Stacy Ernst v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 14-3783 & 15-2030

STACY ERNST, et al.,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO,

Defendant-Appellee.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:08-cv-04370 — Charles R. Norgle, Judge.

____________________

ARGUED FEBRUARY 25, 2016 — DECIDED SEPTEMBER 19, 2016

____________________

Before BAUER, MANION and KANNE , Circuit Judges.

MANION, Circuit Judge. After Stacy Ernst and four other

women applied unsuccessfully to work as Chicago paramed-

ics, they brought this Title VII gender-discrimination lawsuit

against the City of Chicago. These women were experienced

paramedics from public and private providers of emergency

medical services; they sought employment as paramedics

with the Chicago Fire Department, but they did not apply to

2 Nos. 14-3783 & 15-2030

firefighting positions. All five women were denied jobs be-

cause they failed Chicago’s physical-skills entrance exam.

In district court, this Title VII case was split into two parts.

The plaintiffs’ disparate-treatment claims went to a jury trial,

in which the district court provided an erroneous jury instruc-

tion. Their disparate-impact claims were tried in a separate

bench trial. This second group of claims turned largely on

whether Chicago’s test was based on a statistically validated

study of job-related skills. We remand for a new jury trial on

the disparate-treatment claims, reverse the bench trial’s ver-

dict on disparate impact because the physical-skills study was

neither reliable nor validated under federal law, and affirm

the evidentiary rulings below.

Background

The Chicago Fire Department employs several hundred

paramedics. 1 When hiring new paramedics, Chicago has not

always tested its applicants’ physical skills. From the 1970s

through the year 2000, paramedics were hired without any

physical test. The hiring process changed in 2000, however,

when Chicago implemented a physical-skills test created for

it by Human Performance Systems, Inc. Deborah Gebhardt,

the president of HPS, led this test-creation process.

Gebhardt had previously created a physical test for the

Chicago Fire Department’s entry-level firefighters. That test

had a disparate impact on women. The plaintiffs argue that

Chicago’s decision to rehire Gebhardt for the paramedic test,

1 The factual statements in this opinion are drawn from the record

presented on appeal; they should not be read as binding factual findings

when the plaintiffs’ disparate-treatment claim is retried before a jury.

Nos. 14-3783 & 15-2030 3

without taking bids from anyone else, reflects Chicago’s de-

sire to reduce the number of women it hired as paramedics.

In this case, Gebhardt tested volunteer Chicago paramed-

ics. These were incumbent paramedics working for the Chi-

cago Fire Department. Gebhardt tested these study volun-

teers on physical skills designed to reflect job-related skills.

She tested the paramedics on three “work samples” also de-

signed to reflect job-related skills. Then she compared the re-

sults from the skills testing with the results from the work-

sample testing. Through this process, Gebhardt selected

physical skills that, together, formed Chicago’s physical-skills

entry exam for paramedic applicants. This was a concurrent

validation study, as this opinion will later explain.

Between 2000 and 2009, nearly 1,100 applicants took

Gebhardt’s entrance examination. Among these, 800 were

men, and 98% of the male applicants passed. Another 300

were women; 60% of female applicants passed. Stacy Ernst,

Dawn Hoard, Katherine Kean, Michelle Lahalih, and Irene

Res-Pullano took the test in 2004, as licensed paramedics with

experience working in other public fire departments or for

private ambulance services. In their daily work, they moved

patients and did so safely. When they took the Chicago phys-

ical-skills examination, however, they all failed.

After they were denied employment based on their exam

results, Ernst and her fellow plaintiffs filed suit. They chal-

lenged the skills test as discriminatory; they urged that there

was no evidence of Chicago paramedics ever lacking the

physical ability to properly care for their patients. Instead,

they argued, the test was implanted to keep women out. Ulti-

mately, their suit had two parts. On their disparate-treatment

4 Nos. 14-3783 & 15-2030

claims, they asked a jury to find that Chicago had a discrimi-

natory motive against women when Chicago implemented its

skills test. On their disparate-impact claims, the plaintiffs ar-

gued in a bench trial that improper statistical methods were

used to establish the skills test.

The jury instruction on disparate treatment was vigor-

ously debated before both the magistrate judge and the dis-

trict judge. The plaintiffs urged that their burden on this dis-

parate-treatment claim was to prove illegal purpose: that Chi-

cago had a discriminatory intent or motive for implementing

the skills test. When arguing before the magistrate judge, Chi-

cago claimed that the plaintiffs had to satisfy a but-for test:

that Chicago would have hired the plaintiffs if, all other fac-

tors being equal, they were male. In responding to this effort,

the magistrate judge said, “That is absolutely not what this

case is about at all. At all. And you know it.”

The disparate-treatment jury instruction, labeled Jury In-

struction 24 at all times in this case, included this language

when the magistrate judge settled the instructions:

Plaintiffs contend the City discriminated

against them on the basis of sex in violation of Title

VII of the Civil Rights Act of 1964, as amended. In

order to succeed on this claim, Plaintiffs must prove

by a preponderance of the evidence that the City

intentionally created or used the physical abilities

test for the purpose of excluding females or reduc-

ing the number of females who would be hired as

paramedics by the Chicago Fire Department. The

City denies that it intentionally created or used the

physical abilities test to discriminate against female

applicants.

Nos. 14-3783 & 15-2030 5

It is not enough for Plaintiffs to prove merely

that the City knew the physical abilities test would

have an adverse impact on female applicants. An

adverse impact exists where the rate at which fe-

male applicants pass the test is substantially less

than the rate at which male applicants pass. The

parties do not dispute that the test had an adverse

impact.

As approved by the magistrate judge, Jury Instruction 24

went on to explain that the plaintiffs should prevail if they

prove by a preponderance of the evidence that Chicago “in-

tentionally created or used” the skills test to “exclude or re-

duce” the women hired as paramedics. If the plaintiffs did not

prove this, however, Chicago must prevail. There was no

problem with the jury instruction on disparate treatment as

established at this point in the litigation.

Chicago was not done urging the but-for test, however,

and the City successfully resurrected its argument before the

district judge. After a hearing on the matter, the district judge

issued a written order that ruled for the defense. He stated

that “[b]ecause this is ‘an individual action, rather than a class

action, evidence of a pattern of practice can only be collateral

to evidence of specific discrimination against the plaintiff[s].’”

