On September 12, 2019, Cohen Milstein and co-counsel filed an amended complaint on behalf of a putative class of current and former female employees of the Federal Bureau of Investigation (FBI) who suffered systemic discrimination on the basis of sex when they were terminated from the FBI’s Basic Training program for new agents and intelligence analysts.

The putative class bring their claims of disparate treatment and disparate impact under the Title VII of the Civil Rights Act of 1964.

As of November 15, 2020, the motion to dismiss has been fully briefed. Parties are awaiting a ruling from the court.

Case Background

FBI new agent trainees begin their training at the FBI Academy with basic training, a twenty-week course that includes six to eight weeks of academic courses and twelve to fourteen weeks of training and testing on law enforcement skills.  The law enforcement skills portion of basic training consists of three “blocks”: Firearms Training, Physical Training/Defensive Tactics (one block), and Tactical Training.  During these blocks of training, new agent trainees receive training from their supervisory special agent instructors. 

In each of the three law enforcement skills training blocks, the new agent trainees are evaluated using a rubric assigned to the particular block.  If a supervisory special agent believes that a new agent trainee has failed to demonstrate sufficient practical skills as required in one of these units, the Supervisory Special Agent may issue a disciplinary citation, called a “suitability notation,” on the new agent trainee’s record.  In addition, suitability notations may be issued for deficiencies in the “suitability dimensions” (conscientiousness, cooperativeness, emotional maturity, initiative, integrity, and judgment). 

Plaintiffs routinely passed the primarily objective tests in the academic, physical fitness, and firearms blocks of training.  However, female new agent trainees received suitability notations based on the subjectively evaluated “suitability dimensions” more often than similar men.  Moreover, female new agent trainees received discriminatory suitability notations primarily from instructors in the Tactical Training Unit (a unit that staffs one of the instructional blocks for practical applications of skills), who judge women more harshly than men because they view tactical skills as innate, and unteachable.  Gender stereotypes and a culture of sexism within Basic Training have caused instructors to issue suitability notations in a discriminatory manner. For example, behavior has been adjudged “command presence” when exhibited by a male new agent trainee who explains his choice of action that an instructor criticized, but “failure to accept responsibility” or “lack of integrity” when a female new agent trainee provides a similar explanation.  Plaintiffs claim that female trainees received suitability notations more frequently and for more minor infractions than male trainees. 

FBI new analyst trainees begin their training at the FBI Academy with 12 weeks in Basic Training.  During the first approximately six to eight weeks, new analyst trainees and new agent trainees attend academic courses together.  When the new agent trainees move on to law enforcement skills training units, new analyst trainees continue with additional academic and intelligence curriculum.  Throughout Basic Training, they, like the new agent trainees, may receive suitability notations for perceived deficiencies in the FBI’s suitability dimensions.  Female new analyst trainees are issued suitability notations more frequently for perceived deficiencies in the suitability dimensions than similarly situated male new analyst trainees. 

Plaintiffs allege that because of their sex, female new agent and new analyst trainees were referred for Suitability Review or the Trainee Review Board, and discharged more frequently and for more minor infractions than similarly situated male trainees.  The discharge decision is made by one individual, the Assistant Director for Training, with input from a small number of additional individuals on the Trainee Review Board. 

Plaintiffs allege that the FBI’s system for discharge from Basic Training has had an adverse impact on the class of new agent trainees and new analyst trainees, that its policies and practices for issuing Suitability Notations and making other decisions culminating in discharge are excessively subjective, and that a small group of decision makers, similarly trained and working closely together, exercise discretion over issuing Suitability Notations; a smaller group of decision makers conducts Suitability Reviews or Training Review Boards; and a single decision maker, the Deputy Assistant Director of the Training Management Unit, decides on discharge.  

Bird, et al. v. Barr, Case No. 1:19-CV-1581 (KBJ), U.S. District Court for the District of Columbia