Wisconsin capital’s firefighter aptitude test survives Seventh Circuit scrutiny

CHICAGO (CN) — The Seventh Circuit Court of Appeals ruled in favor of the Badger State's capital city of Madison on Monday in a case that asked whether the city was discriminating against female prospective firefighters.

The main issue was Madison's unique physical aptitude test for firefighters, the Madison Physical Ability Test. A female firefighter named Catherine Erdman sued the city in 2016 on a Title VII claim after she failed the Madison test in 2014. She argued she would have passed if the city used a more common physical exam known as the Candidate Physical Ability Test, developed by the International Association of Fire Fighters and used in multiple U.S. cities.

Both tests require applicants to complete a number of similar physical trials within a time limit, like climbing stairs wearing a weighted vest and using a pike pole to breach a ceiling. But there are also a number a differences between the two. While the CPAT requires completing the entire test within 10 minutes and 20 seconds, Madison applicants are timed separately for each of the seven trials they have to complete.

Erdman was cut from the 2014 pool of Madison applicants after failing to complete ladder-positioning and pike pole trials within the allotted time, but has passed the Candidate Physical Ability Test twice, according her appellate brief. She is currently employed as a firefighter in the town of Janesville, Wisconsin.

The three-judge appellate panel presiding over the case heard oral arguments last September. Erdman was seeking a new trial after her 2016 case ended with an adverse ruling from District Judge William Conley in July 2022 — nearly four years after it went to a bench trial in October 2018.

The trio of appellate judges conceded in their 27-page opinion on Monday, as did Conley in 2022, that the Madison exam may disparately impact women. As Erdman's attorney Jeff Olson pointed out in September, women failed the test at seven times the rate of men.

Despite this, the panel found that the Madison test did not violate Title VII discrimination law.

Instead, the appellate panel affirmed the district court's 2022 ruling in Madison's favor, which found the city's unique firefighter test — despite its prima facie disparate impact on women — served "legitimate needs" regarding city firefighter qualification and job safety.

The panel also found Erdman had failed to show how the CPAT would be a satisfactory replacement.

"Even if Erdman had come forward with stronger affirmative evidence of the IAFF test’s validity as applied to Madison, the city offered substantial evidence to the contrary," U.S. Circuit Judge David Hamilton, a Barack Obama appointee, wrote in the panel's opinion.

The panel, also consisting of George H. W. Bush appointee U.S. Circuit Judge Ilana Rovner and Donald Trump appointee U.S. Circuit Judge Michael Brennan, similarly repeated the lower court's point that Madison retains a relatively higher number of women firefighters than the national or Wisconsin state average.

Per the Madison Fire Department's annual report in 2020, roughly 11% of Madison firefighters are women, more than any other city in Wisconsin and more than double the national average.

The lower court argued in its ruling that one possible reason for the disparity was the CPAT itself; that while it may prove less adverse to female applicants on its face, it could lead to more women washing out "after the additional expenditure of time and money at the academy phase."

The appellate court was not as convinced on this point. Hamilton highlighted that a woman, Debra Amesqua, was Madison's fire chief for 16 years. She retired in 2012.

"Other possibilities may explain Madison’s stronger record," Hamilton wrote. "These may include the fact that Madison’s fire department was led by a woman for 16 years, that the city has a genuine commitment to hiring more women, that it may have a work environment that is welcoming to women, and provides role models, mentoring, and support for newly-hired women that may be missing in other cities."

The courts' rulings against Erdman also hinged on U.S. government taboo on interfering in business affairs. Though the Madison Fire Department is not a private, for-profit enterprise, it is an employer. This was enough for Conley, who in his 2022 decision cited the 1978 Supreme Court case Furnco Construction Corp. v. Waters. In that case, the high court held that seemingly discriminatory hiring practices can be justified if "they were required for the safe and efficient operation of... business."

"Courts are generally less competent than employers to restructure business practices, and, unless mandated to do so by Congress, they should not attempt it," Conley wrote in 2022, citing Waters.

The Seventh Circuit's decision on Monday echoed this philosophy.

"If a job applicant makes a prima facie showing of disparate impact, an employer can defend by showing that: the challenged practice does not cause the disparate impact, or the practice is job-related for the position and consistent with business necessity," Hamilton wrote.

Despite the court's decision against her Title VII claim, court documents indicate Erdman still wishes to join the Madison Fire Department and "intends to apply during future recruitments."

Follow @djbyrnes1

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