Compelling Analysis in Firefighter’s Adverse Impact Suit

A firefighter named Catherine Erdman wanted to work for the City of Madison, Wisconsin. During the 2014 recruitment process, she met the minimum qualifications and passed the application screening and written test, but failed the physical ability test (PAT). She passed some components of the PAT, including the equipment shuttle, hose drag, sledgehammer event, and search and rescue. Even though she did not receive a passing score on the ladder event, she avoided disqualification. However, she then also failed to accrue the minimum acceptable score of 16 repetitions in the pike pole event by only completing 12 repetitions. As a result, she was not hired.

The overall pass rate for women who took the test (4/28) was about 17 percent of the pass rate for men who took the test (395/471). Women’s failure rate (1/28) for the test was about 120 percent that of men’s failure rate (14/471). The disqualification rate for women who did not quit (20/25) was 748 percent higher than that of men who did not quit (49/458). Both parties agreed that these differences were statistically significant.

The parties could not agree on what to consider when determining if a disparate impact existed due to the PAT. The City of Madison wanted to concentrate solely on the pike pole event, whereas Erdman wished to reevaluate the entire PAT. Due to their disagreement, they took the case to court.

Ultimately, the court agreed with Erdman, finding that nothing within its prior analysis, reasoning, or holdings required her to isolate a component of the PAT in asserting a disparate impact claim. Neither parties asserted the existence of a case that required the analysis of a “particular employment practice” to be limited to a distinct component of a physical abilities test or of a similar multi-component test. Finally, other courts evaluating similar cases involving PATs appear to have uniformly considered the entire PAT as an indivisible hiring practice, thus casting doubt on the City’s argument that only the pike pole event should be the subject of scrutiny. The City argued that those cases were different because they involved multiple plaintiffs, and therefore warranted a broader impact analysis than this case. The court did not agree with the City, as it felt that this argument misunderstood the nature of a disparate impact claim; i.e., a disparate impact claim challenges a facially neutral practice that has a disproportionately adverse impact on applicants who share a protected characteristic.

The court’s view was that if multiple successive components of the PAT are collectively discriminatory, as Erdman claimed, she need not demonstrate a disparate impact as to the last component alone, simply because she succeeded in passing the other components of the test. As an explanation, the court added that if an employer uses a hiring practice that discriminatorily eliminates members of a protected class at each event level, the employer does not escape liability because of the smaller sample size at each successive event.

The court also looked at the test that the U.S. Court of Appeals for the Seventh Circuit directed its subordinate district courts to consider:

  • The degree to which the nature of the examination procedure approximates the job conditions;
  • Whether the test measures abstract or concrete qualities; and
  • Whether the test attempts to measure an abstract trait with a test that does not closely approximate the working situation.

Erdman also argued that an alternative employment practice with less adverse impact was available for selection of firefighters. This alternative is in the form of the Candidate Physical Abilities Test (“CPAT”), a test created by the International Association of Fire Chiefs and the International Association of Fire Fighters Joint Labor Management Task Force, which the City previously considered adopting but eventually rejected. The CPAT pass rate for women was 68 percent, higher than other physical abilities tests for women generally, and, of course, significantly higher than the PAT pass rate of 14 percent for female candidates in the City’s 2014 recruitment cycle. The CPAT also modified the ladder event to focus on the extension of the ladder, rather than the carrying component. It also modified the pike pole event to allow shorter candidates to stand at a closer yet still safe location.

Adverse impact cases are not as plentiful as other discrimination cases, and this one provides clear analysis and reasoning helpful to any public sector employer considering physical abilities tests. Measuring the pass and fail rates of different protected classes is important to determine if an adverse impact exists. Another important practice tip is to review other tests that would measure similar abilities along with the pass rates for different groups, such as men and women. If the comparative pass rates for all groups are similar, the likelihood of a successful suit is more remote.