PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2323

JAY J. BAUER,

Plaintiff – Appellee,

v.

LORETTA E. LYNCH, Attorney General, Department of Justice,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. T. S. Ellis, III, Senior 

District Judge. (1:13-cv-00093-TSE-JFA)

Argued: September 15, 2015 Decided: January 11, 2016

Before KING and HARRIS, Circuit Judges, and George J. HAZEL, 

United States District Judge for the District of Maryland, 

sitting by designation.

Vacated and remanded by published opinion. Judge King wrote the 

opinion, in which Judge Harris and Judge Hazel joined.

ARGUED: Charles W. Scarborough, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Appellant. Michelle Reese 

Andrew, ANDREW LAW GROUP LLC, Wilmette, Illinois, for Appellee. 

ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Alexandria, Virginia, Benjamin C. Mizer, 

Principal Deputy Assistant Attorney General, Marleigh D. Dover, 

Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, 

D.C., for Appellant. Paul K. Vickrey, NIRO, HALLER & NIRO,
2

Chicago, Illinois; Craig C. Reilly, Alexandria, Virginia, for 

Appellee.
3

KING, Circuit Judge:

For more than ten years, the FBI has measured the physical 

fitness of its New Agent Trainees (“Trainees”) by using gendernormed standards. In July 2009, plaintiff Jay J. Bauer flunked 

out of the FBI Academy after falling a single push-up short of 

the thirty required of male Trainees. Bauer then filed this 

Title VII civil action, alleging that the FBI had discriminated 

against him on the basis of sex, in that female Trainees were 

required to complete only fourteen push-ups. The Attorney 

General and Bauer filed cross-motions for summary judgment, and 

the district court granted Bauer’s motion. See Bauer v. Holder, 

25 F. Supp. 3d 842 (E.D. Va. 2014). The Attorney General has 

appealed and, as explained below, we vacate and remand.

I.

A.

The FBI trains its Special Agent recruits at the FBI 

Academy in Quantico, Virginia.1 The twenty-two week program 

consists of four main components that assess Trainees’

proficiency and suitability for FBI service, each of which must 

 1 Because we are reviewing the district court’s award of 

summary judgment to Bauer, we recount the facts in the light 

most favorable to the Attorney General. See Rossignol v. 

Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003).
4

be successfully completed to graduate from the Academy:

academics; firearms training; practical applications and skills; 

and defensive tactics and physical fitness. Various assessment 

tools are used to ensure that Trainees demonstrate adequate 

proficiency in each component of the Academy’s curriculum. For 

example, academic training requires successful completion of a 

series of written examinations. Firearms training requires 

attendance at training sessions and the successful completion of 

marksmanship qualifications. Of importance here, all Trainees 

must pass a physical fitness test (the “PFT”).

According to the FBI, Trainees must pass the PFT and

thereby demonstrate their physical fitness for two primary

reasons. First, a basic level of physical fitness and 

conditioning leads to strong and injury-free performance at the 

Academy. Second, physical fitness supports effective training 

and application of the elements taught within the defensive 

tactics program, which include self-defense, combat, and 

restraining techniques. The FBI developed the PFT to ensure 

that those aims would be satisfied and to identify the Trainees

who possess the initiative and perseverance required of a 

Special Agent. The FBI requires every Special Agent recruit to

pass the PFT twice: once to gain admission to the Academy, and 

a second time to graduate.
5

The FBI has not always utilized the current version of the 

PFT. Prior to 2004, prospective Trainees proved themselves 

physically fit for admission to the Academy by completing a 

timed 1.5-mile run. Once at the Academy, Trainees were required

to pass a five-part test, comprised of pull-ups, sit-ups, pushups, a 120-yard shuttle run, and a two-mile run. Despite the 

use of the 1.5-mile run as an admissions requirement, physically 

unfit Trainees sometimes gained admission to the Academy. As a 

result, some Trainees suffered injuries, and the Academy’s 

instructors spent substantial time coaching Trainees into shape 

rather than focusing on the Academy’s curriculum. Moreover, 

because the five-part test had not been formally validated as a

physical fitness assessment, the FBI would not dismiss Trainees

solely for failing it. Accordingly, in 2003, the FBI decided to 

develop the PFT, which would be used as a requirement for both 

admission to and graduation from the Academy, and could be 

validated as a reliable assessment tool for personnel decisions.