App. 13 (citing Matthews v. Waukesha Cty., 759 F.3d 821, 829

(7th Cir. 2014)) (quotation marks in original). Given this reli-

ance on the individual-action analysis, the district judge

struck the original contents of Jury Instruction 24. He inserted

the pattern instruction on General Employment Discrimina-

tion, so that Instruction 24 now read:

Each Plaintiff claims that she was not hired as a

Chicago Fire Department Paramedic because of her

6 Nos. 14-3783 & 15-2030

gender. To succeed on this claim, each Plaintiff

must prove by a preponderance of the evidence

that she was not hired by the City of Chicago be-

cause of her gender. To determine that a Plaintiff

was not hired because of her gender, you must de-

cide that the City would have hired the Plaintiff

had she been male but everything else had been the

same.

When the case went to the jury, the jurors expressed con-

fusion over this instruction. After deliberating for 90 minutes,

they sent a note to the district court: “Question to the Judge

regarding instruction 24. Please provide clarification of the

sentence, quote: To 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.” While the district court and parties were

discussing this, a second note came out: “The jury cannot de-

liberate further without a response to our question. May we

know what the time [is] for a response?” The district court

provided this written response, to which the plaintiffs ob-

jected: “Reread all instructions. The sentence you are asking

to clarify speaks for itself.” Four minutes later, the jury re-

turned a verdict for the defense.

During the bench trial on disparate impact, the district

court found it clear that the plaintiffs had established a dis-

parate impact on women. The burden therefore shifted to Chi-

cago, which had to prove that its physical-skills test was job-

related and consistent with business necessity. In adopting

Chicago’s proposed conclusions of law, the district court con-

cluded that Gebhardt’s validation study satisfied Chicago’s

burden. The issues at this point in this trial turned on whether

Nos. 14-3783 & 15-2030 7

Gebhardt’s study satisfied the law’s technical standards for

validity studies, which appear at 29 C.F.R. § 1607.14(B)(4). The

district court wrote that the “[p]laintiffs’ arguments attacking

Dr. Gebhardt’s job analysis, validation study under the crite-

rion method, and the process of determining the 935 passing

score are unavailing and are rejected.” Dist. Ct. Docket 604 at

2. Accordingly, the burden shifted back to the plaintiffs, who

had to show that Chicago had rejected a substantially equally

valid, but less discriminatory, alternative to the skills test. On

this, the district court concluded that the plaintiffs offered as-

sertions without evidence. The district court thus entered

judgment for Chicago.

The plaintiffs lost both trials. They now bring this appeal,

which centers on three issues. First, they challenge the dispar-

ate-treatment jury instruction that the district judge gave in

the jury trial. Second, the bench trial on disparate impact

yielded a defense verdict on the statistical methods underly-

ing the skills test, and the plaintiffs challenge those methods.

Third, the plaintiffs argue cumulative error from a series of

evidentiary rulings. We address these issues in turn.

Discussion

The Civil Rights Acts of 1964 and 1991, known collectively

for our purposes as Title VII, prohibit two types of discrimi-

nation. Ricci v. DeStefano, 557 U.S. 557, 577 (2009). First, Title

VII prohibits job-related actions that are motivated by inten-

tional discrimination against employees, based on protected

employee statuses such as race or sex. See id. (quoting 42

U.S.C. § 2000e-2(a)(1)). This is known as disparate treatment.

Plaintiffs must prove that an employer had a discriminatory

motive for taking a job-related action. Id. During the jury trial

in this case, the plaintiffs argued that Chicago adopted its

8 Nos. 14-3783 & 15-2030

physical-skills entrance exam in an effort to reduce or elimi-

nate the number of women it hired as paramedics.

Second, Title VII prohibits employment practices that

have a disproportionately adverse impact on employees with

protected characteristics, even if the impact is unintended. See

id. This is disparate impact. Employers can defend against a

disparate-impact claim by demonstrating that the challenged

practice is job-related for the employee’s position and con-

sistent with business necessity. 42 U.S.C. § 2000e-2(k)(1)(A)(i).

Even if the employer establishes this, however, an employee

can still prevail by proving that the employer has rejected an

available alternative job practice that (1) results in a less dis-

parate impact, and (2) serves the employer’s legitimate needs.

Ricci, 557 U.S. at 578 (citing 42 U.S.C. §§ 2000e-2(k)(1)(A)(ii),

(C)). Chicago does not dispute that its skills test has an ad-

verse impact on women. As Chicago admits, the passing rate

for women is about 60% of the passing rate for men. The par-

ties dispute, however, whether the test is job-related and con-

sistent with business necessity.

When reviewing claims that a business practice is insuffi-

ciently related to a business necessity, we bear in mind that

“‘[c]ourts are generally less competent than employers to re-

structure business practices, and unless mandated to do so by

Congress they should not attempt it.’” Watson v. Fort Worth

Bank & Trust, 487 U.S. 977, 999 (1988) (quoting Furnco Constr.

Corp. v. Waters, 438 U.S. 567, 578 (1978)).

A. The Disparate-Treatment Claims: Jury Instruction 24

The plaintiffs begin by appealing the jury instruction on

their disparate-treatment claims. We review jury instruction

challenges de novo. Lewis v. City of Chi. Police Dep’t, 590 F.3d

Nos. 14-3783 & 15-2030 9

427, 433 (7th Cir. 2009). District courts have substantial discre-

tion in how to precisely word jury instructions, provided that

the final result, read as a whole, is a complete and correct

statement of the law. Id. We only reverse when jury instruc-

tions are so misleading or confusing that they prejudice a

party. Id. Though we strive for common-sense readings of

jury instructions, and we avoid nitpicking, we also recognize

the importance of getting jury instructions right. See id. Even

when a party fails to object to a jury instruction, a mistaken

instruction is preserved for plain-error review if it impacts

“substantial rights.” Fed. R. Civ. P. 51(d)(2).

In giving Jury Instruction 24, the district judge relied on

our ruling in Matthews v. Wakesha County, 759 F.3d 821 (7th

Cir. 2014). That case is distinguishable. There, Bernadine Mat-

thews applied for employment as an Economic Support Spe-

cialist or Supervisor in Waukesha County, Wisconsin. Be-

cause she did not satisfy the minimum requirements for either

job, she never received a job offer. Matthews eventually sued

Waukesha County for racial discrimination. She argued that

she should be allowed to bring a Title VII disparate-treatment

claim based, not on evidence of racial discrimination against

her in particular, but on statistics indicating that racial dis-

crimination exists against blacks in general. This is the argu-

ment we rejected in Matthews, where we explained that she

“would need to present evidence indicating that racial dis-

crimination was the employer’s standard operating proce-

dure—the regular rather than unusual practice.” Id. at 829.

