FBI Analyst Sues FBI For Gender Discrimination, Saying Fitness Test Biased Against Men

April 12, 2012 — -- A male employee of the Federal Bureau of Investigation is suing the agency for gender discrimination, claiming that a physical fitness test to become an FBI agent is biased against men.

Jay Bauer, a Ph.D. graduate of Northwestern University from Mount Prospect, Ill., said he missed the fitness test by one-push up, completing only 29 push-ups instead of the minimum 30 required for male trainees, which disqualified him from becoming a special agent. The test, administered at the FBI academy in Quantico, Va., has different physical minimum requirements for female and male trainees.

Bauer argues in the complaint that the FBI violated Title VII of the Civil Rights Act of 1964. He also alleges a trainee who failed to pass the female standards of the physical test was given a second chance.

The suit states "desiring to use his skills and experience for the public good, [Bauer] left an academic position at the University of Wisconsin-Milwaukee to join the FBI as a Special Agent." During New Agent Training at Quantico, which he joined around March 2009, he relocated his wife and two children, ages 3 and 5 at the time, to Cook County, Ill., after receiving his first office assignment to the FBI's Chicago Division. He is currently an intelligence analyst there.

Bauer said female new agent trainees became special agents despite completing fewer than half the number of push-ups and scoring fewer overall points than he did on even the female version of the physical fitness test (PFT).

One particular female trainee was "at or near the bottom of the class in performance" in firearms training, "struggled" in academics training, and appeared "to lack the dedication and mental-toughness" for the special agent position. The suit states Bauer was at or near the top of the class in performance in all other areas "and, in fact, was voted by his peers during the [New Agent Training Program] as the class leader, designating him to speak on their behalf at graduation."

Bauer and Michelle Reese Andrew, his attorney, declined to comment for the story.

The suit was filed last week in an Illinois district court against Eric Holder, Attorney General. The Department of Justice oversees the FBI.

Bill Carter, FBI spokesperson, said "it has long been [FBI's policy] to not comment on pending lawsuits," and declined to respond to the details listed in the suit.

Bauer claims the FBI "arbitrarily" selected a different minimum standard based on sex "that does not measure in any way the minimum physical ability required to do the job of a Special Agent."

To pass the PFT, male trainees must complete a minimum of 38 sit-ups and females a minimum of 35 to score one point in the sit-up event. Males must complete a minimum of 30 push-ups, females a minimum of 14, to score one point in the push-up event. Times required for 300 meter-sprints and 1.5 milers also vary.

Bauer alleges the FBI ignored data suggesting the different physical standards are not equally difficult, pointing to the Cooper Institute's "large database of fitness norms." Despite the fact that 14 push-ups for females correspond to between 27 and 29 push-ups for males, Bauer said the FBI "failed to adjust the arbitrarily selected standard of 14 for females and 30 for males."

Brad Garrett, ABC News consultant and former FBI agent, said there are reasons for different minimum scores for men and women.

"Women do not have the upper body strength that men do," he said. A "different number of pull-ups have been in place for a number of years."