To design the new testing protocol, the FBI considered a 

list of more than 200 essential tasks of the Special Agent 

position and determined that nearly half of those tasks related 

directly to overall physical fitness. Supervisory agents in 

charge of physical training at the Academy offered expertise 

regarding the types of training events that best served as 

indicators of Trainees’ overall levels of physical fitness. The 
6

FBI also considered standards of the exercise physiology 

industry. Those deliberations led to the selection of four 

events, to be completed in a single test in the following 

sequence: one minute of sit-ups; a 300-meter sprint; push-ups 

to exhaustion; and a 1.5-mile run. The events required Trainees 

to demonstrate baseline levels of fitness in core muscle

strength and endurance, short-term physical power and speed, 

upper body strength and endurance, and aerobic capacity and 

endurance, respectively.

With the battery of events selected, the FBI evaluated and 

developed the minimum standards that Trainees would be required

to satisfy in order to pass the PFT. To that end, the FBI

implemented the PFT as a pilot program in each of its seven 2003 

Academy classes and analyzed the results (the “Pilot Study”). 

The Pilot Study consisted of 322 Trainees — 258 men and 64 women

— who completed the PFT during their first week at the Academy. 

The Pilot Study results were then subjected to thorough 

statistical analyses and standardized so that the FBI could 

compare Trainees both within and across the four events.

As a part of the statistical standardization, the FBI

sought to normalize testing standards between men and women in 

order to account for their innate physiological differences. 

The FBI reasoned that, due to such distinctions, equally fit men 

and women would perform differently in the same events. 
7

Accordingly, the FBI determined that male and female Trainees 

would be required to complete the four PFT events, but that

different minimum standards would be established for each sex. 

The FBI concluded that use of such a gender-normed framework 

would have the complementary benefits of allowing the 

measurement of equivalent fitness levels between men and women

while also mitigating the negative impact that would otherwise 

result from requiring female Trainees to satisfy the maleoriented standards. The practice also aligned with the FBI’s 

use of gender-normed standards on the predecessor 1.5-mile run 

and five-part test.

After assessing the Pilot Study’s results, the FBI computed 

the mean result and standard deviations therefrom in each event 

for each sex. Using that data, the FBI applied a point system

to score each of the four events. For each event, Trainees

could score one point for achieving the minimum standard, three 

points for achieving the Pilot Study’s mean, and four or more 

points for above-average achievement, with a maximum of ten 

points. To successfully complete the PFT, Trainees had to score 

at least twelve points across all four events, with at least a 

single point earned in each event. That scoring system allowed

Trainees who could demonstrate only a minimum, below-average

level of fitness in one event to compensate by demonstrating 

above-average fitness in other events.
8

To receive the minimum passing score in each of the four

events, Trainees would need to satisfy the following standards, 

which were fixed at one standard deviation below the Pilot 

Study’s mean result for each sex:

Event Men Women

Sit-ups 38 35

300-meter sprint 52.4 seconds 64.9 seconds

Push-ups 30 14

1.5-mile run 12 minutes, 42 seconds 13 minutes, 59 seconds

The foregoing standards reflected the Pilot Study’s results for 

the fifteenth percentile in each event, that is, eighty-five 

percent of Trainees were expected to earn at least one point in 

each event. Within the push-up event, the FBI found that 84.3% 

of male Trainees and 84.1% of female Trainees in the Pilot Study

achieved the minimum passing score or better. Finding the 

discrepancy between the passage rates statistically 

insignificant, the FBI concluded that men and women of equal 

fitness levels were equally likely to pass the PFT. Beginning

in 2004, the FBI adopted the PFT both as an Academy admission 

criterion and as a graduation requirement for its Trainees.

In early 2005, the FBI conducted a second study, evaluating

its continued use of the PFT (the “Follow-up Study”). The

Follow-up Study analyzed the results from the six 2004 Academy 

classes and compared them to those from the 2003 Pilot Study. 

