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Sept. 19 — Five experienced female paramedics who were rejected for City of Chicago medic jobs had their lawsuit challenging the Fire Department’s physical-fitness exam revived by the U.S. Court of Appeals for the Seventh Circuit ( Ernst v. City of Chicago , 2016 BL 307419, 7th Cir., No. 14-3783, 9/19/16 ).
In 2000, Chicago implemented a physical-skills test for paramedics, and it was designed by a private company. One of the city’s previous tests was found to have a disparate impact on women. The five paramedics sued after the city rehired the same company to design its new test without taking bids from anyone else.
They alleged that the city intended to keep women out of the medic jobs and that the test was based on improper statistical methods that led to an unintended disparate impact on women.
The Seventh Circuit overturned a decision in the city’s favor, saying the trial judge gave the jury a misleading instruction that hurt the female medics' case. Additionally, the test didn’t accurately test skills that paramedics actually use on the job, and the sample population used to establish physical standards didn’t represent the general paramedic population, Judge Daniel Manion wrote in the Sept. 19 decision. The court remanded the case for a new jury trial.
“Designing physical ability tests that accurately represent the tasks performed in a job is critical. Another of the most important aspects to consider if you're going to be using one of these tests is how are you going to use it,” Cody Reeves, a professor of organizational leadership and strategy at the Brigham Young University Marriott School of Business, told Bloomberg BNA Sept. 19.
“Do you want the fastest and strongest for your purposes? Or are you using it simply as a cutoff point for minimal qualifications—how you use the test could have very large implications,” he said.
Reeves was the co-author of a meta-analysis of sex differences in physical ability that included strategies for reducing sex differences on physical ability tests. He noted that there is a large and significant difference between men and women with regard to upper body muscular strength.
Generally, fire and police departments frame their exams—at least for entry-level positions—as seeking minimally qualified applicants, as opposed to selecting the top scores.
“One of our big take-aways is if you’re looking at activities that require great amounts of muscular strength or cardiovascular endurance, and if you’re looking for the highest level performers, you will likely find many more men than women—there just is an actual, very large difference in human subgroups,” Reeves said. “So with that large of a difference, you're probably not going to see a 50/50 split, you might see a great divide” in terms of sex at a job with a similar exam.
Nonetheless, the purpose of the screening tools—whether to focus on finding the best physical performers, or simply those who meet a minimum performance level—can still affect the outcomes significantly, he said.
“One of the things we looked at was what happens if the applicants have training before the test,” Reeves said. “The performance of both men and women improves with training, but in some cases the gap between men and women actually gets larger after training, so if your purpose is to find the fastest and strongest, training beforehand may place women at a disadvantage. On the other hand, if the goal is simply ‘we have this minimum hurdle every applicant has to get over,' training could actually help put women over that bar and could be helpful.”
Lawsuits challenging the fitness tests of police and fire departments aren't uncommon.
The New York City Fire Department changed its policies in 2014; it no longer requires applicants to pass a physical test. Applicants take several selection tests but can fail the physical exam and still qualify. In another instance, the Colorado Springs, Colo., Police Department stopped requiring physical exams in 2015 after 12 female officers challenged them in a lawsuit.
“In the case of firefighters, using these tests can be pretty blunt hiring for somebody who’ll be engaged in a bunch of different tasks,” Reeves said.
Reeves recalled a story about a child trapped in a small space who could only be rescued by a “petite woman” who happened to be on the rescue team.
“In that case, this person had a unique qualification that helped in a particular situation,” Reeves said. “If you're using a one-size-fits-all hiring approach that may reduce the likelihood of hiring somebody whose skills may be necessary, you may want to consider creating specialist positions as opposed to hiring for a single firefighting position.
“If you know your organization will need someone who possesses certain knowledge or has a particular skill or ability, you should be hiring at least some employees based on that knowledge, skill, or ability,” Reeves said.
The professor noted the difficulty in anticipating every issue that might arise on the job or every problem a type of person or person with a particular skill could handle.
“Certainly you cannot expect hiring managers to foresee every possible scenario, but you could map out some. In some cases, creating separate positions for a specialist or two might be a functional solution,” Reeves said.
Goldstein, Borgen, Dardarian & Ho in Oakland, Calif., represented the applicants. The Chicago law department represented the city.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/STACY_ERNST_et_al_Plaintiffs_Appellants_v_CITY_OF_CHICAGO_Defenda.
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