Firefighter Physical Test Not Unlawful Gender Discrimination

Takeaway: While a pre-employment physical abilities test may have a disparate impact on women, it may nevertheless be valid if a plaintiff cannot show an alternative test would meet the employer’s legitimate hiring needs.

A female firefighter who applied for the fire department of the City of Madison, Wis., could not establish that its hiring process discriminated against women as a matter of law, the 7th U.S. Circuit Court of Appeals ruled.

The Madison fire department employs approximately 365 firefighters. The department uses a formal recruitment process to hire new firefighters, which consisted of five stages: 1) an application screening for minimum qualifications; 2) a written test; 3) a physical abilities test; 4) an oral examination before a panel of examiners; and 5) an interview with the chief.

The plaintiff had been a firefighter with the City of Janesville, Wis., since 2007 and applied for the Madison fire department in 2014 but did not pass its physical abilities test. She filed a lawsuit alleging that the test caused the city to discriminate against her based on sex.

The Madison physical abilities test consisted of seven events: 1) equipment shuttle; 2) ladder event; 3) hose drag; 4) sledgehammer event; 5) search; 6) rescue; and 7) pike pole. The seven events had to be completed in order, but they were timed and scored separately. The plaintiff performed the physical abilities test and received points for five of the seven events: equipment shuttle, hose drag, sledgehammer event, search and rescue. She did not meet the cut score for the ladder event but received the minimum acceptable score required to avoid disqualification.

In the pike pole test, the applicant must use a pole with a hook on it to simulate breaching a ceiling from below to look for hidden flames and then pull down ceiling material. The minimum acceptable score for that event was 16 repetitions in the time allowed. The plaintiff completed only 12 repetitions. That eliminated her from the 2014 hiring process. If she had completed 16 repetitions, she would have passed the test and moved on to the next stage of the hiring process.

The plaintiff contended that other, different physical abilities tests would have had less impact on female applicants but would sufficiently serve the purpose of testing applicants’ physical abilities. She proposed the Candidate Physical Abilities Test of the International Association of Firefighters (IAFF), which is used as a screening tool for many fire departments nationwide.

The differences between the tests included the method of timing tests. The IAFF test imposed a time limit on completing all events, but not on individual events. The Madison test timed each event separately. The IAFF test also allowed applicants several chances to pass the test. A candidate could take the test up to three times and only needed to pass once. In the Madison recruiting process, each applicant only had one chance to pass the physical abilities test.

The tests also differed with respect to the pike pole event. The IAFF test allowed an applicant to stand directly under the point where she hooked her pole in the push and pull portions of the event. In the Madison test, applicants could stand directly under the hook point to push up but had to move 18 inches back when completing the pull portion of the test.

The Madison fire department had been aware of the IAFF test since at least 2013, considered it and decided to continue using its own test. In the plaintiff’s lawsuit, the city moved for summary judgment and the district court found the IAFF test had less of a disparate impact on women than the Madison test. However, it agreed with city that the IAFF test did not adequately serve its legitimate needs and granted summary judgment.

On appeal, the 7th Circuit agreed that the plaintiff established her prima facie case that the Madison test had a disparate impact on female applicants. Nevertheless, it found that the plaintiff had not shown that the IAFF test would adequately serve the fire department’s legitimate needs. City staff had testified that its pike pole test reflected a best practice for the safety of firefighters, and the city showed that it had a higher percentage of female firefighters than the national average. The court noted that the plaintiff did not provide testimony that the IAFF test would have produced candidates roughly as qualified as those who passed the Madison test.

Thus, the 7th Circuit upheld the dismissal of the plaintiff’s claim.

Erdman v. City of Madison, 7th Cir., No. 22–2433 (Jan. 22, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.