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Female applicants for Chicago paramedic positions who were not hired due to failure to pass a scientifically prepared physical skills test proved a disparate impact discrimination claim and can retry their claim for intentional discrimination, the 7th U.S. Circuit Court of Appeals recently ruled.
In 2000, Chicago added a physical skills test for paramedics. The test was created for the city by Human Performance Systems Inc. (HPS). Deborah Gebhardt, the president of HPS, led the test-creation process.
In 2004, Stacy Ernst and four other women applied unsuccessfully to work as paramedics with the Chicago Fire Department. The women were experienced paramedics from public and private providers of emergency medical services. When they took the Chicago physical skills examination, however, they all failed.
After they were denied employment based on their exam results, Ernst and her colleagues filed suit. They challenged the skills test as being discriminatory; they argued that there was no evidence of Chicago paramedics ever lacking the physical ability to properly care for their patients. Instead, they argued, the test was imposed to keep women out.
Their suit had two parts: (1) a disparate treatment claim that asked a jury to find that Chicago had a discriminatory motive against women when it added a skills test; and (2) a disparate impact claim that asked the judge to find that the city used improper statistical methods to establish the skills test. The plaintiffs' disparate treatment claim went to a jury trial, while their disparate impact claim was tried in a separate bench trial.
The plaintiffs' burden on their disparate treatment claim was to prove illegal purpose: that Chicago had a discriminatory intent or motive for implementing the skills test. The magistrate judge drafted a jury instruction stating that the plaintiffs should prevail if they proved that Chicago "intentionally created or used" the skills test to "exclude or reduce" the women hired as paramedics.
The city claimed that the plaintiffs had to satisfy a but-for test: that Chicago would have hired the plaintiffs if, all other factors being equal, they were male. After a hearing on the matter, the district judge issued a written order that ruled for Chicago, finding that a but-for test was an appropriate defense because it was a discrimination claim by individuals and not a class action.
When the intentional discrimination case went to the jury, the jurors expressed confusion over the magistrate judge's instruction. The district court responded, "Reread all instructions. The sentence you are asking to clarify speaks for itself." Four minutes later, the jury returned a verdict for Chicago.
The disparate impact claim turned largely on whether Chicago's test was based on a statistically validated study of job-related skills. During the bench trial on disparate impact, the district court found it clear that the plaintiffs had established that there was a disparate impact on women. The burden then shifted to the city, which had to prove that its physical skills test was job-related and consistent with business necessity. In adopting Chicago's proposed conclusions of law, the district court concluded that Gebhardt's validation study satisfied Chicago's burden.
On appeal, the 7th Circuit found that the magistrate judge's version of the jury instruction more accurately reflected the focus on discriminatory motive (rather than causation) as detailed by Title VII of the Civil Rights Act of 1964. It thus set aside the jury's verdict and remanded for a retrial with the correct instruction.
On the district court's disparate impact decision, the 7th Circuit found that Gebhardt's study did not satisfy the law's technical standards for validity studies. She designed three work exercises with input from the Chicago Fire Department: a lift and carry, a stair-chair push, and a stretcher lift. These work exercises were intended to reflect skills that Chicago paramedics use on the job. However, the use of stair chairs in Chicago was limited, and both the stair-chair push and the stretcher lift were more difficult than the tasks paramedics typically performed on the job. In Gebhardt's skills test, women performed far less well than men. On one test, for example, the average female score was 66.4 percent of the average male score. This discrepancy invalidated the physical skills tests.
As a result, the disparate impact trial verdict was reversed and judgment was entered in the plaintiffs' favor.
Ernst v. City of Chicago, 7th Cir., Nos. 14-3783 & 15-2030 (Sept. 19, 2016).
Professional Pointer: The discrimination laws do not merely prohibit pre-employment tests that intentionally discriminate against certain applicants. Employers also face liability for tests that have the unintended result of excluding applicants on the basis of gender, race or other protected characteristics when the test is not sufficiently job-related and consistent with business necessity.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
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