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




                              2
KING, Circuit Judge:

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

fitness of its New Agent Trainees (“Trainees”) by using gender-

normed 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).



                                      3
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.



                                              4
       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, push-

ups, 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

                                            5
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.

                                                    6
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    male-

oriented 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.

                                       7
      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

                                          8
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

                                        9
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:

                                          10
                              300-meter                      1.5-mile          Total
 Week          Sit-ups                         Push-ups
                                sprint                          run           Points
                  40          42.6 sec.           26           10:49
Week 1                                                                            14
                 (2)              (8)            (0)            (4)
                  47          43.4 sec.           25           10:24
Week 7                                                                            16
                 (4)              (7)            (0)            (5)
                  50          43.7 sec.           28           10:45
Week 14                                                                           17
                 (6)              (7)            (0)            (4)
                  51          43.8 sec.           27           11:09
Week 18                                                                           17
                 (6)              (7)            (0)            (4)
                  49          44.1 sec.           29           10:57
Week 22                                                                           15
                 (5)              (6)            (0)            (4)

     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.



                                          11
provisions:        42    U.S.C.     § 2000e-16(a),      which     prohibits     sex

discrimination by federal employers 3; 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 § 2000e-
2(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).



                                          12
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.



                                    13
                                            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

                                            14
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 disparate-

impact 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



      7The 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.



                                       15
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)
                                        16
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.



                                             17
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    gender-

normed 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

                                          18
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

                                          19
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

                                              20
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

                                       21
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



      10As 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).



                                           22
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 twelve-

minute 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

                                          23
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

                                             24
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

                                           25
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.




      11As 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.



                                         26
       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

                                            27
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




                               28
