Madison’s Physical Abilities Test Upheld by Seventh Circuit

The Seventh Circuit has upheld a physical abilities test used by the Madison Fire Department despite the fact it creates a disparate impact on female candidates. The suit was brought by Catherine Erdman, a Janesville firefighter who failed the Madison physical abilities test in 2014.

Erdman claimed the test violates Title VII of the Civil Rights Act of 1964 because it has a disparate impact on women. She pointed to her successful career in Janesville, which included being firefighter of the year in 2014.

The trial court agreed the test had a disparate impact, but concluded it did not violate Title VII because it was job-related, consistent with business necessity, and that Erdman could not show that a proposed alternative test (the CPAT) would better serve the city’s needs. She appealed that decision to the Seventh Circuit.

Quoting from the Seventh Circuit decision:

  • Erdman contends that a different physical abilities test would have had less disparate impact on female applicants but would have sufficiently served the city’s purpose in testing applicants’ physical abilities to work as firefighters.
  • As her alternative, Erdman proposes the Candidate Physical Abilities Test.
  • It is licensed by the International Association of Fire Fighters and used as a screening tool for many fire departments across the nation.
  • The district court heard detailed evidence on the similarities and differences between the Madison test and the IAFF test.
  • Since at least 2013, the Madison fire department has been aware of the IAFF test, considered it, and decided to continue using its own test.
  • The district court found that the IAFF test has less of a disparate impact on women than the Madison test.
  • On appeal, the city does not challenge that finding….
  • But the district court agreed with the city that the IAFF test would not adequately serve the legitimate needs of Madison’s fire department.
  • For instance, the city argued that if the department had offered the IAFF test’s required training to the nearly 500 applicants who performed the Madison test in 2014, it would have resulted in significant cost and overtime expense.
  • The district court also agreed with the city that, unlike the IAFF test, “certain elements of the [Madison test] were designed specifically for Madison, in light of characteristics of the city, the Department’s equipment or other considerations, including safety.”
  • Title VII prohibits hiring practices that have a disproportionate adverse impact on job applicants with protected characteristics such as sex or race, even in the absence of discriminatory intent.
  • To prove disparate impact, a plaintiff must show that a particular hiring practice had an adverse impact on applicants with a protected characteristic, such as sex.
  • If a job applicant makes a prima facie showing of disparate impact, an employer can defend by showing that: (1) the challenged practice does not cause the disparate impact or (2) the practice is job-related for the position and consistent with business necessity.
  • If the employer can show that the practice is job-related for the position and consistent with business necessity, the burden shifts back to the applicant to prove that the employer refuses to adopt an alternative hiring practice that would result in less disparate impact and still serve the employer’s legitimate needs.
  • The city concedes on appeal that the Madison test as a whole shows a statistically significant disparate impact on female applicants.
  • In 2014, the pass rate for women who appeared to take the test was 14% (4 out of 28), while the pass rate for men who appeared to take the test was 84% (395/471).
  • Erdman concedes that the city carried its second-step burden to prove that the Madison test is “job-related for the position and consistent with business necessity.”
  • On appeal, she challenges only the district court’s adverse third-step finding that the IAFF test is not an “available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.”
  • To serve an employer’s “legitimate needs,” an alternative hiring practice need not be exactly as effective as the allegedly discriminatory practice.
  • Under this standard, an alternative test is “substantially equally valid” if it “would lead to a workforce [that is] substantially equally qualified.”
  • The district court’s factual findings on the local validity of the IAFF test for the Madison fire department were not clearly erroneous.
  • As the district court noted, “plaintiff bears the burden to prove the [IAFF test] would serve the Madison Fire Department’s legitimate needs.”
  • The district court found that Erdman did not put forth sufficient affirmative evidence on this point.
  • She “simply points to the [IAFF test], assuming that it would fit Madison’s needs without attempting to validate the test locally.”
  • Validating the test locally would require at least some affirmative evidence from Erdman showing that IAFF-test candidates with the lowest passing scores would be “roughly as qualified” as those who obtain the lowest passing score on the Madison test.
  • The evidence also permits an inference that the Madison test does a better job than the IAFF test at screening out applicants who are likely to wash out at later stages in the training process.
  • Other fire departments have lower rates for hiring and retaining female firefighters (presumably using the IAFF test or others).
  • Madison has a higher-than-average rate of hiring and retaining female firefighters.
  • Those differences tend to support the district court’s finding that Erdman failed to meet her burden at step three.
  • After all, the ultimate concern here is not with how far women progress in the hiring process before being disqualified but with whether they can ultimately be hired and hold the jobs on a fair and nondiscriminatory basis.
  • Evidence showed that “many, many” departments around the country use the IAFF test, which was developed in conjunction with ten leading fire departments in large cities across North America.
  • Yet the city also offered evidence that the Madison fire department maintained a substantially higher rate of female firefighters than the national average; 14% in Madison in 2014 as compared to a national average of about 4%.
  • The district court was careful to note that a “relatively strong record of hiring women more generally when compared to other fire departments around the country” did not excuse the Madison fire department from considering an alternative test.
  • But even with this caveat, the district court was still persuaded that the most plausible inference was that Madison’s high rate of female firefighters was traceable at least in part to the city’s use of its physical ability test.
  • We are not as confident as the district court that Madison’s lesser training wash-out rate and higher retention rate for female candidates prove the Madison test is a better predictor of women’s ability to train for and do the job successfully.
  • But the district court correctly described its logic on this point as one “possible inference” from the record.
  • Here, the district court’s analysis of these issues was thoughtful and reasonable.
  • The judgment of the district court is AFFIRMED.

Here is a copy of the decision:

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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