A federal appeals panel in Chicago has ruled Wisconsin’s capital city didn’t violate antidiscrimination laws when it made female firefighter applicants pass a physical screening that, according to a lawsuit, was more demanding and rigorous than similar tests used by other fire departments.
Catherine Erdman sued the city of Madison, saying her elimination from a firefighter recruitment class in 2014 represented a disparate impact violation of Title VII of the Civil Rights Act by allegedly making it harder for women to secure firefighter posts.
Following a bench trial, U.S. District Judge William Conley, of the Western District of Wisconsin, found Erdman showed the city’s fitness test did have a disparate impact on women, but also found it was job-related and met a legitimate government purpose. The judge further found she failed to show how her proposed used of the tests other communities employ would equally serve those needs.
Seventh Circuit Judge Ilana Rovner wrote the opinion on Erdman’s appeal, filed Jan. 22; Judges David Hamilton and Michael Brennan concurred.
Court records show Madison employs about 365 firefighters. Erdman, who started as a volunteer firefighter in Poynette and began working as a firefighter in Janesville in 2007, was among 1,887 people who applied for a Madison job in 2014, the same year she was named Janesville Firefighter of the Year. Of those whose application clearly identified a gender, 1,723 were men and 146 were women. From that group, 471 men and 28 women took the physical test, with only 395 men and four women passing.
Those four women got the job, the panel noted, and in 2014 about 14% of the city’s firefighters were women. Although that had dropped to 10.8% in 2018, “both numbers were well above the national average of about 4% female firefighters,” Rovner wrote.
According to court records, Erdman failed Madison’s written test in 2006, 2008, 2010, 2012 and 2018. During the 2014 physical test, she completed only 12 of a minimum 16 repetitions on “final event, the pike pole test,” Rovner wrote. “In this event, the applicant must use a pole with a hook on it first to simulate breaching a ceiling from below to look for hidden flames, and then pulling down ceiling material.”
Erdman argued Madison should use the Candidate Physical Abilities Test licensed by the International Association of Firefighters for a variety of reasons. In arguing against Erdman’s appeal, the city didn’t dispute Judge Conley’s finding the IAFF test has a less disparate attempt on women than its own. What the city did argue was that using IAFF protocols would’ve generated significant cost and overtime expenses and that its own test had elements designed specifically for the city’s needs.
Although the panel noted Madison framed the issued around Judge Conley’s denial of summary judgment, therefore sidestepping the trial findings, it said there was legal room to address the city’s position as it relates to an employment practice, notably because Erdman was ably to fully litigate the matter in the district court. as well as make a persuasive argument in an appeal brief. The panel further explained why Judge Conley was correct to evaluate the seven-part test as a whole, one “particular employment practice,” and why that led to agreeing with Erdman regarding disparate impact.
However, Erdman conceded Madison was able to prove its test is “job-related for the position and consistent with business necessity,” so her appeal challenged only whether the IAFF test is a suitable alternative. Without challenging that test’s validity or the way it impacts applicant subgroups, Madison solely argued its own test serves unique, legitimate municipal needs.
In addition to the pike pole, Madison argued its ladder test necessarily differs from IAFF, offering evidence before Judge Conley 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.”
The panel also noted other departments have lower hiring and retention rates for female firefighters, which point toward the city’s argument its specific test works for its demands.
“After all,” Rovner wrote, “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 non-discriminatory basis.”
Although Rovner further said the appeals panel wasn’t as confident in that evidence as Judge Conley, noting the possibility of other factors contributing to those hiring and retention rates, it noted Conley said the data was ‘one ‘possible inference’ from the record” and said Erdman failed to mount a convincing argument the IAFF test was the same or better for Madison’s needs.
Madison officials did not reply to requests from The Cook County Record for comment on the decision.