The results of the Follow-up Study showed that male and female 

Trainees continued to pass the PFT at equivalent rates. More 
9

specifically, by the seventh week of the 2004 classes, 90.2% of 

male Trainees and 89.5% of female Trainees passed the PFT. Like 

the marginal difference in passage rates in the Pilot Study, the 

FBI deemed the slight discrepancy in the Follow-up Study to be 

statistically insignificant. The Follow-up Study also revealed 

that the 2004 Trainees had passed the PFT at a higher rate than 

the 2003 Trainees, suggesting that the PFT was not as

challenging as initially envisioned. Notwithstanding that 

revelation, the FBI kept the Pilot Study’s standards in place

and continued to use the PFT as a screening test and Academy 

graduation requirement.

B.

After the attacks of September 11, 2001, plaintiff Jay J. 

Bauer resolved to contribute to the defense of our country by

becoming a Special Agent in the FBI. Having earned a master’s 

degree in speech language pathology from Northwestern 

University, he applied to the FBI in 2001, but was rejected due 

to insufficient work experience. Bauer then continued his 

studies and earned a Ph.D. in human communication sciences from 

Northwestern in 2004. He subsequently served as an assistant 

professor at the University of Wisconsin-Milwaukee.

When Bauer reapplied to the FBI in 2008, it was interested

in his application. Bauer moved through the applicant screening 

process with relative ease, passing written tests, completing 
10

interviews, and satisfying the requisite background checks. 

Then the time came for him to successfully complete the PFT to 

gain admission to the Academy. In October 2008, Bauer took the 

PFT for the first time and failed. Although he achieved sixteen 

points on the test, Bauer completed only twenty-five push-ups, 

five short of the minimum required. The FBI allowed Bauer to 

retest in January 2009, and he passed, that time completing

thirty-two push-ups. With his fitness screening complete, the 

FBI invited Bauer to report to the Academy on March 1, 2009. 

Bauer thus resigned his university position and went to Quantico

to train with the FBI.

Bauer’s time at the Academy largely showed great potential 

for a career as a Special Agent. He passed all academic tests, 

demonstrated proficiency in his firearms and defensive tactics 

training, and met all expectations for the practical 

applications and skills components of the Academy. Bauer’s

classmates also selected him as the class leader and 

spokesperson for the Academy graduation. Unfortunately, Bauer 

faced a dilemma: he was unable to pass the PFT at Quantico.

During his twenty-two weeks at the Academy, Bauer took the 

PFT five times. On each occasion, he would have passed but for 

his failure to achieve the minimum standard for push-ups. 

Bauer’s results, and his corresponding point scores for each 

event, were as follows:
11

Week Sit-ups

300-meter

sprint Push-ups

1.5-mile

run

Total 

Points

Week 1 40

(2)

42.6 sec.

(8)

26

(0)

10:49

(4) 14

Week 7 47

(4)

43.4 sec.

(7)

25

(0)

10:24

(5) 16

Week 14 50

(6)

43.7 sec.

(7)

28

(0)

10:45

(4) 17

Week 18 51

(6)

43.8 sec.

(7)

27

(0)

11:09

(4) 17

Week 22 49

(5)

44.1 sec.

(6)

29

(0)

10:57

(4) 15

Following his final failure of the PFT, Bauer met with 

Academy officials to assess his situation. 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 immediately signed a resignation 

letter. Two weeks later, the FBI offered Bauer a position as an 

Intelligence Analyst in its Chicago Field Office. He accepted

and has been employed in that position since 2009.

C.

On April 2, 2012, Bauer filed this Title VII action in the 

Northern District of Illinois against the Attorney General.2 

According to the claims in Bauer’s complaint, the FBI’s use of 

the gender-normed PFT standards contravened two of Title VII’s

 2 Pursuant to 42 U.S.C. § 2000e-16(c), Title VII 

discrimination claims against federal employers may be pursued

against “the head of the department.” The Attorney General 

heads the Department of Justice, which includes the FBI. See

28 U.S.C. §§ 503, 531.
12

provisions: 42 U.S.C. § 2000e-16(a), which prohibits sex 

discrimination by federal employers3; and 42 U.S.C. § 2000e-2(l), 

which prohibits the use of different cutoff scores on employment 

tests on the basis of sex.4 On January 4, 2013, the Illinois 

district court granted the Attorney General’s motion to transfer 

these proceedings to the Eastern District of Virginia.

