards. Bauer responds that the court applied the correct rule and rightly concluded that the gender-normed PFT standards constitute sex discrimination under Title VII.
Title VII requires that any "personnel actions affecting employees or applicants for employment" taken by federal employers "shall be made free from any discrimination based on . . . sex." 42 U.S.C. § 2000e-16(a). That proscription against sex discrimination also extends to the use of "different cutoff scores for . . . employment related tests." Id. § 2000e-2(l). A plaintiff is entitled to demonstrate discrimination by showing that the employer uses a facially discriminatory employment practice. In 1978, the Supreme Court outlined in its Manhart decision what it called a "simple test" for identifying facial sex discrimination:
In this proceeding, the district court applied the Manhart test and concluded that, because Bauer would have been held to a lower minimum number of push-ups had he been a woman, the gender-normed PFT standards constitute facial sex discrimination. The Attorney General maintains on appeal, however, that because the PFT assesses an overall level of physical fitness, and equally fit men and women possess innate physiological differences that lead to different performance outcomes, the PFT's gender-normed standards actually require the same level of fitness for all Trainees. In that way, the Attorney General contends, the PFT standards do not treat the sexes differently and therefore do not contravene Title VII.
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. Of those decisions, the Attorney General primarily relies on Powell v. Reno, No. 962743, 1997 U.S. Dist. LEXIS 24169 (D.D.C. July 24, 1999), and Hale v. Holder, EEOC Dec. No. 570-2007-00423X (Sept. 20, 2010). Of note, Powell and Hale specifically addressed and approved of the FBI's use of gender-normed standards at the Academy and thus bear directly on this appeal. Those decisions, in turn, relied largely on the Ninth Circuit's en banc decision in Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir.1982) (en banc), cert. denied, 460 U.S. 1074, 103 S.Ct. 1534, 75 L.Ed.2d 954 (1983).
In Powell, the district court assessed the FBI's pre-PFT, five-part test as part of a Title VII action that was similar to Bauer's. See 1997 U.S. Dist. LEXIS 24169, at *1. Powell had failed to meet the standards for male Trainees, but contended that he may have passed the test had the FBI applied the "less stringent standards" that applied to female Trainees. Id. at *9. By its 1997 decision, the court rejected that proposition and explained that "Title VII allows employers to make distinctions based on undeniable physical differences between men and women . . . where no significantly greater burden of compliance [is] imposed on either sex." Id. at *9-10 (internal quotation marks omitted). Recognizing that physiological differences between the sexes "result in males and females of similar fitness levels performing differently on physical tests," the Powell court concluded that the FBI's gender-normed standards accounted for those differences and did not constitute sex discrimination. Id. at *11.
In Hale—a more recent proceeding before the Equal Employment Opportunity Commission (the "EEOC")—the complainant pursued a Title VII claim nearly identical to the one that Bauer sponsors: that of a male New Agent Trainee who failed to meet the PFT's current male standards. See EEOC Dec. No. 570-2007-00423X, slip op. at 2. Hale contended that the FBI "held females to less rigorous physical requirements than males" and thus violated Title VII's proscription against sex discrimination. Id. at 4. The administrative law judge adopted the approach taken by
Finally, Gerdom involved a Title VII challenge by female flight attendants against their employer's allegedly discriminatory weight-limit policy. As relevant here, the court of appeals recognized that "physiologically based policies which set a higher maximum weight for men than for women of the same height" would be permissible because "no significantly greater burden of compliance was imposed on either sex." Id. at 606. That decision has been applied in the Ninth Circuit to challenges against policies regarding weight and appearance requirements. See, e.g., Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104, 1109 (9th Cir.2006) (en banc). The Powell and Hale decisions each applied Gerdom's "equally burdensome" test and concluded that the FBI's gender-normed physical fitness benchmarks did not violate Title VII because they imposed equal burdens of compliance on men and women. See Powell, 1997 U.S. Dist. LEXIS 24169, at *10-11 (citing Gerdom, 692 F.2d at 606); Hale, EEOC Dec. No. 570-2007-0423X, slip op. at 6 (same).
Among several other authorities relied upon by the Attorney General, she emphasizes two: one from the Supreme Court and the other from the Third Circuit. See United States v. Virginia ("VMI"), 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); Lanning v. Se. Pa. Transp. Auth., 181 F.3d 478 (3d Cir.1999). Although neither decision directly addressed the Title VII facial discrimination theory pursued by Bauer, the Attorney General posits that both provide insight into when an employer can consider the physiological differences between the sexes.
