# Catherine Erdman v. City of Madison

> Court of Appeals for the Seventh Circuit · January 22, 2024 · 91 F.4th 465

URL: https://www.frixlaw.com/law-library/cases/9925673

## Case

- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** January 22, 2024
- **Citations:** 91 F.4th 465
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9925673

## Opinion text

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2433
CATHERINE ERDMAN,
Plaintiff-Appellant,
v.

CITY OF MADISON,
Defendant-Appellee.
____________________

Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:16-cv-00786-wmc — William M. Conley, Judge.
____________________

ARGUED SEPTEMBER 14, 2023 — DECIDED JANUARY 22, 2024
____________________

Before ROVNER, HAMILTON, and BRENNAN, Circuit Judges.
HAMILTON, Circuit Judge. Title VII of the Civil Rights Act
of 1964 prohibits sex discrimination in hiring, but it allows the
use of selection criteria that are tied sufficiently to the actual
job demands even if those criteria may have disparate impacts
on women and men. See 42 U.S.C. § 2000e–2(h) & (k). Fighting
fires is one of the most physically demanding jobs around.
Tests of physical abilities for firefighters have been the subject
of both study and Title VII litigation. This case is an example.
2 No. 22-2433

Plaintiff Catherine Erdman applied to work as a firefighter
for the city of Madison, Wisconsin. She was eliminated from
the fire department’s 2014 recruitment class after failing to
achieve a minimum qualifying score in the final event of the
department’s Physical Abilities Test (which we call “the Mad-
ison test”). Erdman filed this civil action against the city
claiming that the Madison test has a disparate impact on
women in violation of Title VII. After a bench trial, the district
court found that Erdman had failed to prove her claim that
the department’s physical abilities test violated Title VII. Erd-
man v. City of Madison, 615 F. Supp. 3d 889 (W.D. Wis. 2022).
The district court found that Erdman had shown the
Madison test had a prima facie disparate impact on women.
The court also found, however, that the Madison test was job-
related and served the city’s legitimate needs. The court also
found that Erdman had failed to prove that her proposed
alternative hiring practice would serve the city’s legitimate
needs. The use of the Madison physical abilities test to
disqualify Erdman thus did not violate Title VII. We affirm.
I. Factual And Procedural Background
A. The Madison Fire Department’s Hiring
The Madison fire department employs approximately 365
firefighters. The department uses a formal recruitment pro-
cess to hire new firefighters. The hiring process consists of five
stages: (1) an application screening for minimum qualifica-
tions; (2) a written test; (3) a physical abilities test; (4) an oral
examination before a panel of examiners; and (5) an interview
with the chief.
Plaintiff Catherine Erdman has been a firefighter for the
city of Janesville, Wisconsin, since 2007. She applied for a
No. 22-2433 3

position with the Madison fire department in the 2014 hiring
process but did not pass the Madison physical abilities test.
She alleges that the Madison physical abilities test caused the
city to discriminate against her on the basis of sex.
A total of 1,887 applicants participated in the 2014 hiring
process. Of these, 1,723 were men, 146 were women, and 18
were not clearly identified in records by gender. Four hun-
dred and ninety-nine applicants appeared to take the Madi-
son physical ability test — 471 men and 28 women. Of these,
404 applicants — 395 men, four women, and five not clearly
identified — successfully completed the test. Ultimately that
year, the department hired all four women who passed the
Madison test, as well as thirteen men. Overall in 2014, 14 % of
Madison firefighters were women. In 2018, 10.8% were
women. Both numbers were well above the national average
of about 4% female firefighters.
1. The 2014 Madison Physical Abilities Test
The posting for Madison’s 2014 firefighter recruitment
identified the following physical requirements for working as
a firefighter:
While not an exclusive list, the following exam-
ples are meant to illustrate some of the extreme
physical demands and working conditions in-
herent in the role of a firefighter.
Physical Demands
1. Pick up and advance charged fire hoses.*
2. Force entry with axe/battering ram.*
3. Rescue/extricate victim(s).*
4. Perform CPR; apply bandages.
4 No. 22-2433