This is why we stated that “‘evidence of a pattern or practice

can only be collateral to evidence of specific discrimination

against the plaintiff.’” Id. In Matthews, the plaintiff failed to

present any disparate-treatment claim at all.

10 Nos. 14-3783 & 15-2030

In contrast, the plaintiffs in this case argue that Chicago

created a new standard operating procedure, with the specific

intention of reducing or removing women from among its

new paramedic hires. They do not rely on generalized claims

of statistical bias against women; instead, they argue that

there was no legitimate professional or safety need for Chi-

cago to implement this particular skills test. These arguments

place Ernst and her fellow plaintiffs in a different category

than Matthews. Whether or not they should win, they at least

presented a proper disparate-treatment claim, as indicated by

the district court’s denial of summary judgment. At trial, the

plaintiffs also presented enough evidence to at least support

a correct instruction on disparate treatment.

Here, the jury should have been instructed on the plain-

tiffs’ burden of proving that Chicago was motivated by anti-

female bias, when Chicago created the entrance exam that

caused these plaintiffs not to be hired. See Ricci, 557 U.S. at

577. Instead, jurors were instructed on a different burden,

which failed to address Chicago’s motive for creating the

skills test: “To 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.” This instruction focused on gender as a factor in

the specific decisions not to hire these five plaintiffs, without

expressly stating the mandatory question: whether Chicago

had an anti-female motivation for creating its skills test. The

magistrate judge’s version of Instruction 24 more accurately

reflected Title VII’s focus on whether there was a discrimina-

tory motive behind Chicago’s conduct. See id.

This legal error would be enough to establish prejudice,

but the record goes a step further. It shows that the jurors saw

Nos. 14-3783 & 15-2030 11

this instruction as the pivotal issue before them, particularly

when they sent a note stating that “[t]he jury cannot deliber-

ate further without a response to our question.” Only four

minutes after the district judge instructed them to take In-

struction 24 at face value, they returned a defense verdict. Un-

der these circumstances, we must remand the disparate-treat-

ment claims for a new trial with proper instruction, namely,

the magistrate judge’s version of Jury Instruction 24.

B. The Disparate-Impact Claims: Validating the Skills Test

Having addressed the jury instruction on disparate treat-

ment, we turn to disparate impact. The district court found no

problem with Gebhardt’s job analysis and validity study. It

thus entered a verdict for the defense. Because the disparate-

impact rulings were made in a bench trial, we review the dis-

trict court’s legal conclusions de novo and review factual find-

ings for clear error. Bridgeview Health Care Ctr., Ltd. v. Clark,

816 F.3d 935, 937–38 (7th Cir. 2016).

To prove a disparate-impact case, a plaintiff must show an

adverse impact on employees with a protected characteristic

like gender. Chicago concedes that its physical-skills entrance

test has an adverse impact on women. The burden thus shifts

to Chicago, which must show that its physical-skills testing is

job-related for the employee’s position and consistent with

business necessity. 42 U.S.C. § 2000e-2(k)(1)(A)(i). In this case,

Chicago relies on Gebhardt’s validity study to establish that

its physical-skills test is job-related. Employers are not re-

quired to support their physical-skills tests with formal vali-

dation studies, which “show[] that particular criteria predict

actual on-the-job performance.” Watson, 487 U.S. at 998. When

12 Nos. 14-3783 & 15-2030

an employer relies on a validity study, however, federal reg-

ulations establish technical standards for these studies. See 29

C.F.R. § 1607.14(B)(4).

1. A technical explanation

Before we analyze the federal regulations on validity stud-

ies, some technical explanation may be useful. We begin this

section by discussing the terms used in federal regulations

and Gebhardt’s validity study, in an effort to help readers

navigate the complex record we are examining. 2

Validity is the extent to which a study accurately measures

what it sets out to measure. In this case, Gebhardt’s study

sought to measure the physical skills of incumbent Chicago

paramedics. Her study was valid to the extent that it accu-

rately measured their physical skills.

The type of validity study that Gebhardt chose was a cri-

terion-related validity study. Researchers decide what criteria

they use. Here, Gebhardt solicited job-performance ratings

from the volunteer paramedics’ supervisors and peers. This

was one set of criteria. In addition, Gebhardt created work

2 We recognize that the court is not a statistical expert, yet we must

also acknowledge that the law mandates statistical discussion in this case.

We therefore note that the terms described here are drawn from federal

regulations, the parties’ briefs, trial testimony, Gebhardt’s statistical re-

port as it appears in the record, and other studies. Our use of technical

terms is also consistent with the use of these terms in previously issued

court rulings. See, e.g., Watson, 487 U.S. at 998 (“formal ‘validation studies’

show[] that particular criteria predict actual on-the-job performance.”);

Guardians, 633 F.2d at 244 (“Criterion-related validity studies correlate test

scores with job performance.”).

Nos. 14-3783 & 15-2030 13

samples, which were supposed to represent on-the-job skills.

The work-sample scores were another set of criteria.

A criterion-related validity study measures a study’s va-

lidity by comparing the assessment-tool results with the cri-

teria. In this case, the assessment tool is a test of physical

skills. Gebhardt would correlate the results of the assessment

tool (the skills-test scores) with the results of the criteria (ei-

ther the job-performance ratings or the work-sample scores).

If there is a strong correlation, the assessment tool is vali-

dated. From a validated study, Gebhardt could conclude that

her skills tests accurately assess test-takers for whether they

have the physical skills that paramedics learn on the job. In

contrast, if there is a weak correlation or no correlation at all,

the assessment tool is not validated. From a study that is not

validated, Gebhardt would not conclude that her skills testing

could assess actual skills learned on the job.

There are two types of criterion-based validity studies: a

researcher can conduct a predictive validity study or a con-

current validity study. The predictive approach may be some-

what stronger, as suggested by the fact that federal regula-

tions require courts to conduct additional scrutiny into con-

current validity studies. See 29 C.F.R. § 1607.14(B)(4).

In statistical terms, the difference between predictive and

concurrent validity is simply a matter of timeline. College en-

trance exams like the SAT are examples of predictive studies.

In this model, the SAT is administered to high school stu-

dents, the students who took the SAT attend college, and then

their college GPAs are examined. If there is a significant cor-

relation between the students’ SAT scores and their college

GPAs, the SAT test is considered valid. In this sense, the SAT

scores are tested against the valid college GPAs.