On November 8, 2013, the Attorney General and Bauer filed 

cross-motions for summary judgment, supported by voluminous 

exhibits. In addition to evidence memorializing the FBI’s

development of the PFT, the parties presented reports from 

various experts and sworn statements from individuals involved 

in the FBI’s statistical analyses of its fitness testing and in 

the implementation of the PFT at the Academy. To further assist 

 3 Rather than correctly specifying 42 U.S.C. § 2000e-16(a), 

Bauer’s complaint alleged a violation of 42 U.S.C. § 2000e-2(a), 

which deals with discrimination in the private sector. 

Moreover, the district court analyzed his claim under § 2000e2(a). That is of no moment, however, as we have treated 

§§ 2000e-2(a) and 2000e-16(a) as comparable, with the liability 

standards governing the former being applicable to the latter. 

See, e.g., Brown v. Perry, 184 F.3d 388, 393-94 (4th Cir. 1999) 

(applying private-sector Title VII principles to discrimination 

claim against federal employer).

4 Section 2000e-(2)(l)’s discriminatory cutoff score 

prohibition applies to “a respondent,” which includes a “Federal 

entity subject to section 2000e-16.” See 42 U.S.C. § 2000e(n). 
13

the district court, Bauer and the Attorney General submitted a 

document called a “Joint Statement of Facts.”5

In his summary judgment motion, Bauer maintained that the 

FBI’s use of the gender-normed PFT standards was facially 

discriminatory, and that the FBI could not justify their use 

under any lawful defense to Title VII liability. The Attorney 

General’s summary judgment motion, on the other hand, contended

that the gender-normed PFT standards do not discriminate against 

male Trainees, in that the standards impose equal burdens of 

compliance on both sexes.6

 5 Although nominally entitled as a “Joint Statement of 

Facts,” only the first ten of the sixty-six pages of that 

submission by the parties contained undisputed facts. Those ten 

pages recounted general facts about the Special Agent and 

Intelligence Analyst positions, Bauer’s application to the FBI, 

the Academy curriculum, and Bauer’s performance at the Academy 

and his PFT results. After the first ten pages, Bauer offered 

twenty-six pages of his “undisputed facts” that the Attorney 

General either admitted with some qualifications or deemed 

immaterial, irrelevant, or otherwise disputed. Thereafter the 

Attorney General offered thirty pages of her own “undisputed 

facts,” which Bauer likewise admitted with qualifications or 

deemed immaterial, irrelevant, or otherwise disputed.

6 In her summary judgment request, the Attorney General also 

asserted that, because Bauer had chosen to resign from the 

Academy, he had not faced an adverse employment action and thus 

could not prove employment discrimination. The district court 

rejected that contention, concluding that the FBI had forced 

Bauer to choose between termination and resignation. See Bauer, 

25 F. Supp. 3d at 853-54. The Attorney General does not 

challenge that ruling on appeal.
14

D.

By its decision of June 10, 2014, the district court agreed

with Bauer, granting his motion for summary judgment and denying 

the Attorney General’s. See Bauer, 25 F. Supp. 3d at 865. The 

court ruled that, because Bauer would have been required to do 

fewer push-ups had he been a woman, the gender-normed PFT

standards contravene Title VII’s prohibition of sex

discrimination. See id. at 856. For the same reason, the court

determined that the standards run afoul of Title VII’s bar

against the use of different cutoff scores on employment tests. 

See id. at 859.

Having concluded that the PFT standards facially 

discriminate on the basis of sex, the district court sua sponte

examined whether the Attorney General nonetheless possessed a

legal defense to Title VII liability under two potential

exceptions. More specifically, the court considered the 

applicability of Title VII’s bona fide occupational 

qualification defense (the “BFOQ defense”), which allows for 

differential treatment of men and women if sex “is a bona fide 

occupational qualification reasonably necessary to the normal 

operation of that particular business or enterprise.” See 42 

U.S.C. § 2000e-2(e). The court also assessed whether the PFT

standards could survive under the defense outlined by the 

Supreme Court in Ricci v. DeStefano (the “Ricci defense”), which 
15

permits disparate treatment on the basis of a statutorily 

protected trait (such as sex) where the employer has “a strong 

basis in evidence to believe it will be subject to disparateimpact liability” unless it takes discriminatory action. See

557 U.S. 557, 585 (2009). Ultimately, the district court

rejected the BFOQ and Ricci defenses. See Bauer, 25 F. Supp. 3d 

at 860 & n.30, 864.7 Accordingly, the court ruled that the 

Attorney General was liable to Bauer for sex discrimination in 

the FBI’s use of the gender-normed PFT standards.8

II.