5. Climb stairs carrying heavy equipment,
while wearing firefighter protective clothing
that weighs in excess of 50 pounds.*
6. Strip and vent roofs, breach walls, overhaul
burned buildings.*
7. Lift and climb/descend ladders (with vic-
tims).*
8. Visually determine fire status/hazards; as-
sess patient conditions.
9. Hear calls for help; identify fire noise, etc.
10. Walk on roof tops under adverse conditions.
11. Operate power tools and extrication equip-
ment; tie knots.
12. Stoop, crawl, crouch, and kneel in confined
spaces.*
13. Reach, twist, balance, grapple, bend and lift
under emergency conditions.
14. Run, dodge, jump and maneuver with
equipment.*
15. All of the above may be performed wearing
heavy and restrictive protective cloth-
ing/gear in excess of 50 pounds.*
Each task marked by an asterisk was assessed in the 2014
Madison test. That test consisted of seven events: (1) equip-
ment shuttle; (2) ladder event; (3) hose drag; (4) sledgeham-
mer event; (5) search; (6) rescue; and (7) pike pole.
The seven events had to be completed in order, but they
were timed and scored separately. To explain the issues on
No. 22-2433 5

appeal, we must explain scoring for the test. Each event was
assigned both a so-called “cut score” and a lower “minimally
acceptable score.” To pass the test, the applicant had to
achieve the higher “cut score” in at least five of the seven
events. To pass the entire test, the applicant also had to
achieve at least the minimally acceptable score in each of the
seven events.
2. Erdman’s Application History
Erdman entered firefighting first as a volunteer in
Poynette, Wisconsin, and then, in 2007, as a full-time fire-
fighter in Janesville, Wisconsin. At Janesville, in a 90-person
fire department, she was promoted several times. After being
nominated by her peers and chosen by the fire chief, she re-
ceived the Janesville Firefighter of the Year award in 2014. At
the time of the trial in 2018, she had been deployed to about
230 fires, about 60 to 65 of which were structure fires.
Erdman has applied for a position with the Madison fire
department in every hiring cycle since 2006. She failed the
written examination on five occasions, in 2006, 2008, 2010,
2012, and 2018. During the 2014 cycle, Erdman passed the
written examination and proceeded to the next step, the Mad-
ison physical abilities test.
Erdman met the cut score and received points for five of
the seven events: equipment shuttle, hose drag, sledgeham-
mer event, search, and rescue. While Erdman did not meet the
cut score for the ladder event, she nevertheless attained the
minimum acceptable score required to avoid disqualification.
Whether she passed or failed the entire test came down to the
final event, the pike pole test. In this event, the applicant must
use a pole with a hook on it first to simulate breaching a
6 No. 22-2433

ceiling from below to look for hidden flames, and then pulling
down ceiling material.
The minimum acceptable score for that event was 16 rep-
etitions in the time allowed. Erdman completed only 12 repe-
titions. That score eliminated her from the 2014 hiring pro-
cess. If she had met the pike pole event’s minimally acceptable
score of 16, she would have passed the entire test and moved
on to the next stage in the hiring process.
3. The Alternative: The IAFF Candidate Physical Abilities
Test
Erdman contends that a different physical abilities test
would have had less disparate impact on female applicants
but would have sufficiently served the city’s purpose in test-
ing applicants’ physical abilities to work as firefighters. As her
alternative, Erdman proposes the Candidate Physical Abili-
ties Test. It is licensed by the International Association of Fire
Fighters (IAFF) and used as a screening tool for many fire de-
partments across the nation. The test was developed in con-
junction with ten fire departments in North America, includ-
ing New York City, Indianapolis, and Austin, Texas.
The district court heard detailed evidence on the similari-
ties and differences between the Madison test and the IAFF
test. The IAFF test contains eight component parts, seven of
which are identical or similar to events in the Madison test.
Differences include the method of timing each test. The
IAFF test requires applicants to complete all events within a
designated total time but does not put a time limit on individ-
ual events. The Madison test times each event separately. The
IAFF test also allows candidates several chances to pass the
test. A candidate may take the test up to three times, and he
No. 22-2433 7

or she must pass only once. In the Madison recruiting process,
each applicant has only one chance to pass the Madison phys-
ical ability test. 1
Another difference involves the pike pole event that dis-
qualified Erdman in 2014. In the IAFF test, as an applicant
performs the “pull” portion of the test, she is allowed to stand
directly under the point where she has hooked her pole. In the
Madison test, applicants can stand directly under the hook
point to push up, but they must move 18 inches back when
completing the “pull” portion of the test.
Since at least 2013, the Madison fire department has been
aware of the IAFF test, considered it, and decided to continue
using its own test. The district court found that the IAFF test
has less of a disparate impact on women than the Madison
test. On appeal, the city does not challenge that finding, at
least as applied to the entire test. But the district court agreed
with the city that the IAFF test would not adequately serve
the legitimate needs of Madison’s fire department. For in-
stance, the city argued that if the department had offered the