14 Nos. 14-3783 & 15-2030

Here, Gebhardt chose to conduct a concurrent validity

study when she tested Chicago’s volunteer paramedics and

created a physical entrance exam. In a concurrent study, the

researcher takes two measures at the same time. The re-

searcher then uses one measure (which is known to be valid)

to validate the other measure (which needs to be validated).

First, Gebhardt measured the volunteers’ physical skills

by having them perform physical skills that she determined

were necessary to the paramedic job: a modified stair-climb,

leg lifts, arm-strength tests, and other tests. Gebhardt’s volun-

teer paramedics had higher scores than the scores of other

paramedics in both public-sector and private-sector jobs. The

men in her study could handle an average of 281.9 pounds in

leg-lift tests, for example, while the men in a study of several

hundred paramedics could handle an average of 245.11

pounds in leg-lift tests. Gebhardt stated that this disparity be-

tween volunteers in her study and volunteers in other studies

was “especially” true between the tested female paramedics.

In an effort to soften the Chicago paramedics’ unusually high

scores, Gebhardt added scores from another physical test of

New York City paramedics. She only used the New York City

data, however, when setting a passing score. She did not use

it to validate the Chicago study.

Second, Gebhardt also created a rating instrument that she

distributed to the volunteers’ supervisors and peers. Because

these volunteers were incumbent Chicago paramedics, she

could obtain on-the-job assessments of these volunteers’ abil-

ities from supervisors and peers who also worked in the Chi-

cago Fire Department. On their own, these ratings would be

a valid assessment of the volunteers’ job skills. Thus,

Gebhardt could compare these supervisor and peer ratings

Nos. 14-3783 & 15-2030 15

with her skills tests. If the ratings and the test scores yielded

comparable assessments of the volunteer paramedics, then

Gebhardt could conclude that her skills tests were validated.

The job-performance ratings and the skills-testing scores,

however, yielded significantly different assessments of the

volunteer paramedics’ on-the-job abilities. Based on supervi-

sor and peer ratings, female paramedics’ performance was

not far from male paramedics’ performance: the average fe-

male rating was 90% to 93% of the average male rating. If the

skills tests were validated by the job-performance ratings,

they would have yielded similar results, with no great dis-

crepancy between female and male skills scores. But in

Gebhardt’s skills test, women performed far less well than

men. On the leg-lift test, for example, the average female score

was 66.4% of the average male score. This discrepancy would

appear to actually invalidate the physical-skills tests.

Rather than setting aside her original skills tests, and cre-

ating a new set of tests that might better assess paramedic job

skills, Gebhardt provided rationales for setting aside the job-

performance ratings. Gebhardt received ratings for 46 out of

52 volunteer participants. In a study-planning letter to the

Chicago Fire Department, Gebhardt’s company had stated

that a minimum of 110 participants would be necessary to val-

idate this study. Though she had been willing to drop from

110 volunteers to 52, she concluded that she could not go from

52 to 46. Further, when Gebhardt set aside the supervisor and

peer ratings, she replaced them with work-sample scores, as

this opinion will soon explain. But when Gebhardt tested the

reliability of her work samples, she had only 7 volunteers in

the stretcher lift, 17 volunteers in the stair-chair push, and 18

volunteers in the lift and carry. For work samples, she was

16 Nos. 14-3783 & 15-2030

comfortable relying on a far smaller number than 46 volun-

teers. This calls into question whether going down to 46 vol-

unteers, with the supervisor and peer ratings, was really the

problem in the researcher’s mind.

In addition, Gebhardt said that she would have had to

drop the modified stair-climb component of her skills test if

she accepted the supervisor and peer ratings, and women per-

formed better on this stair-climb than on other skills. This cre-

ated the appearance of favoring women, by preserving an as-

pect of the test on which they did well. But because the super-

visor and peer ratings also did not validate other skills tests,

she would also have had to drop skill tests on which women

performed worse than men. The leg-lift, for example, was not

validated by the job-performance ratings. The average female

score on that skills test was 66.4% of the average male score.

Yet Gebhardt ultimately included this skill on Chicago’s en-

trance exam. Thus, though Chicago only claims that Gebhardt

dropped the job-performance ratings in order to preserve

skills testing on which women performed well, the record

conflicts with that narrow version of the facts.

Regardless of the reasons for setting aside the job-perfor-

mance ratings, Gebhardt still needed a concurrent measure to

validate her skills tests. Thus, she compared the results of the

skills tests with the results of her work-sample tests. She de-

signed three work samples with input from the Chicago Fire

Department: a lift and carry, a stair-chair push, and a stretcher

lift. These work samples were intended to reflect skills that

Chicago paramedics learn on the job.

In the lift and carry, a volunteer lifted a piece of equip-

ment, carried it up a set of stairs, put it down, lifted another

piece of equipment, carried that down the stairs, and then put

Nos. 14-3783 & 15-2030 17

that down. This required five timed cycles, with faster times

resulting in better scores. In the stair-chair push, the volunteer

navigated a stair chair over a ramp, with a dummy seated in

the stair chair. Again, faster times resulted in higher scores. In

the stretcher lift, volunteers lifted a stimulated stretcher to an

arm-locked position, held it for 20 seconds, rested for five sec-

onds, and repeated. The stretcher weighed 90 pounds with

the first lift, and 10 pounds was added each time, up to a max-

imum of 220 pounds. This test continued until the volunteer

completed 13 cycles or could no longer lift the stretcher. Vol-

unteers did not receive higher scores for performing this more

quickly. Instead, scores were based on two measures: cycles

completed and weight lifted.

When Gebhardt examined the correlation between the

skills tests and the three work samples, she found that three

of the skills were validated: the modified stair-climb, arm-en-

durance test, and leg lift. 3 The correlation between these three

skills and the three work samples exceeded the .01 level of

statistical significance. This means there was a 99% probabil-

ity that the results would repeat if they were tested again—a

statistically rigorous result that exceeds the .05 level required

by law. See 29 C.F.R. § 607.14(B)(5).

In addition to testing the validity of her study, Gebhardt

tested the reliability of her study. See 29 C.F.R. § 1607.14(C)(5).

An assessment tool is considered reliable if it produces con-

sistent results over time. Gebhardt chose the test-retest relia-

bility approach, in which a researcher administers a test and

then readministers it. If there is a strong correlation between

3 The remaining skills were not validated by the work samples.

Gebhardt set those skills aside.

