After Failing City’s Physical Examination, Applicant’s Title VII Disparate Impact Appeal Dismissed by Seventh Circuit

The hiring process for many public employers has changed in recent years with the reduction in applicants available.  However, back in the post-recession era, employers had giant lists of candidates from which they could choose and used competitive examinations for purposes of picking the most qualified candidates.

In 2014, the city of Madison put on an open examination for its firefighter position in which 1,887 applicants participated.  Of the applicants, 1,723 were men and 146 were women.  Of those that applied, 499 appeared to take the physical ability test portion of the examination, including 28 women.  Of those women who attempted the physical ability test, only four passed.  The plaintiff in Erdman v. City of Madison applied and tested for the position of firefighter in 2006, 2008, 2010, 2012, 2014, and 2018.  2014 was the only year she passed the written test and became eligible for the physical portion of the examination.  She failed the physical portion of the examination that year and sued.

In her suit, Erdman contended that a different physical abilities test would have had less disparate impact on female applicants and would have served the City’s purpose in testing physical abilities to work as firefighters.  The district court agreed that the test created a disparate impact, but also found that an alternative test would not have adequately served the legitimate needs of the department.  The court found the test would have resulted in significant cost and overtime expense and that the test utilized was tailored to the department’s equipment and safety procedures.  At trial, the district court found the plaintiff had not demonstrated that the alternative test would serve the department’s legitimate needs as well as the City’s test, and ruled in favor of the City.  Erdman appealed.

Under Title VII, the burden shifting analysis for disparate impact claims is different from disparate treatment.  After the plaintiff shows that a particular hiring practice has an adverse impact on applicants of a protected characteristic, the defendant can defend its practice by either showing the practice had no disparate impact or showing that it was job-related for the position.  The plaintiff must then prove that the employer refused to adopt an alternative practice that would result in a less disparate impact yet still serve the employer’s legitimate needs.

In addressing the question of whether a better alternative existed, the Seventh Circuit Court of Appeals found that the district court credited testimony regarding the time spent by the City in developing the test.  It noted that elements of the test were specifically designed to replicate the tasks Madison firefighters would be expected to execute with available equipment in a safe manner.  The court also found that success on the test led to greater likelihood of academy graduation and female employee retention.  As such, the lower court’s decision was affirmed.

A lot went into this case from the time it began to the time it was heard on appeal.  The good news is that the law that was in place at the time of the examination remained the same, so employers (at least those in the Seventh Circuit) can rely on this determination when considering making changes to their own tests.  However, it is always important for employers to evaluate and re-evaluate the necessity and applicability of tests utilized to find the best candidates for positions.  As most employers are finding, the greater the candidate pool, the higher likelihood of finding someone deserving of the job.  If you, or your organization need assistance in responding to employee concerns about examinations, contact Wiley Reber Law, for legal advice that works.