1 As a result of a 2006 conciliation agreement between the Equal Em-

ployment Opportunity Commission and the International Association of
Firefighters, takers of the IAFF test are also afforded practice sessions in
the weeks before the test that offer candidates hands-on experience with
testing equipment under the guidance of trainers who coach candidates
on how to successfully complete the component tasks of the test. To the
extent that one’s success with a task-oriented physical abilities test like the
Madison test or IAFF test depends on technique as well as physical
strength, these practice sessions provide a concrete benefit to any candi-
date, male or female. But Erdman’s expert witness, Professor Arthur Welt-
man, was unaware of any study documenting that female candidates ben-
efit more from pre-testing practice and training than do their male coun-
terparts. R. 67 at 27–28.
8 No. 22-2433

IAFF test’s required training to the nearly 500 applicants who
performed the Madison test in 2014, it would have resulted in
significant cost and overtime expense. The district court also
agreed with the city that, unlike the IAFF test, “certain ele-
ments of the [Madison test] were designed specifically for
Madison, in light of characteristics of the city, the Depart-
ment’s equipment or other considerations, including safety.”
B. Procedural History
After discovery, both sides moved for summary judg-
ment. The district court granted summary judgment to the
city on one issue raised on appeal, Erdman’s ability to recover
back pay and front pay, but we need not reach that issue. The
district court denied summary judgment on the remaining is-
sues presented in this appeal, and the parties proceeded to
trial.
After a bench trial, the district court found that Erdman
had failed to prove that the Madison test had a disparate im-
pact on female applicants in violation of Title VII. The court
found that the Madison test created a prima facie disparate
impact on women. Erdman’s claim failed, however, because
she did not show that her proposed alternative hiring prac-
tice, the IAFF test, would serve the department’s legitimate
needs as well as the Madison test.
II. Discussion
After a district court makes findings of fact and conclu-
sions of law after a bench trial, we review legal conclusions de
novo and factual findings for clear error. Fed. R. Civ. P. 52(a);
Simon v. Cooperative Educational Service Agency #5, 46 F.4th 602,
606 (7th Cir. 2022), quoting Murdock & Sons Construction, Inc.
v. Goheen General Construction, Inc., 461 F.3d 837, 840 (7th Cir.
No. 22-2433 9

2006). On clear-error review, a finding of fact is reversed “only
when the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been com-
mitted.” Coleman v. Comm’r of Internal Revenue, 16 F.3d 821, 826
(7th Cir. 1994), quoting Anderson v. City of Bessemer City, 470
U.S. 564, 573 (1985). For mixed questions of law and fact, our
standard of review depends on whether the inquiry “entails
primarily legal or factual work.” U.S. Bank N.A. v. Village at
Lakeridge, LLC, 583 U.S. 387, 396 (2018). We discuss the appli-
cable standards of review in more detail as we apply them to
the district court’s findings and conclusions and the parties’
arguments on appeal.
A. Title VII’s Burden-Shifting Framework for Disparate
Impact in Hiring Practices
Title VII prohibits hiring practices that have a dispropor-
tionate adverse impact on job applicants with protected char-
acteristics such as sex or race, even in the absence of discrim-
inatory intent. Ernst v. City of Chicago, 837 F.3d 788, 794 (7th
Cir. 2016) (speaking in terms of “employees” but also apply-
ing statute to applicants); see 42 U.S.C. § 2000e–2(a)(2); Griggs
v. Duke Power Co., 401 U.S. 424 (1971) (“individual” applies to
applicants who assert disparate impact in hiring).
To prove disparate impact, a plaintiff must show that a
particular hiring practice had an adverse impact on applicants
with a protected characteristic, such as sex. § 2000e–
2(k)(1)(A)(i); Ernst, 837 F.3d at 796. As part of the prima facie
case, the plaintiff-applicant must also show that the chal-
lenged hiring practice causes the discriminatory impact, typ-
ically by offering “statistical evidence … sufficient to show
that the practice in question has caused the exclusion of ap-
plicants … because of their membership in a protected
10 No. 22-2433