18 Nos. 14-3783 & 15-2030

the test and retest, the assessment tool is considered reliable.

In technical terms, this process yields what is called a reliabil-

ity coefficient: a number between 0 and 1. If the reliability co-

efficient is 1, there is a perfect correlation between the test and

the retest. This suggests that the assessment tool is highly re-

liable because it produces highly consistent results over time.

Perfectly repeating results, however, are unusual. If the relia-

bility coefficient is 0, there is no correlation between the test

and the retest. This would indicate that the assessment tool is

not reliable at all.

In this case, Gebhardt provided test-retest reliability re-

sults for the lift and carry (measured by seconds), the stair-

chair push (measured by seconds), the stretcher lift (meas-

ured by weight), and the stretcher lift again (measured by cy-

cles completed). For the lift and carry, the reliability coeffi-

cient was a mere 0.503, indicating about a 50/50 chance that

this test is reliable. For the stair-chair push, the reliability co-

efficient was a moderate 0.743. For the stretcher lift as meas-

ured by weight, the reliability coefficient was a robust 0.982.

And for the stretcher lift as measured by cycles, the reliability

coefficient was 0.978, also indicating strong reliability.

Based on this work by Gebhardt, Chicago implemented a

physical entrance exam with three components: the modified

stair-climb, arm-endurance test, and leg lift. The passing score

was set with this formula, which favored the modified stair-

climb on which women did well: (7 · modified stair-climb

score) + (2 · arm-endurance score) + (1 · leg-lift score).

2. An analysis of the validity study

With that technical explanation, we turn to our analysis.

We consider whether the district court was correct in finding

Nos. 14-3783 & 15-2030 19

that Gebhardt’s job analysis and physical-skills study satis-

fied the express federal regulations on validity studies.

In the Title VII context, a validity study examines whether

an employer is using an appropriate selection procedure, like

Chicago’s physical entrance examination, in its hiring pro-

cess. See 29 C.F.R. § 1607.5(B). Federal regulations require that

the validity study must establish specific criteria, which em-

pirically demonstrate that the selection procedure predicts or

significantly correlates with important job-performance ele-

ments. 4 29 C.F.R. § 1607.5(B). In this case, the specific criteria

are the physical skills that Gebhardt tested against work sam-

ples, to see whether the skills could be validated as job-related

skills. She ultimately found three valid.

The technical standards for validity studies are set forth in

29 C.F.R. § 1607.14(B)(4). This section requires that the volun-

teers in a study’s sample population should, as far as possible,

“be representative of the candidates normally available in the

relevant labor market for the job.” 29 C.F.R. § 1607.14(B)(4).

Representativeness is a fact-sensitive inquiry.

Section 1607.14(B)(4) provides two specific guidelines for

determining whether a sample population is representative. 5

4 These criteria are deemed “relevant to the extent that they represent

critical or important job duties, work behaviors or work outcomes as de-

veloped from the review of job information.” 29 C.F.R. § 1607.5(B)(2). The

possibility of bias must also be considered when choosing and applying

these criteria. 29 C.F.R. § 1607.5(B)(2).

5 These are not the only legal issues that Section 1607.17(B)(4) requires

courts to consider, but we conclude that these are the only issues that ap-

ply in the case before us. Gebhardt added scores from a New York City

paramedic study to the scores from her Chicago paramedic study. If she

used the New York data to help validate the Chicago data, we would be

20 Nos. 14-3783 & 15-2030

First, we must consider whether the individuals in the sample

population (here, the volunteer incumbent paramedics) are

representative of individuals who are normally available in

the Chicago paramedic market. As far as possible, the sample

population should also include the races, sexes, and ethnic

groups normally available in that job market.

Second, in a concurrent validity study like this one, we

must examine whether the test focuses on specific skills or

knowledge that are the “primary” focus of skills or

knowledge that Chicago paramedics learn on the job. 29

C.F.R. § 1607.14(B)(4). We note that Title VII regulations do

not provide for employers to implement a general physical

fitness test. Instead, Title VII regulations look for a physical

skills test. These skills must specifically relate to skills that

Chicago paramedics learn in their jobs. Of course, physical

skills may bear a close relationship to physical fitness, but the

entry exam may not merely examine generalized strength.

With these federal regulations on validity studies, we first

examine whether the volunteer paramedics in Chicago’s

study are representative of individuals who are normally

available in the Chicago job market. See 29 C.F.R.

§ 1607.14(B)(4). The plaintiffs object to the fact that Gebhardt

required to conduct an additional inquiry into questions like whether the

samples are comparable in terms of actual jobs performed. 29 C.F.R.

§ 1607.14(B)(4). There is no indication, however, that she used the New

York data to validate the Chicago study results. Instead, it appears that

she only combined the New York and Chicago data for the purpose of

setting a passing score on the final physical-skills test. And we do not

reach the question of whether Gebhardt set an appropriate passing score.

Thus, we do not conduct additional inquiries into the other issues raised

by Section 1607.17(B)(4), such as actual jobs performed in New York.

Nos. 14-3783 & 15-2030 21

asked existing Chicago paramedics to volunteer, rather than

randomly selecting study participants. This self-selection pre-

sents an obvious concern: when an employer asks its employ-

ees to volunteer for testing, the strongest employees are most

likely to volunteer. Any study results may thus be skewed,

instead of representing the general population. Yet as

Gebhardt explained, people cannot be forced into studies. 6

There are ways to see that, even with volunteer participants,

a study offers legitimate insights into the general population.

On its own, the fact that Gebhardt worked with volunteers is

not a basis for setting aside her study results.

By Gebhardt’s own testimony, however, these volunteer

paramedics did not represent the skill-set in the general pop-

ulation of Chicago paramedics. Gebhardt testified that the

Chicago volunteers performed better than public-sector and

private-sector paramedics normally perform. In her formal re-

6 The researcher’s method of selecting volunteers will have significant

implications for how representative a sample population is, and the record

does not address how Gebhardt’s volunteers were chosen, but human par-

ticipants must be willing participants in any event. This is a principle to

which the sciences, social and otherwise, have hewn closely since the Bel-

mont Report was issued in 1979. The Belmont Report was largely a re-

sponse to reports that people were abused in biomedical experiments dur-

ing the Second World War. It established three major principles for stud-

ying humans: respect for persons (protecting individual autonomy), be-

neficence (promoting individual wellbeing), and justice (rendering what

individuals deserve). Under these guidelines, when a person participating

in a study is capable of giving informed consent, the scientist conducting

the experiment should not proceed without it. See Nat’l Comm’n for the

Protection of Human Subjects of Biomedical & Behavioral Research, The

Belmont Report (Apr. 18, 1979), http://www.hhs. gov/ohrp/regulations-

and-policy/belmont-report/index.html#xbasic.

