Catherine Erdman worked as a firefighter in Janesville, Wisconsin since 2007. She applied for openings with the Madison Fire Department each year since 2006. Applicants were required to first pass a written test, which would qualify them for a physical test. Erdman failed the written test in 2006, 2008, 2010, 2012, and 2018. In 2014, the year at issue in this case, she passed the written test and proceeded to the physical test.
The City’s physical test required applicants to complete seven events: equipment shuttle, hose drag, sledge-hammer, search, rescue, ladder, and pike pole. Each event was scored and timed individually, and the City judged applicants based on whether they achieved the minimum acceptable score (MAS) or the higher cut score. To pass, applicants had to achieve the MAS on all seven events and had to achieve the cut score on at least five events. Heading into Erdman’s final event in her 2014 physical test, she achieved the cut score in five of them and the MAS in the sixth. She would pass the physical test if she achieved the MAS in the final pike pole event. Unfortunately, she was unable to achieve the MAS, and was disqualified from City employment as a firefighter. That year, 471 men and 28 women took the physical test, and 395 men and four women passed. All four women who passed were hired. In 2014, 14% of City firefighters were women, which fell to 10.8% in 2018. Both figures are well above the national average of about 4% female firefighters.
Erdman sued the City for sex discrimination under Title VII, arguing that the City’s fitness test disparately impacted women. As required to prove her case, she proposed that an alternative physical test – the IAFF Candidate Physical Abilities Test – could ensure that the City hired qualified firefighters without disadvantaging women. The IAFF test is substantially like the City’s test with at least two critical differences: (1) it allows candidates to attempt the test three times before disqualification; and (2) it allows candidates to plant their feet while performing the pike pole event, whereas the City’s test required candidates to change positions between pushing and pulling the pike pole. After a bench trial, the Court found that although Erdman established a prima facie case of disparate treatment, she failed to prove that the IAFF test would serve the City’s legitimate needs as well as the existing test. Erdman appealed.
The Seventh Circuit Court of Appeals affirmed, agreeing that Erdman failed to prove that the IAFF test would be just as effective as the City’s existing test in vetting potential firefighters. The Court noted that “to serve an employer’s ‘legitimate needs,’ an alternative hiring practice need not be exactly as effective as the allegedly discriminatory practice. The issue is whether the alternative practice is ‘substantially equally valid.’” The Court noted that Erdman’s evidence on this point was paltry and insufficient and that she offered the testimony of an expert witness who was unable to convincingly explain why the candidates with the lowest passing scores on both tests would be “roughly as qualified” as one another. Without such evidence, the Court could not reverse the conclusion of the lower court that Erdman failed to meet her burden.
Erdman also failed to rebut the City’s arguments that the IAFF test was an inferior test for its purposes. The City explained that it had more stringent requirements in the ladder and pike pole events than the IAFF test due to the needs of its fire department. The City’s ladder event required climbing a higher ladder than the IAFF test because the higher ladder was part of the City’s fire equipment. The City required applicants to reposition themselves 18 inches away from the pike pole’s point of contact with the ceiling before “pulling” the pole, because doing so would be the safest practice during an actual fire. As Erdman failed to rebut these justifications as mere pretext, the Court was properly persuaded by them.
The City offered substantial statistical evidence in support of its test. The fire chief testified at trial that very few firefighters are terminated or quit due to physical inability to perform the job, indicating that the City’s test is a good indicator of physical ability. The City also employed substantially more female firefighters than other departments across the country, undercutting Erdman’s argument that the IAFF test would effectively vet candidates while diminishing disparate impact for women.
Erdman v. City of Madison, No. 22-2433, 2024 WL 224982 (7th Cir.).