Fitness-for-duty exams that vary by gender may or may not be discriminatory, according to a federal judge. The judge ruled one exam used by the FBI is discriminatory.

Jay Bauer, 40, an intelligence analyst for the FBI, applied to become a special agent with the agency.

Bauer passed an initial fitness test and scored at or near the top of his class during training.

But when it came to the FBI’s rigorous fitness test, Bauer came up one pushup short. He completed 29 untimed pushups. Men taking the fitness test must do 30 pushups. Women must do 14.

Bauer sued, claiming the test is biased against men.

The FBI argued the test wasn’t discriminatory because of the physiological differences between men and women.

Now a federal judge for the Eastern District of Virginia has ruled in Bauer’s favor.

The judge ruled the FBI failed to prove the fitness test was an adequate measure of job skills, such as the ability to restrain a fleeing suspect.

The FBI didn’t prove it had a valid basis to discriminate based on gender, according to the judge.

Now Bauer will ask the judge to rule that he should be placed in a special-agent position and be paid lost wages and attorney’s fees.

Match test to job functions

To avoid legal trouble such as this, companies must match what’s measured in fitness-for-duty exams with actual job functions, according to Howard Sandler, founder of Sandler Occupational Medicine Associates, Melville, NY. Sandler spoke recently at the American Industrial Hygiene conference and expo in San Antonio, Texas.

Sandler says companies who want to use fitness-for-duty exams should have separate ones for different jobs.

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