Wisconsin firefighter who says entry test skews against women seeks new trial at Seventh Circuit

CHICAGO (CN) — The Seventh Circuit Court of Appeals on Thursday weighed whether Wisconsin's capital city systematically discouraged women from becoming firefighters.

That's the accusation brought by a female firefighter named Catherine Erdman, who says she was denied her shot at joining the Madison Fire Department in 2014 due to sex discrimination baked into the city's firefighter physical aptitude test.

“In 2014, of the men who appeared to take the Madison Fire Department's physical abilities test… 84% passed. Only 14% of the women passed. That means women passed at 16% the rate that men passed at," Erdman's attorney Jeff Olson told the appellate panel on Thursday.

Unlike many other U.S. cities, which gauge would-be firefighters using the internationally approved Candidate Physical Ability Test, Madison uses its own test, the Madison Physical Ability Test.

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. Most notably, while the widely used physical ability test requires completing it as a whole within 10 minutes and 20 seconds, Madison applicants are timed separately for each of the seven trials they have to complete.

This serves as a structural barrier to prospective female firefighters in Madison, Olson and Erdman's appellate brief both argued, worsening the disadvantage most biological females inherently face on physical aptitude tests when compared with most biological males.

To highlight this claim Olson pointed out that, according to a 2008 study, over two-thirds of women who take the more widely used test pass it — far more than the mere 14% of women who passed Madison's idiosyncratic test in 2014.

"That's not equal, but it's a lot closer to equal than the Madison test," Olson said.

Erdman was cut from the pool of Madison applicants in 2014 after failing to complete ladder-positioning and pike pole trials within the allotted time, but has passed the Candidate Physical Ability Test twice and is currently employed as a firefighter in the town of Janesville, Wisconsin. Citing this as evidence of Title VII discrimination on Madison's part, she sued the city in the Western Wisconsin federal court in November 2016.

It was a suit she lost. Following an October 2018 bench trial, District Judge William Conley, a Barack Obama appointee, ruled in favor of Madison in July 2022. Conley admitted in his decision that fewer women pass the Madison test, but said Erdman hadn't shown how Madison switching to the Candidate Physical Ability Test would "serve its legitimate needs."

"Given plaintiff bears the burden to prove the CPAT would serve the Madison Fire Department’s legitimate needs, when coupled with the Seventh Circuit’s admonition that 'courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it,' the court concludes that plaintiff has not demonstrated... that the CPAT meets the Department’s legitimate needs as an alternative to the 2014 [M]PAT," Conley wrote.

An appeal to the Seventh Circuit followed, and on Thursday the city's own attorney Storm Larson repeated several of Conley's arguments. He claimed the Madison test has "been tailored to the city’s needs,” noting its stair climb trial is based on the average height of Madison buildings. He doubted the the widely used candidate test could provide that level of bespoke preparation for firefighters working in the city.

“The district court found that there was, quote, ‘overwhelming evidence’ about the reasons why the MPAT satisfied the city’s own needs,” Larson said.

Larson also called the case a “tidy vehicle” for the Seventh Circuit to “resolve lingering ambiguity about what constitutes a specific employment practice for Title VII.”

The appellate panel's reaction to his and Olson's arguments seemed split along gender lines. U.S. Circuit Judge David Hamilton noted that, even using its own test, Madison has a relatively high share of female firefighters compared to other U.S. cities. Per a 2020 report, roughly 11% of Madison firefighters are women, more than any other city in Wisconsin.

“What do we make of the next factor that Madison has about as high a ratio of female firefighters as any city in the country?” the Barack Obama appointee asked Olson.

The attorney waved off that question by saying many other factors could contribute to male-female firefighter ratios in other cities that use Candidate Physical Ability Test, but Hamilton didn't seem convinced by the answer.

U.S. Circuit Judge Michael Brennan, a Donald Trump appointee, also used Erdman's current employment in Janesville to implicate the question of her standing.

The Ronald Reagan-appointed U.S. Circuit Judge Ilana Rovner, however, was far more critical of Larson's arguments, citing the more widely used test's approval by the International Association of Fire Fighters and its use by cities from New York to Seattle.

“Given that the CPAT was designed on behalf of 10 different jurisdictions, and it appears to me that the CPAT has a substantial history of successful use by many other jurisdictions, I have a hard time imagining why it could not meet the city’s legitimate needs," she said. "I mean, what is so unique about firefighting in Madison that a test in nationwide use… cannot meet the city’s needs?”

Larson again stated that the city designed the test for its own employees' use, and as the Seventh Circuit itself has directed, courts are generally not allowed to interfere with "business practices."

“The CPAT is simply not testing the same sorts of characteristics and events that experts since at least 1997 have found to be meeting the city of Madison's needs at a wonderful efficacy rate,” Larson said.

The panel took his and Olson's arguments under advisement but did not say when it would return a ruling.

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