How Many Push-Ups Can You Do?

Randi Klein Hyatt
Randi Klein Hyatt

As an avid Crossfitter, I just could not resist titling this blog post this way.  Jay Bauer, however, may not love the title.  Mr. Bauer was a male special agent trainee for the FBI who failed a physical fitness test (specifically the 30 push up requirement for men).  In Bauer v. Lynch, No. 14-2323 (4th Cir. Jan. 11, 2016), he challenged that differing standards for male and female trainees (14 push-ups required for women) violates Title VII of the Civil Rights Act against sex discrimination.  While the district court had push up sympathy for Mr. Bauer (it found the push up differential improperly discriminated on the basis of sex), the Fourth Circuit disagreed.

Resolving what it called a “relatively novel issue,” the Fourth Circuit held that an employer does not violate Title VII when it uses gender-fitness standards that account for physiological differences between the sexes if those standards require the same level of fitness of both sexes.  Acknowledging two earlier decisions on the FBI’s physical fitness tests, the appellate court noted “the physiological differences between men and women impact their relative abilities to demonstrate the same levels of physical fitness.”

The kicker here: Bauer took five tries at the physical fitness test and passed all aspects, except for the 30 push-up requirement.  He missed by one rep.  The 16 push-up differential between men and women is not discriminatory, per the Fourth Circuit.  Rather, it accounts for physiological differences between men and women.  My advice to Bauer:  do some CrossFit and you’ll pass in no time.

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