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Posted on Friday, July 25, 2014

FBI’s More Rigorous Physical Testing For Male Applicants Deemed Unlawful Gender Discrimination

All new applicants for the FBI have to pass a physical fitness test in order to be hired as an agent.  Men have to do a minimum of 30 push-ups, while female applicants only have to do 14 push-ups.  A male applicant, who had been selected “leader” and “spokesperson” of his applicant class by his peers, passed all other tests to become an agent with the FBI.  But he could only do 29 push-ups—one shy of the minimum requirement– and therefore, he did not get an agent position with the FBI.He sued, arguing that the FBI’s higher push-up requirement for men than women was discriminatory.  The FBI responded that the different push-up requirement merely reflects the innate physical differences between men and women, and the FBI needs to ensure that all new agent hires have the requisite physical stamina to do the job.

A federal judge in Alexandria, Virginia found that the higher push-up requirement for male applicants was indeed discriminatory based on gender.  The judge recognized that in some instances, it might be permissible to have different physical fitness tests for men and women where the job requires men to exert more physical strength and stamina than women.  But in this case, the FBI expects both male and female agents to perform the same physical tasks at the same level of job performance.  Furthermore, the FBI does not require ongoing physical fitness testing by agents after they are hired.   Therefore, the FBI could not justify its policy of making men do more push-ups than women in order to be hired for the same position.

Declan Leonard, Managing Partner of Berenzweig Leonard, LLP, can be reached at DLeonard@BerenzweigLaw.com.

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