Title VII prohibits discrimination based on gender. Employers generally cannot adopt different qualification standards for men and women for the same job. However in some circumstances, federal courts have recognized that gender-normed standards are an appropriate job qualification tool. Last month, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) approved the FBI’s separate physical qualification standards for male and female trainees.

In Baker v. Lynch, the plaintiff was a male FBI trainee who fell one pushup short of the minimum required to pass the FBI Academy’s physical fitness standard. He sued under Title VII, noting that female trainees only had to perform less than half of the pushups required of men. He claimed, and the district court agreed, that these different physical fitness standards violated Title VII because they applied to the same job.

On appeal, the Fourth Circuit reversed this decision, remanding the case for further proceedings. The court agreed that in general, Title VII prohibits employers from using different cutoff scores for men and women taking employment related tests. In this case, however, the FBI test measured overall levels of physical fitness. Equally fit men and women possess innate physiological differences that lead to different performance outcomes. In other words, the FBI’s fitness test was not intended to measure pushups as a job requirement, but rather as an indicator of overall physical fitness. Such fitness was a legitimate requirement for the FBI agent’s job.

In these circumstances, employers may apply such gender-normed qualification standards without violating Title VII. These standards do not benefit members of either gender. The FBI’s case was bolstered by its detailed statistical analysis that supported its gender-based fitness standards.