Garett said he would be "surprised" if the FBI arbitrarily allowed someone to re-take a test at training. He said there could be logical reasons to explain why an agent, such as the unnamed female agent in the suit, is given a second change at the fitness test.
"I remember that people got hurt during training. If they got hurt, they might let them rest and retake the test," he said, adding that the majority of trainees he knew passed the test to become field agents.
Garrett said the responsibility is on the trainee to pass the test and "go beyond the minimum requirements."
"That's why they initiate pre-testing to assess your physical fitness and whether you would be able to sustain the multiple weeks at Quantico and pass all the tests there," Garrett said.
Bauer's suit states that he "exceeded all proficiency standards, scoring between 86 percent and 100 percent on each of the firearms qualifications and between 95 and 100 on each of the academic tests during the [New Agent Training Program]."
"It's your job to get beyond the minimum whatever it takes," Garrett said. "I've seen new agents training in the gym at nights to get beyond a passing level on all components on the physical."
Garrett said while many people come to the FBI to become field agents, as Bauer did, it is no more prestigious than an analyst's job, whose job can take place in a lab, field office or FBI headquarters.
"An analyst has an extremely important, relevant job. They make recommendations for very sensitive national security cases," he said. "The FBI could not function without the non-agents."
The suit is an "interesting twist" on a body of law that usually affects women and physical tests, said Elvia Arriola, law profesor at the Northern Illinois University.
"Though in some ways, having a male as a plaintiff is not that different than a lot of other cases of gender discrimination with women as plaintiffs," said Arriola.
In defending the test, the FBI will probably have to show there is a rational basis for it, Arriola said. She said tests are common standard procedures used by employers.
"They become problematic when it's unclear what the test calls for and how it relates to the job," she said. "There has to be a reason that is obviously connected to what they will do as agents that will make sense," she said.
She said an employer's assessment test could have a discriminatory effect if it gave one female employee "a break" and not a male employee. If the test was taken under the same circumstances, such as with the same judges on the same day, with varying results that have no reason other than bias, then Bauer may prove there was "disparate treatment."
If the varying treatment is a regular practice and is because of gender-based attitudes, Bauer could show there is a flaw in the way the FBI administers the physical fitness test, Arriola said.
"If that's the case, you're basing the whole idea on that women are not going to do well and not compete equally with men," she said. "He has the opportunity to question how and why they administer the test."
Garrett said he has seen a "number of heartbroken people over the years" who had trouble with the physical fitness or academic sides tests and were released.
"It's heartwrenching for the person," he said. "It's still your responsibility to meet those minimum standards."