By Ryan McComb
In 2013, the United States Army began an overhaul of their physical fitness program. For over forty years, the Army has applied the Army Physical Fitness Test (hereinafter “APFT”) as the primary assessment of its Soldiers’ physical readiness for military service. This test consists of three elements: timed pushup and sit-up events each lasting two minutes, followed by a two-mile run. The APFT has undergone criticism due to the differing physical standards it places on Soldiers. Generally speaking, the APFT sets higher repetition requirements for each of the calisthenic events and requires faster times on the running event for younger, male Soldiers as compared to their female and older, male colleagues. Partially in response to this and other criticisms of the APFT, the Army began development of a new test.
The Army Combat Fitness Test (hereinafter “ACFT”) consists of six events: a three-repetition maximum deadlift, the standing power throw, the hand-release push-up arm extension, the sprint-drag-carry, a timed plank, and a two-mile run. Originally, the ACFT was designed in part to create performance standards which would be gender and age neutral. For the last few years, officially and unofficially, the ACFT has been tested by Soldiers throughout the Army and has indicated that female Soldiers in particular, but also older Soldiers, have failed at noticeably higher rates than their younger, male counterparts. After reviewing the findings of a RAND independent study, performance data, and Soldier feedback, the Army made numerous revisions to the ACFT. One such revision eliminated the age- and gender-neutral scoring standards and replaced it with what the Army calls an “age and gender performance-normed scoring scale.” This scale is similar to that used for the APFT, in that it differentiate based on the age and gender of the Soldier being assessed. Throughout development of the ACFT, concerns had been raised by Congress regarding the adverse impact that the test would have on female and older Soldiers, on those Soldiers stationed in less hospitable climates, and the impact that it would have on “recruitment and retention in critical support military occupation specialties.”
Government representatives like Senator Kirsten Gillibrand of New York and Richard Blumenthal of Connecticut, have criticized the test for its outsized expense as compared to the APFT and its inequal treatment of male and female Soldiers. Specifically, they noted that during the Army’s initial ACFT testing studies, female and older Soldiers were vastly underrepresented. This they said, raised “considerable concerns regarding the negative impact it may already be having on so many careers.”
Now, an in-depth discussion of the adequacy of the ACFT as currently written would require far more space than a short blog post. Therefore, this author will not defend the adequacy of the test itself, but rather the principle of gender and age neutrality in the scoring process. Initially, this neutrality was achieved by making the ACFT scoring standards “based on the physical demands of Soldier Military Occupational Specialties (MOS).” Generally speaking, qualification for higher intensity jobs, such as the infantry, would require a higher score on the ACFT than for support roles, such as a paralegal specialist. This could also be applied to aging Soldiers who as they are promoted, begin to take less physically demanding roles in their day-to-day jobs.
It’s true that any age- and gender-neutral test, whether the ACFT or something else, could still create some Title VII implications, both in the context of disparate impact and disparate treatment claims. However, in the case of disparate treatment claims, the use of such a standard may be considered acceptable under the Bona Fide Occupational Qualification (hereinafter “BFOQ”) exception. The BFOQ validates certain occupational requirements that, although tend to be discriminatory, are “reasonably necessary to the normal operation of the particular business.” While a BFOQ analysis would undoubtedly depend on the specifics of the physical fitness test in question, jobs which are entirely centered around the combat readiness of its Soldiers would seem to be a narrow enough exception to Title VII.
A job placement system which makes Soldiers eligible for combat roles based primarily on their ability to meet certain physical requirements then, should be valid under the BFOQ exception. As Senator’s Gillibrand and Blumenthal have expressed, any such test would need to ensure that female and older Soldiers are adequately represented throughout the development process. Whether this system is best implemented through use of the ACFT, or some other test, is beyond the scope of this article. However, when it comes to the important role that Soldiers play in combat situations, the use of a gender and age neutral qualification for combat service is necessary for the continuing success of our Army.
 Steve Beynon, Can the Army’s New Fitness Test Survive Critics and Become Official in April, Military.com (Jan. 5, 2022), https://www.military.com/daily-news/2022/01/05/can-armys-new-fitness-test-survive-critics-and-become-official-april.html.
 Rob Shaul, History of the APFT, Mountain Tactical Inst., https://mtntactical.com/knowledge/history-of-the-apft/ (stating that the APFT standards began being enforced and testing made mandatory in 1980).
 Kristen M. Griest, With Equal Opportunity Comes Equal Responsibility: Lowering Fitness Standards to Accommodate Women will Hurt the Army – and Women, Modern War Inst. at West Point (Feb. 25, 2021), https://mwi.usma.edu/with-equal-opportunity-comes-equal-responsibility-lowering-fitness-standards-to-accommodate-women-will-hurt-the-army-and-women/ (arguing that “reverting to gender-based scoring could drastically reduce the performance and effectiveness of combat army units” and that “[l]ower female standards. . . reinforce the belief that women cannot perform the same job as men. . . making it difficult for women to earn the trust and confidence of their teammates.”).
 APFT Standards, U.S. Army Basic, https://usarmybasic.com/army-physical-fitness/apft-standards (providing links to the varying performance standard tables).
 Benyon, supra note 1.
 Army Combat Fitness Test, U.S. Army, https://www.army.mil/acft/. Originally, the test included a hanging leg tuck as the measurement of overall core strength in Soldiers. See Army Combat Fitness Test, supra note 7. The leg tuck was ultimately replaced by the plank due to its disproportionate failure rate of 41% by female Soldiers. Steve Beynon, More Female Soldiers are Passing the ACFT, but Their Scores Still Trail Men’s, Military.com (May 17, 2021), https://www.military.com/daily-news/2021/05/17/more-female-soldiers-are-passing-acft-their-scores-still-trail-mens.html.
 Chaitra M. Hardison et. al., Independent Review of the Army Combat Fitness Test, Rand Corp. (2022) https://www.rand.org/pubs/research_reports/RRA1825-1.html.
 See APFT Standards, supra note 5.
 David Brown, ACFT FUBAR: Bad Data Driving a Bigger Wedge Between Active Duty and Reserves, ClearanceJobs (May 12, 2021), https://news.clearancejobs.com/2021/05/12/acft-fubar-bad-data-driving-a-bigger-wedge-between-active-duty-and-reserves/.
 Kirsten Gillibrand, Gillibrand, Blumenthal Press Armed Service Committees To Pause Implementation Of New Army Combat Fitness Test (ACFT); New Test Relies On Flawed Data And Could Undermine Military Readiness, Kirsten Gillibrand U.S. Senator for N.Y. (Oct. 21, 2020) https://www.gillibrand.senate.gov/news/press/release/gillibrand-blumenthal-press-armed-service-committees-to-pause-implementation-of-new-army-combat-fitness-test-acft-new-test-relies-on-flawed-data-and-could-undermine-military-readiness.
 See Id.
 Int’l Union, United Auto. v. Johnson Controls, 499 U.S. 187, 201 (1991).
 See id.
 Gillibrand, supra note 14.