22 Nos. 14-3783 & 15-2030

port on this study, Gebhardt forthrightly stated that “the Chi-

cago EMS personnel were found to be above average. This

was especially true for the women.”

Because she was concerned that the results of her Chicago

study might not be representative, she combined her data on

52 Chicago paramedics with a comparable data-set on 87 New

York City paramedics. As Gebhardt’s study report stated, and

Chicago affirms in its brief, she did this “[t]o avoid artificially

inflating the passing score.” Appellee Br. at 10. In other

words, the New York paramedics presumably had lower

scores than the Chicago paramedics, which helped draw the

average score toward a more normal performance level. For

the combined Chicago and New York City scores to result in

a truly normal or average score, however, the New York City

paramedics’ scores would have to be significantly lower than

normal. There is no evidence—nor would we expect—that the

New York City paramedics perform at a lower skill level than

paramedics who are “normally available in the [Chicago] la-

bor market.” 29 C.F.R. § 607.14(B)(4).

With 52 Chicago paramedics and 87 New York City para-

medics, Gebhardt had a total sample population of 139 para-

medics. And with this small sample size, the 52 Chicago par-

amedics constituted 37% of the total sample population.

About four in ten paramedics, in the overall sample popula-

tion, were still from Chicago. This is still a sufficiently high

percentage for Chicago paramedics to pull up the average

scores and skew the overall results. Chicago does not explain

why it believes that, by adding 87 New York scores, the prob-

lem of abnormally high scores was resolved. Perhaps this is a

problem that could be resolved by comparing the combined

Chicago and New York results with the studies that Gebhardt

Nos. 14-3783 & 15-2030 23

considered, when she concluded that the Chicago volunteer

paramedics had abnormally high scores, and showing that

the combined results are comparable. But the record does not

indicate that even the combined sample population repre-

sents the general paramedic population.

Second, because this is a concurrent validity study, 29

C.F.R. § 1607.14(B)(4) requires us to examine whether the test

focuses on primary skills learned on the job. In this case, the

entrance exam tests three skills: the modified stair-climb, arm

endurance, and leg lift. These skills were validated by corre-

lating each skill with all three work samples: the lift and carry,

stair-chair push, and stretcher lift. There is a statistically sig-

nificant correlation between these physical skills and these

work samples. In this, the study is fine.

On the issue of reliability, however, the lift and carry poses

a problem: its reliability score is only 0.503. That is a 50/50

chance of reliability. Federal regulations direct that reliability,

in validity studies like this one, “should be a matter of concern

to the user.” 29 C.F.R. § 1607.14(5). This is particularly true

when the reliability of this lift and carry is equivalent to the

proverbial coin toss: heads, it is reliable; tails, it isn’t. Further,

there was no apparent effort to separate the lift and carry from

the rest of the study. Because each of the three skills (modified

stair-climb, arm endurance, and leg lift) was validated by cor-

relating it against all three work samples (lift and carry, stair-

chair push, and stretcher lift), the unreliability of this lift and

carry undermines all three skills that Chicago tests in its phys-

ical entrance exam. “All tests must be statistically examined

for evidence of reliability before the test developer can estab-

lish the validity of the test.” Gillespie v. Wisconsin, 771 F.2d

1035, 1041 (7th Cir. 1985). Given the lack of reliability in her

24 Nos. 14-3783 & 15-2030

study, the test developer in this case cannot establish the va-

lidity of her study.

Even if reliability was fully established in this case, valid-

ity would be a problem. The plaintiffs legitimately question

whether the work samples themselves are a valid measure of

job skills. The problem here is that Chicago used the work-

sample tests to validate the skills tests—without ever validat-

ing the work samples. As a result, we cannot conclude that

these work samples reflect “the primary focus of” paramedic

skills learned on the job. 29 C.F.R. § 1607.14(B)(4).

Chicago “would have this court find job-relatedness on

the basis of a high correlation between the results of two sep-

arate testing practices, neither of which by itself has been val-

idated according to accepted methods. We cannot accept this

flawed argument.” Guardians Ass’n of N.Y.C. Police Dep’t, Inc.

v. Civil Serv. Comm’n of the City of New York, 633 F.2d 232, 244

(2d Cir. 1980). In this case, Chicago created a skills test and a

work-sample test, found a strong correlation between the

skills test and the work-sample test, and thus concluded that

the skills test is a good measure of job-related skills. As the

plaintiffs argue, this is a statistical form of self-affirmation.

There is no evidence that the work-sample test, which Chi-

cago used to validate the skills test, is a proper validation of

job skills. On the contrary, we question whether the work

samples actually test the skills that Chicago paramedics learn

on the job, as expressly required by the language of Section

1607.14(B)(4).

Gebhardt surveyed Chicago paramedics about on-the-job

situations when creating her study. Paramedics indicated

that, when getting to patients, they carry equipment between

10 and 100 feet about 73% of the time. If they carry equipment

Nos. 14-3783 & 15-2030 25

upstairs, they climb one or two floors about half the time, and

climb three or four floors about a third of the time.

Paramedics reported that their patients weighed less than

150 pounds about 24% of the time. Patients weighed 160 to

200 pounds about 40% of the time; 210 to 250 pounds about

another 22% of the time; and 260 or more pounds about 14%

of the time. Chicago paramedics further reported that, if a pa-

tient had to be carried on paramedic equipment, the distance

traveled was less than 100 feet about 80% of the time.

Gebhardt also found that, when patients were moved into

ambulances, they were in wheeled stretchers about 27% of the

time and in stair chairs about 68% of the time. On the record,

the use of stair chairs in Chicago appears limited. According

to Gebhardt’s findings, stair chairs are used for transporting

patients into ambulances, usually through the side door. She

did not indicate that they were ever used past this point. Ac-

cording to the plaintiffs’ evidence at trial, “they don’t have

ramps at [Chicago] hospitals, and you never push a person

into a hospital on a stair chair.” See Dist. Ct. Docket 554-4 at

665; see also Dist. Ct. Docket 557-1 at 226 (“stair chairs are not

to be used to transport patients from the ambulance to the

hospital under the relevant EMS System Policies and Proce-

dures” and “[p]atients need to be on the stretcher or some-

times secured on the ambulance bench”).

