Beginning in 2004, the FBI revised its physical fitness measure for FBI trainees (PFT), first conducting job analysis, then a Pilot Study and later a follow-up study using then-current trainees as subjects. The pilot study measured the point at which about 80% of men and about 80% of women passed the tests, and set those standards as the threshold pass rate for each. Thus, for each of the four events, trainees were required to meet certain threshold levels, but the threshold levels were different for men and women. Bauer applied to the FBI training program and was admitted. As part of his studies, he was required to pass the physical fitness test (PFT) both at the time of admission, and prior to graduation. Although he passed the PFT at admission, he was unable to do so before graduation, even after five attempts. He was given three options: (1) resign with the possibility of future employment with the FBI; (2) resign permanently; or (3) be fired. Bauer chose the first option, and resigned. The FBI offered Bauer a position as an Intelligence Analyst, and accepted. Three years later, he filed suit under Title VII, contending that the FBI’s use of the gender-normed PFT standards contravened two of Title VII’s provisions, one which prohibits sex discrimination by federal employers, and the other which prohibits the use of different cutoff scores on employment tests on the basis of sex. The district court granted summary judgment in his favor, and the Attorney General appealed. 

1.) What was the legal issue in this case? What did the appeals court decide? 

2.) Is this a disparate treatment case or a disparate impact case? Why do you say that? What difference does this make?

3.) What is the plaintiff’s argument? Why does the appeals court reject that argument and rule for the FBI? 

4.) What are some practical implications of this decision?