The Attorney General has filed a timely notice of appeal,

and we possess jurisdiction pursuant to 28 U.S.C. § 1291. We 

review de novo a district court’s award of summary judgment, 

viewing the facts in the light most favorable to the nonmoving 

 7 The Attorney General did not pursue either the BFOQ 

defense or the Ricci defense in the district court proceedings. 

As explained at oral argument, she declined to concede that the 

PFT standards treated male and female Trainees unequally.

8 By its subsequent remedial order, the district court 

awarded Bauer back pay and damages and directed the FBI to 

reinstate him as a Special Agent. See Bauer v. Holder, No. 

1:13-cv-00093 (E.D. Va. Oct. 3, 2014), ECF No. 157. The court 

also barred the FBI from requiring Bauer to complete the Academy 

training program again, although it authorized the FBI to impose 

supplemental training and an age-related physical fitness test. 

On December 8, 2014, we stayed the remedial order pending this 

appeal.
16

party. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 

276 (4th Cir. 2015) (en banc). Summary judgment is not 

appropriate unless the movant shows that there is no genuine 

dispute as to any material fact and that the movant is entitled 

to judgment as a matter of law. See Fed. R. Civ. P. 56(a).

III.

A.

The Attorney General contends on appeal that the district 

court erred in granting summary judgment to Bauer, in that the 

court applied an incorrect legal rule to its assessment of the 

FBI’s use of the gender-normed PFT standards. Bauer responds 

that the court applied the correct rule and rightly concluded 

that the gender-normed PFT standards constitute sex 

discrimination under Title VII.9 Because this appeal involves a 

 9 We have recognized that, although “it may be useful to 

disaggregate the definition of ‘gender’ from ‘sex’ for some 

purposes” — the former referring to “cultural or attitudinal 

characteristics distinctive to the sexes, as opposed to their 

physical characteristics” — courts have frequently “used the 

term ‘sex’ and ‘gender’ interchangeably to refer simply to the 

fact that an employee is male or female.” See Hopkins v. Balt. 

Gas & Elec. Co., 77 F.3d 745, 749 n.1 (4th Cir. 1996). Both 

biological and cultural differences can give rise to Title VII 

sex discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 

228, 250-51 (1989) (plurality opinion). Although the FBI’s 

normalized standards are based on biological differences, we use 

the term “gender-normed standards” to be consistent with the 

parties’ use of that term. The term refers to standards like 

those used in the PFT, which are differentiated based on sex, 

(Continued)
17

relatively novel issue, we will first identify some pertinent

legal authorities, including those on which the Attorney General 

relies.

1.

Title VII requires that any “personnel actions affecting 

employees or applicants for employment” taken by federal 

employers “shall be made free from any discrimination based on 

. . . sex.” 42 U.S.C. § 2000e-16(a). That proscription against 

sex discrimination also extends to the use of “different cutoff

scores for . . . employment related tests.” Id. § 2000e-2(l). 

A plaintiff is entitled to demonstrate discrimination by showing 

that the employer uses a facially discriminatory employment 

practice. In 1978, the Supreme Court outlined in its Manhart

decision what it called a “simple test” for identifying facial 

sex discrimination: such discrimination appears “where the 

evidence shows treatment of a person in a manner which but for 

that person’s sex would be different.” See City of Los Angeles, 

Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978)

(internal quotation marks omitted); see also Int’l Union, United 

Auto., Aerospace & Agric. Implement Workers of Am., UAW v. 

 

but intended to be equivalent as between men and women. 

Meanwhile, we use the term “sex discrimination” to describe the 

conduct proscribed by Title VII.
18

Johnson Controls, Inc., 499 U.S. 187, 200 (1991) (explaining

Manhart’s “simple test” in sex discrimination litigation). 

