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."

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."