FBI Applicant’s Sex Bias Claim Won’t Get High Court Review

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By Kevin McGowan

Oct. 31 — The U.S. Supreme Court won’t review the sex-bias claim of a disappointed male FBI applicant that the bureau discriminates by holding female applicants to different physical fitness requirements than men ( Bauer v. Lynch , U.S., No. 15-1489, cert. denied 10/31/16 ).

Jay Bauer was turned down after he couldn’t complete the 30 push-ups required of male applicants. He contended the FBI violated Title VII of the 1964 Civil Rights Act because it required female applicants to complete only 14 push-ups.

He argued that by using different standards based on sex when evaluating applicants for the same job, the FBI facially violated the federal anti-bias law.

Without comment, the justices Oct. 31 left intact a U.S. Court of Appeals for the Fourth Circuit decision that Title VII permits “gender-normed” physical fitness standards as long as applicants of both sexes are subjected to equal burdens.

Same Level of Fitness

In seeking review, Bauer urged the justices to resolve a “novel question” of Title VII law that affects other public safety employers in addition to the FBI.

The Fourth Circuit’s ruling can’t be reconciled with Title VII’s express language or prior Supreme Court decisions striking down sex-based differences in employment standards, he said.

The Justice Department opposed review, saying the appeals court properly ruled that if the FBI’s test uses standards that require the same level of physical fitness in men and women, it doesn’t violate Title VII.

Using a different “pass point” for the push-up component, in recognition that equally fit men and women might differ in upper-body strength, isn’t unlawful sex discrimination, the department said.

Michelle Reese Andrew of the Andrew Law Group in Wilmette, Ill., was counsel of record for Bauer. Acting Solicitor General Ian H. Gershengorn was counsel of record for the Justice Department.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

For More Information

Summaries of labor and employment cases denied Supreme Court review appear in Section E.

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