Employee Told to Retake Physical Fitness Test Could Proceed with Bias Claims

​A doctor who brought sex and age discrimination claims against the U.S. attorney general because she failed an allegedly discriminatory physical fitness test that was a condition of her employment and was told to either retake the test, resign or be fired could go forward with her claims, a federal appeals court ruled.

The doctor had resigned her position, and a trial court dismissed her complaint for lack of standing under Article III of the U.S. Constitution. "Article III standing" refers to a plaintiff's right to bring a lawsuit to court. In this case, the federal appeals court ruled the plaintiff has Article III standing if she suffers an injury that is a result of the challenged conduct and is likely to be remedied if the court rules in her favor.

In July 2014, the doctor accepted a job as a psychiatrist with the Bureau of Prisons (BOP) at the Federal Correctional Complex in Petersburg, Va. At that time, she was 67 years old.

As a condition of her hiring, she—like all new BOP employees regardless of age, position or gender—had to take and pass a physical abilities test. Employees taking the test were required to:

• Drag a 75-pound dummy at least 694 feet for three minutes.
• Climb a ladder to retrieve an object within seven seconds.
• Complete an obstacle course in 58 seconds.
• Run a quarter mile and handcuff someone within two minutes and 35 seconds.
• Climb three flights of stairs in 45 seconds while wearing a 20-pound weight belt.

Employees receive scores for the five components, which are aggregated and measured against a passing composite score.

The first time the doctor took the test, she failed. Under BOP policy, she could retake the test within 24 hours, but she declined. She then was told that unless she resigned, her employment with BOP would be terminated. She chose to resign.

The doctor filed a complaint in federal district court against the attorney general, claiming sex discrimination under Title VII of the Civil Rights Act of 1964 and age discrimination under the Age Discrimination in Employment Act (ADEA). The trial court dismissed the complaint, finding that the employee lacked standing to sue because she had not suffered an injury due to BOP's actions. The doctor appealed.  

Standing vs. Merits of Claim

The approach taken by the trial court, the appeals court said, improperly conflated the standing question with the merits of the doctor's claims. Standing does not turn on whether a plaintiff is likely to prevail on her claims, the court explained. Rather, a plaintiff has standing if she suffers an injury that is a result of the challenged conduct and likely to be remedied if the court rules in her favor.

The doctor, the court said, claimed that she was injured by a loss of employment and the resulting loss of wages and other benefits. Such harms are classic injuries for standing purposes, the court noted.  

In addition, to establish standing's causation requirement, the alleged injury must result from the challenged action of the defendant and not from the independent action of some third party not before the court.

A plaintiff's injury is not the result of the defendant's action if the plaintiff independently caused her own injury, the court said. The doctor's complaint alleged that BOP's ultimatum, which followed from the allegedly discriminatory policy, was the "but-for" cause of her injuries. She was told that unless she resigned, her employment with BOP would be terminated for failure to pass the test within the required time.

Maybe, the court said, the doctor's choice to resign rather than retake the test was an immediate cause of her injuries. But that did not defeat standing, the court explained. The doctor alleged that her injuries were caused by BOP's allegedly discriminatory policy requiring new hires to take and pass the test or be terminated. Without that policy, she claimed, she would not have resigned. Therefore, the court said, her alleged injuries could be said to be a result of BOP's actions.

In addition, the court said, the doctor properly alleged that her injury would likely be redressed by a favorable decision. Her injuries would be remedied by an award of damages or reinstatement to her prior position.

The court concluded that the plaintiff had standing to raise her Title VII and ADEA claims in federal court, and her complaint should not have been dismissed on that ground.

DiCocco v. Garland, 4th Cir., No. 20-1342 (Nov. 3, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.