March/April 2024 Issue

Also in this issue: Court of Appeals Holds that DNR's Regulation of "Emerging Contaminants" Like PFAS Under the Spills Law are Invalid Unpromulgated Rules     |     New Option for Obtaining Money for Private Lead Service Line Replacement Funding

Seventh Circuit Rules that the City of Madison’s Physical Abilities Test did not Violate Title VII

Storm B. Larson | 04.03.24

Municipal employers should be aware of a recent ruling which is favorable to municipalities that use physical abilities tests to screen applicants for first responder positions. The case arose under Title VII, which is a federal statute that forbids public and private employers from enacting policies and practices that have the effect of discriminating more against one protected group than another. These are called disparate impact claims, and they can be a cause for concern for unwary employers because they do not require an employer to have intended to discriminate. Disparate impact claims focus on the effect of a practice rather than its purpose.

Title VII disparate impact claims are also unique because of the method of proof that is used. These claims generally progress in a three-stage burden shifting framework. At stage one, a plaintiff has the initial burden of demonstrating that a policy or practice has a disparate impact on a protected group. This is often done through statistical analysis. At stage two, the burden then shifts to the employer to demonstrate that the challenged policy/​practice is job-related and consistent with business necessity. If the employer meets this second-stage burden, then the burden shifts back to the plaintiff to show that there is an alternative practice that is less discriminatory and can meet the employer’s legitimate needs.

Recently, the Seventh Circuit affirmed a district court’s ruling that the physical abilities test used by the City of Madison’s fire department did not violate Title VII. In Erdman v. City of Madison, 91 F.4th 465 (7th Cir. 2024), a female firefighter applicant challenged the City’s test on the grounds that it disproportionately screened out female candidates as opposed to male candidates. The plaintiff was screened out during the physical abilities test for failing to meet the required scores.

On review of the evidence, the district court concluded that the plaintiff had met her stage one burden and found that the test had a disparate impact on women. However, the court also concluded that despite this disparate impact, the test was job-related and consistent with business necessity and so the City met its burden at stage two. Thus, the case came down to stage three and whether the plaintiff could show that there was an alternative test that the City of Madison could have used that was less discriminatory and that met its needs. The district court and Seventh Circuit both ruled in favor of the City on this stage three issue.

At stage three, the plaintiff had attempted to argue that an alternative test called the Candidate Physical Abilities Test (“CPAT”) would have been just as good as the City’s test and would have met its needs. However, the City countered by pointing to substantial evidence that the City’s test had been tailored to the City of Madison’s needs and was developed to simulate the tasks that a firefighter in Madison would specifically be expected to perform, unlike the CPAT. As a result, both the district court and Seventh Circuit were persuaded that the City’s own test was lawful. It also bears noting that in its opinion, the Seventh Circuit acknowledged that even using the City’s own test, the City of Madison has a higher-than-average rate of maintaining female firefighters — 10 – 14% — as compared to the national average of 4%.

Disparate impact claims are challenging and complicated. It is therefore important for employers to be wary of policies and practices which may have the effect of discriminating even if their purpose is neutral and legitimate on their faces. We encourage municipal employers to reach out to a member of the Municipal Law Practice Group with questions.