In the VMI case, the Supreme Court ruled that Virginia had violated the Equal Protection Clause by excluding women from admission to its all-male military academy. In recognizing the realities of coeducation, the Court explained "that women's admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets." 518 U.S. at 540, 116 S.Ct. 2264 (emphasis added). The Court also observed by footnote that "[a]dmitting women to VMI would undoubtedly require alterations necessary . . . to adjust aspects of the physical training programs." Id. at 550 n. 19, 116 S.Ct. 2264. In support of that proposition, the Court relied on the statutory notes placed by Congress into 10 U.S.C. § 4342, which in turn explained that the "academic and other standards" for women admitted to the various service academies "shall be the same as those required for male individuals, except for those minimum essential adjustments in such standards required because of physiological differences between male and female individuals." Id. The Attorney General thus maintains that the VMI decision shows "that some differential treatment of men and women based upon inherent physiological differences is not only lawful but also potentially required." Br. of Appellant 29.
In Lanning, the Third Circuit analyzed a Title VII disparate impact challenge made by female applicants for transit officer positions with the Philadelphia transit authority. See 181 F.3d at 484.
If the transit authority could not show that the twelve-minute standard represented the minimum qualification to be a transit officer, and the authority nevertheless wanted to ensure aerobic fitness in its officers, Lanning offered by footnote a suggestion: "institute a non-discriminatory test for excessive levels of aerobic capacity such as a test that would exclude 80% of men as well as 80% of women through separate aerobic capacity cutoffs for the different sexes." 181 F.3d at 490 n. 15. As the Third Circuit explained, such a solution would achieve the transit authority's fitness goals "without running afoul of Title VII." Id. The Attorney General thus contends that Lanning expressly endorsed the use of gender-normed physical fitness standards under Title VII.
Having considered the foregoing authorities, we must ascertain and identify the rule that is applicable in this proceeding. The district court rejected the FBI's contention that the "no greater burden" test espoused by the Ninth Circuit in Gerdom, and applied by Powell and Hale, authorized the use of the gender-normed PFT standards at the Academy. Instead, the district court relied on the plain language of Title VII and Manhart's "simple test" for sex discrimination, explaining that, but for Bauer's sex, he would have been required to complete fourteen push-ups instead of thirty. On that basis, the court concluded that the gender-normed standards constitute sex discrimination in contravention of Title VII. We are constrained to disagree.
Men and women simply are not physiologically the same for the purposes of physical fitness programs. The Supreme Court recognized as much in its discussion of the physical training programs addressed in the VMI litigation, albeit in the context of a different legal claim than that presented today. The Court recognized that, although Virginia's use of "generalizations about women" could not be used to exclude them from VMI, some differences between the sexes were real, not perceived, and therefore could require accommodations. See VMI, 518 U.S. at 550 & n. 19, 116 S.Ct. 2264. To be sure, the VMI decision does not control the outcome of this appeal. Nevertheless, the Court's observation therein regarding possible alterations to the physical training programs of the service academies informs our analysis of Bauer's Title VII claims. That is, 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. See Lanning, 181 F.3d at 490 n. 15 (suggesting that use of gender-normed cutoff scores for aerobic capacity would not contravene Title VII); see also Michael M. v. Superior Court of Sonoma Cty., 450 U.S. 464, 469, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (plurality opinion) ("[T]his Court has consistently
At bottom, as the Powell and Hale decisions recognized, the physiological differences between men and women impact their relative abilities to demonstrate the same levels of physical fitness. In other words, equally fit men and women demonstrate their fitness differently. Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness. A singular focus on the "but for" element of Bauer's claim offers the obvious conclusion that the numbers of push-ups men and women must complete are not the same, but skirts the fundamental issue of whether those normalized requirements treat men in a different manner than women. In recognition of that distinction, we agree with the rule enunciated in Powell and in Hale.
Put succinctly, an employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each. Because the FBI purports to assess physical fitness by imposing the same burden on both men and women, this rule applies to Bauer's Title VII claims. Accordingly, the district court erred in failing to apply the rule in its disposition of Bauer's motion for summary judgment.
Although Bauer has consistently opposed the rule we adopt today, he has argued in the alternative, both on appeal and in the district court, that the rule does not preclude a summary judgment award in his favor.
We are not restricted to resolving an appeal solely on the grounds relied on by the district court. Indeed, we can "affirm on any legal and factual basis fairly presented in the district court and preserved for review." PHP Healthcare Corp. v. EMSA Ltd. P'ship, 14 F.3d 941, 945 (4th Cir.1993). Furthermore, although the denial of a summary judgment request "is not independently reviewable," we can "review such an order when it is appealed with an order granting a cross-motion for summary judgment." Nat'l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 293 (4th Cir.1998). And, if the facts are undisputed, "we are free to direct the entry of an order awarding summary judgment to the party whose motion was denied." Id.
This appeal presents an added layer of complexity, however, because the district court awarded summary judgment to Bauer on the basis of an erroneous legal
Pursuant to the foregoing, we vacate the judgment of the district court and remand for such other and further proceedings as may be appropriate.
VACATED AND REMANDED