In this proceeding, the district court applied the Manhart

test and concluded that, because Bauer would have been held to a 

lower minimum number of push-ups had he been a woman, the 

gender-normed PFT standards constitute facial sex 

discrimination. The Attorney General maintains on appeal, 

however, that because the PFT assesses an overall level of 

physical fitness, and equally fit men and women possess innate

physiological differences that lead to different performance 

outcomes, the PFT’s gender-normed standards actually require the 

same level of fitness for all Trainees. In that way, the 

Attorney General contends, the PFT standards do not treat the 

sexes differently and therefore do not contravene Title VII.

2.

Among the few decisions to confront the use of gendernormed physical fitness standards in the Title VII context, none 

has deemed such standards to be unlawful. Of those decisions, 

the Attorney General primarily relies on Powell v. Reno, No. 96-

2743, 1997 U.S. Dist. LEXIS 24169 (D.D.C. July 24, 1999), and

Hale v. Holder, EEOC Dec. No. 570-2007-00423X (Sept. 20, 2010). 

Of note, Powell and Hale specifically addressed and approved of

the FBI’s use of gender-normed standards at the Academy and thus 

bear directly on this appeal. Those decisions, in turn, relied 
19

largely on the Ninth Circuit’s en banc decision in Gerdom v. 

Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982) (en 

banc), cert. denied, 460 U.S. 1074 (1983).

In Powell, the district court assessed the FBI’s pre-PFT, 

five-part test as part of a Title VII action that was similar to 

Bauer’s. See 1997 U.S. Dist. LEXIS 24169, at *1. Powell had 

failed to meet the standards for male Trainees, but contended 

that he may have passed the test had the FBI applied the “less 

stringent standards” that applied to female Trainees. Id. at 

*9. By its 1997 decision, the court rejected that proposition

and explained that “Title VII allows employers to make 

distinctions based on undeniable physical differences between 

men and women . . . where no significantly greater burden of 

compliance [is] imposed on either sex.” Id. at *9-10 (internal 

quotation marks omitted). Recognizing that physiological 

differences between the sexes “result in males and females of 

similar fitness levels performing differently on physical 

tests,” the Powell court concluded that the FBI’s gender-normed 

standards accounted for those differences and did not constitute 

sex discrimination. Id. at *11.

In Hale — a more recent proceeding before the Equal 

Employment Opportunity Commission (the “EEOC”) — the complainant 

pursued a Title VII claim nearly identical to the one that Bauer 

sponsors: that of a male New Agent Trainee who failed to meet 
20

the PFT’s current male standards. See EEOC Dec. No. 570-2007-

00423X, slip op. at 2. Hale contended that the FBI “held 

females to less rigorous physical requirements than males” and 

thus violated Title VII’s proscription against sex 

discrimination. Id. at 4. The administrative law judge adopted 

the approach taken by the Powell court and recognized that 

“distinctions based on the obvious physical differences between 

men and women” do not per se contravene Title VII. Id. at 4-5. 

Concluding that the PFT did not impose unequal burdens on either 

sex, the ALJ rejected Hale’s discrimination claim.

Finally, Gerdom involved a Title VII challenge by female 

flight attendants against their employer’s allegedly 

discriminatory weight-limit policy. As relevant here, the court 

of appeals recognized that “physiologically based policies which 

set a higher maximum weight for men than for women of the same 

height” would be permissible because “no significantly greater 

burden of compliance was imposed on either sex.” Id. at 606. 

That decision has been applied in the Ninth Circuit to 

challenges against policies regarding weight and appearance 

requirements. See, e.g., Jespersen v. Harrah’s Operating Co., 

Inc., 444 F.2d 1104, 1109 (9th Cir. 2006) (en banc). The Powell

and Hale decisions each applied Gerdom’s “equally burdensome” 

test and concluded that the FBI’s gender-normed physical fitness

benchmarks did not violate Title VII because they imposed equal 
21

burdens of compliance on men and women. See Powell, 1997 U.S. 

Dist. LEXIS 24169, at *10-11 (citing Gerdom, 692 F.2d at 606); 

Hale, EEOC Dec. No. 570-2007-0423X, slip op. at 6 (same).

3.

Among several other authorities relied upon by the Attorney 

General, she emphasizes two: one from the Supreme Court and the 

other from the Third Circuit. See United States v. Virginia 

(“VMI”), 518 U.S. 515 (1996); Lanning v. Se. Pa. Transp. Auth., 

181 F.3d 478 (3d Cir. 1999). Although neither decision directly 

addressed the Title VII facial discrimination theory pursued by 

Bauer, the Attorney General posits that both provide insight 

into when an employer can consider the physiological differences 

between the sexes.

