Women Claim Cleveland Fire Department’s Hiring Process is Discriminatory

Two women who failed the Cleveland Fire Department’s physical abilities test in 2017, have filed suit alleging gender discrimination. Yolanda McKay and Christine Scott filed suit in US District Court for the Northern District of Ohio alleging a violation of Title VII of the Civil Rights Act of 1964.

While McKay and Scott claim that the test itself had a disparate impact on women, they also claim that inconsistencies in the administration of the test coupled with ill-fitting gear intended for men made the test unnecessarily difficult for women. Cleveland replaced the test in 2021. Quoting from the complaint:

  • It is a well- known fact that prior to 2019, Defendants had not hired a single female firefighter in 30 years.
  • The consequences of Defendants’ discriminatory conduct are plain—although there were well over 778 Cleveland firefighters as of year-end 2022, just 14 of them are women.
  • One reason for this disparity is Defendants’ use, until at least 2020, of a discriminatory physical agility test in the firefighter hiring process.
  • The PAT required candidates to complete five separate tasks on a timed course.
  • Until at least 2020, in order to obtain a firefighter position with Defendants, a candidate was required to, among other things, take and pass the PAT.
  • Upon information and belief, the most recent iteration of the PAT used by Defendants had been in place since approximately 1995.
  • The test required completing the following five tasks over a timed course while wearing ankle weights, a helmet and an oxygen tank: (1) stair climb while carrying a hose; (2) hose hoist; (3) forcible entry; (4) hose advance; and (5) victim rescue.
  • The test was administered by Defendants through Cuyahoga Community College (Tri-C).
  • After receiving passing scores on the City of Cleveland’s written firefighter exam, both Ms. McKay and Ms. Scott took the PAT on or around July 16, 2017.
  • Before taking the PAT, Plaintiffs attended voluntary practice sessions hosted by Defendants at the Division of Fire’s training facility.
  • During the practice sessions, Plaintiffs were given faulty and broken equipment with which to practice.
  • When Plaintiffs later took the PAT at Tri-C, they discovered that the course itself, the equipment provided, and the policies concerning both gear and timing varied as between the practice sessions and the actual PAT.
  • For instance:
    • The “dummy” used for the victim rescue task was shaped and weighted differently than the dummy on which they had practiced.
    • The layout of the course was different, and the distances between the tasks during testing was not consistent with distances between tasks during practice sessions.
    • During practice, Ms. Scott was permitted to use “carpenter gloves” which have the fingertips cut off.
    • She was not permitted to use these gloves during the actual PAT. As noted below, the only gloves provided to test takers were sized for men and were too large for Ms. Scott to use without them slipping off.
    • Ms. Scott was told that her carpenter gloves could not be used moments before she was to take her test.
    • Fortunately, another female candidate gave her a pair of gloves to use.
    • Ms. McKay used the gloves that were provided to her by the test proctors and found them to be too large for her.
    • The time allotted to candidates during the practice test varied from the time given on the actual test, and information provided to candidates about the time limits for both the practice test and the actual PAT was inconsistent and unclear.
  • Plaintiffs also discovered that the PAT was administered unfairly and inconsistently. For example:
    • The gear and other equipment provided during the PAT, such as helmets, gloves, and oxygen tanks, were too large to properly fit Plaintiffs or other female candidates.
    • This made it more difficult for Plaintiffs to complete the test, as the helmets often slipped and had to be repositioned.
    • A cut-off time of 4 minutes and 30 seconds was imposed for the PAT, which differed from the cut-off time during the practice sessions, and the cut-off time was not included in the notice that they received before taking the PAT.
    • Because the form did not include the cut-off time, Ms. Scott called to inquire what the cut-off time would be and was informed she could not be given that information.
    • Each candidate’s journey through the PAT course was timed by a single male test monitor using a single stopwatch that only the test monitor himself could see or control. No buzzer was used to signify the start or end of the test.
    • The proctor simply called “time’s up” when he determined the time for the test had elapsed.
    • Neither the Plaintiffs, nor anyone else in attendance, were able to see their time as they completed the PAT, nor was there any confirmation of the timer’s accuracy.
    • The test monitor did not advise Plaintiffs of the time that they had remaining as they took the PAT, although they were both given this information throughout the PAT practice sessions and expected to be given the same information during testing.
    • Both Plaintiffs failed the PAT. As they were completing the final task, victim rescue, the test monitor simply informed Plaintiffs that their time was up.
    • They were not permitted to finish the course and were not informed of their times or scores.
  • Both Ms. McKay and Ms. Scott were mere steps away from finishing when time was called.
  • Throughout the relevant timeframe, the PAT had a disparate impact on women with respect to both its content and the manner in which it is administered.
  • Women failed the PAT at a statistically significantly higher rate than men.
  • Upon information and belief, the PAT was not job related for the firefighter position and not justified by business necessity.
  • Despite the known discriminatory effects of the test, Defendants continued to use it until they adopted a different test, the Firefighter Mile, in 2020.
  • Upon information and belief, prior to 2019, Defendants had not hired a single female firefighter in 30 years.
  • And although there were well over 778 Cleveland firefighters as of year-end 2022, just 14 of them are women.
  • In October 2021, Plaintiff McKay successfully completed the Firefighter Mile physical exam that Defendants’ instituted to replace the PAT.
  • In August 2022, Ms. McKay was hired by the City of Cleveland as a firefighter.

Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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