Stacy Ernst v. City of Chicago
2016 U.S. App. LEXIS 17057, 837 F.3d 788, 101 Fed. R. Serv. 543 (2016)
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Rule of Law:
Under Title VII, an employer's physical skills test that has a disparate impact on a protected class is not 'job-related and consistent with business necessity' if the validation study supporting it is unreliable, uses unvalidated criteria that do not reflect primary job skills, is based on an unrepresentative sample, or tests for skills significantly more demanding than the actual job requires.
Facts:
- From the 1970s until 2000, the City of Chicago hired paramedics without administering a physical skills test.
- In 2000, Chicago hired Human Performance Systems, Inc., led by Deborah Gebhardt, to create a physical skills test for paramedic applicants. Gebhardt had previously created a test for Chicago firefighters that had a disparate impact on women.
- Gebhardt conducted a 'concurrent validation study' using incumbent Chicago paramedic volunteers, who were found to be physically 'above average' compared to the general paramedic population.
- The study was designed to validate a set of physical skills by correlating them with performance on three 'work samples': a lift and carry, a stair-chair push, and a stretcher lift.
- Gebhardt abandoned using supervisor and peer performance ratings as a validation criterion because those ratings showed minimal performance differences between men and women, whereas the skills tests showed large gaps.
- In 2004, Stacy Ernst and four other experienced female paramedics applied for positions with the Chicago Fire Department.
- All five women failed the physical skills test and were subsequently denied employment.
- Between 2000 and 2009, data showed that 98% of male applicants passed the test, while only 60% of female applicants passed.
Procedural Posture:
- Stacy Ernst and four other women filed a lawsuit against the City of Chicago in the U.S. District Court, alleging gender discrimination in violation of Title VII.
- The district court split the case into two trials: a jury trial for the disparate treatment claims and a bench trial (judge-only) for the disparate impact claims.
- The jury returned a verdict for the City of Chicago on the disparate treatment claims after the judge provided a contested 'but-for' causation instruction.
- Following the bench trial, the district court entered judgment for the City of Chicago on the disparate impact claims, finding the City's physical skills test was job-related and consistent with business necessity.
- The plaintiffs (Ernst et al.) appealed both judgments to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does a physical skills entrance exam for paramedics satisfy the 'job-related and consistent with business necessity' defense under Title VII when the validation study supporting it uses an unrepresentative sample of incumbent paramedics and relies on unreliable and unvalidated 'work samples' that do not reflect the primary skills of the job?
Opinions:
Majority - Manion, Circuit Judge.
No. The physical skills exam does not satisfy the 'job-related and consistent with business necessity' defense because its underlying validation study fails to meet federal standards for reliability and validity. The court found that Chicago failed to carry its burden to prove the test was job-related because the study Gebhardt conducted was critically flawed in several ways. First, the sample population of incumbent paramedics was admittedly 'above average' and not representative of the candidates normally available in the labor market as required by 29 C.F.R. § 1607.14(B)(4). Second, the study lacked reliability, as the 'lift and carry' work sample had a reliability coefficient of only 0.503, equivalent to a coin toss, which tainted the entire study since all skills were validated against it. Third, the study lacked validity because the work samples used to validate the skills tests were never themselves validated against actual job performance, creating a 'statistical form of self-affirmation.' Finally, the work samples did not test for 'primary' on-the-job skills and were significantly more difficult than the tasks paramedics actually perform; for example, the stretcher lift required a single paramedic to lift up to 220 pounds repeatedly, while paramedics typically work in pairs to lift lighter loads over short distances. The court also held that the district court erred on the separate disparate-treatment claim by giving the jury a 'but-for' causation instruction instead of one focused on the City's discriminatory motive for creating the test in the first place.
Analysis:
This decision provides a detailed framework for challenging employment screening tests under Title VII's disparate impact theory, significantly raising the bar for employers seeking to validate such tests. It strongly rejects 'statistical self-affirmation,' where a test is validated against another unvalidated metric rather than actual job performance. The ruling emphasizes that validation studies must withstand rigorous scrutiny regarding sample representativeness, reliability, and the connection between tested skills and the primary, real-world duties of the job. For future litigants, this case serves as a powerful precedent that an employer cannot defend a discriminatory test by showing it correlates with tasks that are significantly more demanding or qualitatively different from what the job actually entails.
