Madison Physical Abilities Test Upheld as Non-Discriminatory Against Women

The US District Court for the Western District of Wisconsin has ruled that the City of Madison did not unlawfully discriminate against women applicants to its fire department, despite the fact only 14.29% passed a physical abilities test that 83.86% of men passed. The ruling came in a suit brought Catherine Erdman in 2016 challenging the 2014 hiring process.

Erdman argued that the city’s physical abilities test (PAT) was discriminatory based upon the pass-fail rate for women compared to men, particularly in light of availability of the Candidate Physical Abilities Test (CPAT) that had been developed jointly by the IAFC and IAFF. She pointed to the fact that the CPAT had a 48% pass rate for women in one study done in Austin, Texas.

Madison countered that it had an excellent hiring record of women firefighters, that the CPAT had not been validated for use in Madison, that its pass rate outside of the Austin study was only marginally higher than its own PAT, that while the CPAT might have led to more women being admitted to the academy it may in the end result in more women washing out of the academy than the PAT, and that its own PAT was an excellent predictor of the ability to pass the academy and succeed on the job.

In ruling in favor of the city, US District Court Judge William M. Conley began by explaining the burden-shifting framework applied in gender discrimination cases like this. That burden-shifting is as follows: first the plaintiff has the burden of proving that the Fire Department’s PAT has an adverse impact on female applicants; if the plaintiff is successful, the burden shifts to the city to prove that the PAT is job-related and consistent with business necessity; if the city is successful, the burden then shifts back to the plaintiff to prove that an alternative physical abilities test exists that will serve the Fire Department’s legitimate needs without burdening female applicants. Quoting from the opinion (internal citations and quotation marks removed for clarity of reading):

  • Title VII prohibits hiring practices that have a disproportionately adverse impact, also referred to as a “disparate impact,” on employees with protected characteristics, such as sex, even if there is no intent to discriminate.
  • To prove her claim here, therefore, plaintiff must show that a particular hiring practice had a disparate impact on female applicants.
  • As part of her prima facie case, the plaintiff must also show causation, typically by offering statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.
  • In turn, an employer can defend against a plaintiff’s prima facie case by: refuting proof that the challenged practice is a cause of the disparate impact, or by showing that the practice is job-related for the position and consistent with business necessity.
  • Although employers have the burden of showing the relationship between a requirement and the employment in question, employers are not required, even when defending standardized or objective tests, to introduce formal ‘validation studies’ showing that particular criteria predict actual on-the-job performance.
  • Rather, the burden then shifts back to the applicant to prove the employer refuses to adopt an alternative hiring practice that results in a less disparate impact while still serving the employer’s legitimate needs.
  • Based on the statistical analysis of the 2014 PAT results described at summary judgment, and summarized above, as supported by expert testimony proffered by plaintiff, the court found that the differences in the performance of male and female applicants during the PAT were highly significant statistically and that a reasonable factfinder could conclude that the PAT produced a disparate impact on female applicants, sufficient to satisfy her burden on the first element of a disparate impact claim.
  • The court sees no reason to revisit this issue as a matter of law, and again concludes that the appropriate unit of analysis for plaintiff’s claim is the PAT as a whole.
  • Moreover, the court concludes based on the undisputed record that plaintiff has established by a preponderance of the evidence that the 2014 PAT had an adverse impact on female applicants.
  • Given that plaintiff has satisfied her burden of demonstrating that the PAT as a whole produced a disparate impact on women, the burden shifts to defendant to show that the requirements of the PAT are job-related for the position and consistent with business necessity.
  • A test is ‘job-related’ if it measures traits that are significantly related to the applicant’s ability to perform the job.
  • Employers are not required to support their physical-skills tests with formal validations studies, which show that particular criteria predict actual on-the-job performance.
  • As is in this case, however, when an employer relies on a validity study, federal regulations establish technical standards for these studies.
  • As detailed above, defendant’s experts Rick Jacobs, the developer of the original PAT in 1997, and Carl Swander, who updated and validated the PAT in 2013, both provided extensive testimony about: (1) the job studies conducted to select physical tasks as a proxy for on-the-job requirements, which were conducted with the assistance of senior members of the Department; and (2) the process for setting cut and disqualification scores, utilizing a statistical method and checking it against the subjective assessment of senior members of the Department.
  • Members of the Department also testified to their involvement in developing and updating the PAT leading up to the challenged 2014 PAT.
  • Given this record, the court concludes that the 2014 PAT was valid under the Uniform Guidelines.
  • This leads to the final issue addressed at trial: whether plaintiff proved by a preponderance of the evidence that the CPAT meets Madison Fire Department’s legitimate needs.
  • In answering this question, both parties focus on certain, distinct elements of the PAT compared to the CPAT.
  • At the outset, the court recognizes that this analysis proves an ill fit, since plaintiff is challenging the PAT as a whole, which is necessary to meet her prima facia burden of showing a disparate impact.
  • Moreover, if plaintiff were pursuing a claim based on a discrete element of the PAT, the available statistics are not nearly so clear cut to support her claim of disparate impact, as described above.
  • Nevertheless, plaintiff seeks to latch onto discrete elements of the PAT, as compared to the CPAT, to argue that the latter meets the Madison Fire Department’s legitimate needs.
  • Even adopting plaintiff’s approach, the court must consider the Department’s specific arguments in support of the two elements that plaintiff asserts are unnecessary as compared to CPAT’s alternative elements — the ladder and pike pole.
  • In particular, the Department points out that those elements of the test were specifically designed to replicate the tasks Madison firefighters would be expected to execute in light of the equipment available to the Department at that time and of concerns about safety.
  • Evidence of the time spent by the Department’s personnel and their expert consultants in developing these two elements of the 2014 PAT was overwhelming.
  • In crediting this testimony, however, the court is skeptical of the Department’s argument that its role as a forerunner in developing this type of physical abilities test — one that is premised on job tasks, rather than just general fitness requirements — as well as its relatively strong record of hiring women more generally when compared to other fire departments around the country, should somehow excuse it from considering an alternative test.
  • On the other hand, plaintiff simply points to the CPAT, assuming that it would fit Madison’s needs without attempting to validate the test locally.
  • Regardless, defendant proffered credible evidence of numerous burdens associated with adopting the CPAT as an alternative test, including: (1) the need to perform a transferability study; (2) the PAT having been a good predictor of outcome historically, as defined by a high passage rate out of the academy; (3) the Department’s comparatively high percentage of female firefighters, leading to a possible inference that the CPAT may have a favorable disparate impact on women but results in the washing out of ultimately unsuccessful applicants after the additional expenditure of time and money at the academy phase; and (4) certain elements of the PAT were designed specifically for Madison, in light of characteristics of the city, the Department’s equipment or other considerations, including safety.
  • Given plaintiff bears the burden to prove the CPAT would serve the Madison Fire Department’s legitimate needs, when coupled with the Seventh Circuit’s admonition that courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it, the court concludes that plaintiff has not demonstrated by a preponderance of the evidence that the CPAT meets the Department’s legitimate needs as an alternative to the 2014 PAT.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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