In the VMI case, the Supreme Court ruled that Virginia had 

violated the Equal Protection Clause by excluding women from 

admission to its all-male military academy. In recognizing the 

realities of coeducation, the Court explained “that women’s 

admission would require accommodations, primarily in arranging 

housing assignments and physical training programs for female 

cadets.” 518 U.S. at 540 (emphasis added). The Court also 

observed by footnote that “[a]dmitting women to VMI would 

undoubtedly require alterations necessary . . . to adjust 

aspects of the physical training programs.” Id. at 550 n.19. 

In support of that proposition, the Court relied on the 
22

statutory notes placed by Congress into 10 U.S.C. § 4342, which 

in turn explained that the “academic and other standards” for 

women admitted to the various service academies “shall be the 

same as those required for male individuals, except for those 

minimum essential adjustments in such standards required because 

of physiological differences between male and female 

individuals.” Id. The Attorney General thus maintains that the 

VMI decision shows “that some differential treatment of men and 

women based upon inherent physiological differences is not only 

lawful but also potentially required.” Br. of Appellant 29. 

In Lanning, the Third Circuit analyzed a Title VII 

disparate impact challenge made by female applicants for transit 

officer positions with the Philadelphia transit authority. See

181 F.3d at 484.10 The applicants challenged the transit 

authority’s use of a twelve-minute cutoff requirement for a 1.5-

mile run on the basis that female applicants failed at rates 

disproportionately higher than their male counterparts. See id.

at 492-93. The Third Circuit vacated a ruling in favor of the 

transit authority and remanded to the district court for 

application of the business necessity defense, which it 

 10 As the Supreme Court has recognized, disparate impact 

discrimination occurs when a facially neutral employment 

practice has a significantly discriminatory effect. See Griggs 

v. Duke Power Co., 401 U.S. 424, 430 (1971). 
23

explained thusly: “a discriminatory cutoff score [must] be 

shown to measure the minimum qualifications necessary for the 

successful performance of the job in question in order to 

survive a disparate impact challenge.” Id. at 490.

If the transit authority could not show that the twelveminute standard represented the minimum qualification to be a 

transit officer, and the authority nevertheless wanted to ensure 

aerobic fitness in its officers, Lanning offered by footnote a 

suggestion: “institute a non-discriminatory test for excessive 

levels of aerobic capacity such as a test that would exclude 80% 

of men as well as 80% of women through separate aerobic capacity 

cutoffs for the different sexes.” 181 F.3d at 490 n.15. As the 

Third Circuit explained, such a solution would achieve the 

transit authority’s fitness goals “without running afoul of 

Title VII.” Id. The Attorney General thus contends that

Lanning expressly endorsed the use of gender-normed physical 

fitness standards under Title VII. 

B.

Having considered the foregoing authorities, we must

ascertain and identify the rule that is applicable in this 

proceeding. The district court rejected the FBI’s contention 

that the “no greater burden” test espoused by the Ninth Circuit 

in Gerdom, and applied by Powell and Hale, authorized the use of 

the gender-normed PFT standards at the Academy. Instead, the 
24

district court relied on the plain language of Title VII and 

Manhart’s “simple test” for sex discrimination, explaining that, 

but for Bauer’s sex, he would have been required to complete 

fourteen push-ups instead of thirty. On that basis, the court 

concluded that the gender-normed standards constitute sex 

discrimination in contravention of Title VII. We are 

constrained to disagree. 

Men and women simply are not physiologically the same for 

the purposes of physical fitness programs. The Supreme Court 

recognized as much in its discussion of the physical training 

programs addressed in the VMI litigation, albeit in the context 

of a different legal claim than that presented today. The Court 

recognized that, although Virginia’s use of “generalizations 

about women” could not be used to exclude them from VMI, some 

differences between the sexes were real, not perceived, and 

therefore could require accommodations. See VMI, 518 U.S. at 

550 & n.19. To be sure, the VMI decision does not control the 

outcome of this appeal. Nevertheless, the Court’s observation 

therein regarding possible alterations to the physical training 

programs of the service academies informs our analysis of

Bauer’s Title VII claims. That is, physical fitness standards

suitable for men may not always be suitable for women, and 

accommodations addressing physiological differences between the 

sexes are not necessarily unlawful. See Lanning, 181 F.3d at 
25

490 n.15 (suggesting that use of gender-normed cutoff scores for 

aerobic capacity would not contravene Title VII); see also

Michael M. v. Superior Court of Sonoma Cty., 450 U.S. 464, 469 

(1981) (plurality opinion) (“[T]his Court has consistently 

upheld statutes where the gender classification is not 

invidious, but rather realistically reflects the fact that the 

sexes are not similarly situated in certain circumstances.”).

