The 4th Circuit Court of Appeals recently rejected a claim of sex discrimination by a male FBI trainee who was kicked out of the Quantico, Virginia academy for his inability to do 30 pushups.  Jay J. Bauer sued the FBI under Title VII of the Civil Rights Act, claiming that the requirement was discriminatory because female trainees are required to complete only 14 pushups.  The court held that Title VII does not require that male and female trainees be held to the same standards.  This is due to physiological differences between the sexes.  Who knew?  The court said that the requirement “imposed an equal burden of compliance on both men and women, requiring the same level of physical fitness in each.”  

If flexibility is also a part of the FBI’s physical training requirements, the judges of the 4th Circuit would score high on that, since they had to twist themselves into a logical pretzel to reach this conclusion.  They clearly did not want to allow Bauer to benefit from Title VII’s anti-discriminatory provisions because he’s a guy, and that law is not really meant to provide equal protections, but only to benefit certain classes of privileged people, like women.  So while the court acknowledged one physical truth in recognizing that men and women are actually physically different (which today might be seen as a sign of sanity), it then decided to reject the equally obvious physical truth that doing 14 pushups is not the same as doing 30.  

What’s truly disturbing about this ruling is that right now, at least until another federal circuit rules otherwise or the Supreme Court intervenes, it is now the law that when it comes to men and women, under Title VII, 14 equals 30.  It also means that the Obama administration’s promise that opening ground combat positions to women in the military won’t lower standards is utterly meaningless. 

As of now, a female tank crew candidate will be entitled to contest any standard that does not accommodate her physiological differences and demand an accommodation that will allow her to otherwise demonstrate the same level of physical fitness.  So when she is put in the loader’s seat and told to load a 40-lb. tank round and can’t do it, or tires after loading a few, she will have to be accommodated.  Perhaps the Army could cut the tank rounds in half, so that she can demonstrate the same level of fitness by loading twice as many 20-lb. half-shells.  Of course, you can’t shoot a cut up tank shell, but that’s an accommodation we’ll have to live with.  The tank crew could text-message the enemy and tell them that they are very diverse and would rather chat than fight.  Then war will go away. See – it will all work out.  

Of course, the same issues will now occur with any female trying out for artillery, infantry, or other ground combat positions, if the task requires upper body strength that demonstrates the physiological difference between men and women.  If a female Marine infantry recruit lacks the upper body strength to carry wounded male colleague, she might demonstrate an equal level of fitness by doing some pushups, 14 or 30 or whatever would do it.  She can do the pushups while her squadmate bleeds out.  

Now, I think any reasonably healthy man ought to be able to do 30 pushups, so I don’t feel too sorry for Bauer.  But he evidently was otherwise highly qualified, and he satisfactorily completed all the other aspects of his training, including physical ones, like running and shooting.  He got to 29 pushups and just couldn’t handle number 30 and had to go, according to the FBI.  They have their standards, after all, just not the same ones for men and women.  And neither will the military, despite the Obama administration’s promises.