In Ernst v. City of Chicago, the Seventh Circuit Court of Appeals decided whether the City of Chicago discriminated against female job applicants in violation of Title VII. The applicants for paramedic jobs claimed that a physical test disparately impacted women and that the city had a discriminatory intent when it implemented the test.

JUDGMENT QUESTIONED

Some experienced female paramedics applied for paramedic positions with the City of Chicago Fire Department but weren’t hired because they failed the physical test. These women brought suit against the city for gender discrimination under Title VII, alleging disparate treatment and disparate impact. A jury heard the disparate treatment claim. The disparate impact claim was argued in a bench trial. On both claims, judgment was entered in favor of the city. The paramedics appealed.

DISPARATE TREATMENT

Title VII prohibits employment actions that are motivated by intentional discrimination against employees based on sex. Such discrimination is considered disparate treatment. To succeed on a disparate treatment claim, an employee must prove that the employer had a discriminatory motive for taking a job-related action.

In this case, the paramedics appealed the trial court’s disparate treatment judgment, arguing that it had set forth an erroneous jury instruction. The instruction stated that, “[t]o determine that a Plaintiff was not hired because of her gender, you must decide that the City would have hired the Plaintiff had she been male but everything else had been the same.”

The appeals court agreed with the paramedics. It held that the jury instruction should have focused on the paramedics’ burden of proving that the city was motivated by antifemale bias when it created the physical test that caused the paramedics not to be hired. The trial court’s instruction focused on gender in the specific decisions not to hire the paramedics but didn’t discuss whether the city had an antifemale motivation in creating the physical test. The appeals court found that this erroneous jury instruction prejudiced the paramedics, thus warranting a new trial with proper instructions.

DISPARATE IMPACT

The paramedics also appealed the disparate impact judgment that had favored the city. Title VII prohibits employment practices that have a disproportionately adverse impact on employees with protected characteristics, such as gender, even if the impact isn’t intentional. One defense to a disparate impact claim is that the practice at issue is job-related and consistent with the employer’s business necessity.

The city conceded that the physical test had an adverse impact on women. The burden then shifted to the city to show that the test was job-related and consistent with business necessity. It relied on a validity study to establish that the test was job-related. The creator of the test designed three exercises with input from the City’s Fire Department:

1. Lifting and carrying,
2. A stair-chair push, and
3. A stretcher lift.

But the appeals court found that the study didn’t satisfy the city’s burden. It was established that stair-chairs weren’t commonly used and that stair-chair pushes and stretcher lifts were more difficult than the tasks paramedics usually performed on the job. Furthermore, female paramedics’ scores on the test were much lower than the male paramedics’ scores. Due to such discrepancies, the appeals court decided that the city had failed to prove that the physical test was job-related and consistent with a business necessity. Judgment was reversed on the disparate impact claim and entered in favor of the women applicants.

NOT NECESSARILY NEUTRAL

The lesson of Ernst v. City of Chicago is clear. When creating pre-employment tests, employers need to consider whether they discriminate against one class of applicants — even if the tests seem neutral. To avoid Title VII claims, make sure tests are job-related and consistent with business necessity.