At bottom, as the Powell and Hale decisions recognized, the 

physiological differences between men and women impact their 

relative abilities to demonstrate the same levels of physical 

fitness. In other words, equally fit men and women demonstrate 

their fitness differently. Whether physical fitness standards

discriminate based on sex, therefore, depends on whether they

require men and women to demonstrate different levels of 

fitness. A singular focus on the “but for” element of Bauer’s 

claim offers the obvious conclusion that the numbers of push-ups 

men and women must complete are not the same, but skirts the

fundamental issue of whether those normalized requirements treat

men in a different manner than women. In recognition of that 

distinction, we agree with the rule enunciated in Powell and in

Hale. 

Put succinctly, an employer does not contravene Title VII 

when it utilizes physical fitness standards that distinguish

between the sexes on the basis of their physiological 
26

differences but impose an equal burden of compliance on both men 

and women, requiring the same level of physical fitness of each. 

Because the FBI purports to assess physical fitness by imposing

the same burden on both men and women, this rule applies to 

Bauer’s Title VII claims. Accordingly, the district court erred 

in failing to apply the rule in its disposition of Bauer’s 

motion for summary judgment.

C.

Although Bauer has consistently opposed the rule we adopt 

today, he has argued in the alternative, both on appeal and in 

the district court, that the rule does not preclude a summary 

judgment award in his favor.11 At the same time, the Attorney 

General urges — under our new rule — that we direct an award of 

summary judgment to her. Because the district court did not 

address either Bauer’s alternative contention or the Attorney 

General’s summary judgment request, we must decide whether to 

address those matters in the first instance.

 11 As his alternative basis for summary judgment, Bauer 

makes a three-pronged argument. First, he contends that the 

gender-normed PFT standards are not predicated on any 

physiological differences between the sexes. Second, he 

maintains that the standards impose an undue burden of 

compliance on male Trainees compared to female Trainees. Third, 

he contends that the standards are not consistent with the 

minimum performance requirements for Special Agents of the FBI.
27

We are not restricted to resolving an appeal solely on the 

grounds relied on by the district court. Indeed, we can “affirm 

on any legal and factual basis fairly presented in the district 

court and preserved for review.” PHP Healthcare Corp. v. EMSA 

Ltd. P’ship, 14 F.3d 941, 945 (4th Cir. 1993). Furthermore, 

although the denial of a summary judgment request “is not 

independently reviewable,” we can “review such an order when it 

is appealed with an order granting a cross-motion for summary 

judgment.” Nat’l Coal. for Students with Disabilities Educ. & 

Legal Def. Fund v. Allen, 152 F.3d 283, 293 (4th Cir. 1998). 

And, if the facts are undisputed, “we are free to direct the 

entry of an order awarding summary judgment to the party whose 

motion was denied.” Id. 

This appeal presents an added layer of complexity, however, 

because the district court awarded summary judgment to Bauer on 

the basis of an erroneous legal standard. In such a 

circumstance, the better remedy is usually to remand “for a 

determination under the appropriate standard.” See Humphrey v. 

Humphrey, 434 F.3d 234, 247 (4th Cir. 2006). That is certainly 

true here, where the resolution of Bauer’s alternative 

contention and the Attorney General’s summary judgment motion 

requires multiple analyses that the district court is better 

suited to undertake in the first instance. Of particular 

significance, there is the potential for problems in the summary 
28

judgment record arising from the so-called “Joint Statement of 

Facts.” See supra note 5. A remand to the district court is 

therefore our most prudent option.

IV.

Pursuant to the foregoing, we vacate the judgment of the 

district court and remand for such other and further proceedings 

as may be appropriate.

VACATED AND REMANDED