Given these actual on-the-job skills, it is difficult to see

how all three work samples test job-related skills, much less

skills that are a “primary” focus of skills that Chicago para-

medics learn on the job. See 29 C.F.R. § 1607.14(B)(4). We ad-

dress the work samples in turn, by comparing the work-sam-

ple skills with the skills that paramedics actually use.

26 Nos. 14-3783 & 15-2030

To begin with, the lift and carry seems reasonably job- re-

lated: it tests paramedics’ ability to carry equipment up and

down stairs. The plaintiffs object to the timed nature of this

test. In the context of disparate-impact litigation, the Eighth

Circuit has cast doubt on the value of timed physical-skills

testing. As it said, “where hiring is contingent upon test per-

formance, applicants tend to work as fast as possible during

the test in order to outperform the competition.” E.E.O.C. v.

Dial Corp., 469 F.3d 735, 739, 742–43 (8th Cir. 2006). And as

Gebhardt’s own study report recognized, “physical test cutoff

scores should be set at the minimum acceptable level,” not at

the maximum level, because the goal is to identify people

with sufficient physical skills. Further, faster performance is

not always the most careful performance. We can see where

some speed, though not excessive speed, may be job-related

for paramedics who answer time-sensitive emergency calls.

But in staying faithful to the record, we do not have the infor-

mation necessary to analyze and reach a conclusion on the ap-

propriateness of this timed test. Regardless of how appropri-

ate it was to time the lift and carry, this work sample did not

prove reliable. And an unreliable assessment tool cannot be

validated. Gillespie, 771 F.2d at 1041.

Next, the stair-chair work sample focuses on pushing a

stair chair through a course and over a ramp. The plaintiffs

also object to the timed nature of this test, but again, we lack

the information needed to reach a conclusion on timing. We

do recognize that stair chairs are, as their name suggests, de-

signed to be carried up and down stairwells. The record indi-

cates that there are no ramps leading into Chicago hospitals.

Even if there were ramps, Chicago paramedics may not

transport patients into hospitals using stair chairs. The record

does not indicate that the stair chairs in the work sample were

Nos. 14-3783 & 15-2030 27

transported for the same distances as stair chairs in real para-

medic situations, which casts doubt on this work sample, too.

We do not conclude, however, that the stair-chair work sam-

ple is necessarily unrelated to on-the-job skills.

Moving to the final work sample, we must conclude that

the stretcher lift does not resemble skills learned on the job.

Real paramedics raise a stretcher and then move. We question

why paramedics in the work sample have their arms

“locked.” Regardless, when paramedics transport a real pa-

tient, they do not cycle the patient-laden stretcher up and

down, and the record shows that they typically travel less

than 100 feet. It is hard to imagine paramedics requiring

nearly four-and-a-half minutes to cross 100 feet. Yet the rec-

ord indicates that paramedics in the stretcher-lift sample had

a different task: they had to complete 13 cycles up and down,

which requires a total of 4 minutes and 20 seconds to com-

plete, even with rest times omitted.

Further, stretchers are usually carried by at least two par-

amedics and/or wheeled, while the stretcher-lift work sample

requires one paramedic to carry all the weight alone. At the

beginning of the stretcher-lift work sample, paramedics are

lifting 90 pounds alone. This is the equivalent of carrying a

180-pound patient in tandem. By the end of this lift work sam-

ple, the paramedic is lifting 220 pounds alone. This is the

equivalent of carrying a 440-pound patient in tandem, imme-

diately after carrying 12 other patients who were increasingly

heavy. There may be situations when paramedics transport

more than a dozen patients in rapid succession, where most

of the patients are atypically heavy individuals, but this is not

within the scope of “primary” EMS skills. See 29 C.F.R.

28 Nos. 14-3783 & 15-2030

§ 607.14(B)(4). For this work sample, the simulated job skills

and real job skills are different in description.

In comparing the skills that Chicago paramedics learn on

the job with the skills that Gebhardt’s three work samples re-

quire, we must conclude that these are two different sets of

skills. Even if they were the same, the work-sample skills are

more taxing than real on-the-job skills. Gebhardt has test sub-

jects cycling abnormally heavy stretchers up and down for 4

minutes and 20 seconds, for example, even with rest times

omitted. In contrast, paramedics usually transport relatively

lighter stretchers across a distance of 100 feet or less, which

should require substantially less than 4 minutes. And as one

of our sister circuits has affirmed, plaintiffs should prevail on

their disparate-treatment claim when a physical-skills en-

trance exam is “significantly more difficult than the actual job

workers performed at the plant.” Dial, 469 F.3d at 739, 742–43.

The difficulty of these work samples also undermines Chi-

cago’s argument that these work samples represent real skills

that Chicago paramedics learn on the job.

In this case, at least two out of three work samples are not

valid. The validity of the three skills that are tested in Chi-

cago’s entrance examination, however, depends on all three

work samples being valid. This undermines the entire physi-

cal-skills entrance test that Chicago administers.

The physical entrance exam that resulted from this study

of volunteer paramedics risks cementing unfairness into Chi-

cago’s job-application process. Unfairness is defined this way:

when women characteristically obtain lower scores on the

physical entrance exam than men, and the score differences

“are not reflected in differences in a measure of job perfor-

mance,” the entrance exam is unfair. See 29 C.F.R.

Nos. 14-3783 & 15-2030 29

§ 1607.14(B)(8)(a). We recognize that, in itself, there is nothing

unfair about women characteristically obtaining lower physi-

cal-skills scores than men. But the law clearly requires that

this difference in score must correlate with a difference in job

performance.

To guard against this unfairness, the law requires that the

physical exam must validly test job-related skills. We recog-

nize that, if men and women have adequate physical skills to-

gether, patients can benefit from coed paramedic teams. The

minimum requirement is adequacy, not superiority. See Lan-

ning v. Se. Pa. Transp. Auth., 308 F.3d 286, 287 (3d Cir. 2002)

(affirming that, in a disparate-impact claim, “a discriminatory

cutoff score on an entry level employment examination must

be shown to measure the minimum qualifications necessary

for successful performance of the job”). Perhaps mixed-gen-

der teams could offer patients a more diverse combination of

physical and psychological care than single-gender teams. A

female paramedic might fit into a space where a male para-

medic does not; a female victim might be helped by having a

female paramedic on the team. And in this case, the validated

testing of job-related skills simply is not there: it is not enough

to show a strong correlation between two tests that Chicago

created concurrently. To validate the other test, at least one

test must itself be a valid measure of job skills.

