Physical Agility Test Did Not Discriminate Against Women Firefighter Applicants

Of the 28 women that qualified for the City of Madison Wisconsin Fire Department’s (the “City”) physical agility test (“test”) only four successfully completed the test. In contrast, men passed the test at a much higher rate, 395 out of 471. The Seventh Circuit Court of Appeals agreed with female firefighter applicant Catherine Erdman’s (“Erdman”) that the City’s test had a disparate (adverse) impact on women. However, the Seventh Circuit ultimately agreed with the lower court’s decision in favor of the City because the test, while having a disparate impact on women, served a legitimate non-discriminatory purpose and the City was not obligated to use an alternative test which was not locally tested.

Erdman has been a firefighter with the City of Janesville, Wisconsin since 2007. She applied for a firefighter position with the City of Madison on several occasions, including in 2014, the subject of this lawsuit. Ederman passed the written portion of the test. Of the seven-events comprising the City’s agility test: equipment shuttle, hose drag, sledgehammer event, search, rescue, ladder event and pike pole test. Erdman obtained sufficient scores in six events but did not obtain a minimally acceptable score in the pike pole event, which requires an applicant to use a pole with a hook on it to simulate breaching a ceiling from below to look for hidden flames and then pulling the ceiling material down 16 times within an allotted time period. Erdman completed 12 pull downs of ceiling material.

Erdman’s lawsuit asserts that the City, instead of using the agility test it developed, should have used the Candidate Physical Agilities test licensed by the International Association of Fire Fighters (“IAFF”). The IAFF test is used by many fire departments across the nation and has less of a disparate impact on women applicants. The Seventh Circuit stated that an employer, like the City, can defend a disparate impact claim by showing the practice in question (the agility test) is job-related and consistent with business necessity. If an employer establishes these factors, the burden shifts to the employee to prove that the alternative test proposed will result in less of a disparate impact and still serve the employer’s legitimate needs.

Erdman, according to both courts, failed to put forth sufficient evidence that the IAFF test would serve the City’s legitimate needs. Simply asserting that the IAFF has less of a disparate impact on women and then assuming that it would meet the City’s legitimate needs, without any attempt to validate the test locally is insufficient to rebut the City’s position. The Court noted that the City set forth specific reasons why parts of its test were necessary elements to establish an applicant’s qualifications to be a City of Madison firefighter. Additionally, the Court’s decision stated that the City also set forth “evidence of numerous burdens associated with adopting [the IAFF test] as an alternative test.”

This case is for employers facing workplace disparate impact claims. The decision serves as a reminder that even when a test or standard disparately impacts a protected category of employees or applicants, the employer has an opportunity to successfully defend the test by showing that it is job-related and consistent with the needs of its business.

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