Accordingly, on this detailed review of the record, we con-

clude that there is clear error in the factual conclusions

reached below. Under the federal requirements for validity

studies articulated in 29 C.F.R. § 1607.14(B)(4), clear problems

arise with the job analysis, the reliability of this validity study,

and the validation of Chicago’s validity study. Chicago failed

30 Nos. 14-3783 & 15-2030

to establish that its physical-skills entrance test reflects “‘im-

portant elements of job performance.’” Dial, 469 F.3d at 743

(quoting 29 C.F.R. § 607.5(B)). And this lack of connection be-

tween real job skills and tested job skills is, in the end, fatal to

Chicago’s case. Thus, the plaintiffs should have prevailed on

their Title VII disparate-impact claims. 7

C. Disparate Treatment and Impact: Evidentiary Rulings

Finally, the defendants object to evidentiary rulings made

below. We address these briefly, bearing in mind that the

standard of review for evidentiary rulings is abuse of discre-

tion, and we affirm the evidentiary rulings appealed here. See

Bradley v. Work, 154 F.3d 704, 708–09 (7th Cir. 1998).

First, during the disparate-treatment trial, the district

court admitted handwritten committee notes under the busi-

ness-records exception. These notes were written by Deputy

Fire Commissioner Derrick Jackson during a Chicago Fire De-

partment committee discussion about physical injuries that

Chicago’s paramedics sustained on the job. First Deputy

Commissioner Charles Stewart authenticated the handwrit-

ing as Jackson’s. He further testified that, as part of its regular

business practices, the Chicago Fire Department maintains

committee-meeting notes like Jackson’s notes.

7 The plaintiffs also challenge the passing score established for this

skills test, by arguing that there is no appropriate statistical basis for set-

ting the cut-off score. Because this particular test is not validated, how-

ever, we do not address the statistics behind the passing score.

Chicago did not carry its burden of proof on the test-validation issue,

so we also do not reach the parties’ arguments regarding less-discrimina-

tory alternatives to the test.

Nos. 14-3783 & 15-2030 31

Meeting minutes properly fall within the business-records

exception. United States v. Borrasi, 639 F.3d 774, 779 (7th Cir.

2011). Federal Rule of Evidence 803(6) requires, among other

things, that these notes must be made during or near the time

of the meeting by someone with knowledge. The notes must

also be maintained in the regular course of business. The dis-

puted evidence satisfies Rule 803’s requirements. The plain-

tiffs rely on United States v. Borrasi, however, where we ex-

cluded evidence of a committee report that was discussed in

committee minutes. See id. at 779–80.

In Borrasi, we concluded that “[t]hose reports and any

statements therefrom are hearsay, as each comprises state-

ments written by [individuals] not testifying before the court

that [a party] wished to introduce for the truth of the matters

asserted.” Id. Borrasi is distinguishable. There, the moving

party sought to admit a report through the committee notes.

Here, Chicago sought to admit evidence of what was dis-

cussed in the committee meeting itself. This was proper.

Though the plaintiffs object to Chicago admitting the evi-

dence through Stewart, saying that Stewart never attended

the meeting in question and could not be cross-examined

about the meeting, Stewart’s role was simply to authenticate

the business-record evidence. If the plaintiffs wished to cross-

examine Jackson, they could have subpoenaed him as a wit-

ness. The district court did not abuse its discretion.

Second, during the disparate-treatment trial, the plaintiffs

sought to admit evidence that Gebhardt had previously en-

gaged in conduct that reduced the number of jobs for which

women qualified. The district court would not let them offer

evidence that Gebhardt’s work adversely affected women. It

32 Nos. 14-3783 & 15-2030

allowed Gebhardt to provide this compelling testimony, how-

ever, regarding the purpose of her entire career:

Question: What is the purpose in your mind of

your entire career with respect to developing and

validating physical abilities tests for physically de-

manding jobs?

Answer: Well, it’s to actually give women a shot

at a physically demanding job. And it occurred

when I first started doing this, I was doing a project

for AT&T. And women wanted to work in what’s

called the outside craft positions. They were work-

ing clerical, and the pay was a lot better for outside

craft….

One of the things I saw was that the women

could do the jobs…. And I also saw in my early

years that employers said: Oh, well we want to get

women into these jobs.

So what happens is they just put them in the

jobs…. the men were like: Oh, it’s nice you’re here.

And then they became resentful of the fact that

some of the women—not all, but some—could not

handle the physical demands….

So what we had was when we started putting in

the physical abilities tests, we found that one, the

women could meet the physical demands and they

were much more accepted by their peer—male

peers when they could actually perform the tasks.

And that was a good thing because in the early

years, they got a bad attitude towards it.

Nos. 14-3783 & 15-2030 33

So to suggest that I would discriminate against

women is absurd because I’ve spent most of my life

trying to make sure that women are successful in

these jobs.

Dist. Ct. Docket 554-9 at 26–27. With the defense offering this

evidence about the purpose of Gebhardt’s “entire career,” the

plaintiffs should also be allowed to offer evidence that rebuts

her testimony. Only permitting evidence on one side of this

equation would be unfairly prejudicial. The plaintiffs do not

provide specific explanations, however, of what they tried to

admit into evidence and why the district court ruled against

them. As a result, the objection is undeveloped and is thus

waived for purposes of the first jury trial.

Third, the plaintiffs sought to admit evidence that the Chi-

cago Fire Department offers more pretest training to its fire-

fighter applicants than its paramedic applicants. Once again,

however, the plaintiffs offer a generalized objection. They do

not claim that the two tests are comparable. Nor do they ex-

plain why the Chicago Fire Department should approach two

tests in the same way. On the face of the matter, it is reasona-

ble for an employer to have different hiring practices for dif-

ferent positions. Again, this objection is undeveloped, and we

find that it is waived for the first jury trial.

The remaining objections appear to be against evidentiary

rulings made during the bench trial on disparate impact. Be-

cause we conclude that the concurrent validity study was not

validated, we do not address these rulings.

34 Nos. 14-3783 & 15-2030

Conclusion

The disparate-treatment claims are REMANDED for a new

trial, with directions to read the original version of Jury In-

struction 24. The disparate-impact trial verdict is REVERSED,

with instructions to enter judgment in the plaintiffs’ favor. Fi-

nally, the evidentiary rulings below are AFFIRMED.