group.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994
(1988).
If a job applicant makes a prima facie showing of disparate
impact, an employer can defend by showing that: (1) the chal-
lenged practice does not cause the disparate impact, § 2000e–
2(k)(B)(ii); or (2) the practice is job-related for the position and
consistent with business necessity. § 2000e–2(k)(1)(A)(i); see
generally Griggs, 401 U.S. at 431 (explaining disparate impact
test). If the employer can show that the practice is job-related
for the position and consistent with business necessity, the
burden shifts back to the applicant to prove that the employer
refuses to adopt an alternative hiring practice that would re-
sult in less disparate impact and still serve the employer’s le-
gitimate needs. § 2000e–2(k)(1)(A)(ii) & (C); Ernst, 837 F.3d at
794.
Erdman relies on this three-step burden-shifting frame-
work. After a bench trial, the district court found at step one
that Erdman had established her prima facie case that the
Madison test has a disparate impact on women. The court
found at the second step that the city showed the Madison test
was job-related and consistent with business necessity. At the
third step, Erdman needed to prove that the city refused to
adopt an alternative hiring practice (in this case, the IAFF test)
that would have less disparate impact and still serve the city’s
legitimate needs. The district court found that while the IAFF
test had less disparate impact on women, Erdman failed to
prove that it would serve the city’s legitimate needs as well as
the Madison test.
On appeal, the city contests the district court’s finding that
Erdman proved her prima facie case of disparate impact. Erd-
man challenges the district court’s finding that the IAFF test
No. 22-2433 11

fails to serve adequately the fire department’s legitimate
needs. We consider each issue in turn.
B. Prima Facie Case of Disparate Impact
We begin at the first step, Erdman’s prima facie case of
disparate impact. Although we affirm at the third step, we
start with the first because all three steps of Title VII’s burden-
shifting framework are logically intertwined. The parties
dispute whether the proper unit of analysis for the prima facie
disparate impact is the entire Madison test or just the
particular event that disqualified Erdman, the pike pole event.
The answer determines the scope of the practice the city had
to justify at the second step and the alternative hiring practice
Erdman needed to offer at the third step.
At step one in a disparate impact case, the applicant must
show that the employer “uses a particular employment prac-
tice that causes a disparate impact” on an impermissible basis.
§ 2000e–2(k)(1)(A)(i); see Ernst, 837 F.3d at 796. Erdman as-
serts that the Madison test in its entirety has an illegal dispar-
ate impact on female applicants. The city argues that the anal-
ysis must focus more narrowly, on only the specific part of the
Madison test that disqualified plaintiff. Of the seven women
who reached the pike pole event in the 2014 Madison test, six
passed; only Erdman was disqualified. Seeing no proof of dis-
parate impact specific to just the pike pole event, the city ar-
gues that Erdman has not made her prima facie showing.
The city concedes on appeal that the Madison test as a
whole shows a statistically significant disparate impact on fe-
male applicants. In 2014, the pass rate for women who ap-
peared to take the test was 14% (4 out of 28), while the pass
rate for men who appeared to take the test was 84% (395/471).
12 No. 22-2433

The disqualification rate for women who appeared to take the
test and did not quit (20/25) was more than seven times the
disqualification rate of men who appeared to take the test and
did not quit (49/458). Whether the “particular employment
practice” at issue is the entire Madison physical abilities test
or just the pike pole event will resolve the issue of Erdman’s
prima facie case. The district court held that the entire Madi-
son test was the proper unit of analysis. We agree.
1. The City’s Procedural Problem
On appeal, the city has framed this issue as a challenge to
the district court’s denial of summary judgment, not the find-
ings after trial. That’s a problem. Denial of summary judg-
ment “is an interlocutory matter subsumed by a final judg-
ment. … After trial, the summary judgment denial is ancient
history and not subject to appeal.” Empress Casino Joliet Corp.
v. Balmoral Racing Club, Inc., 831 F.3d 815, 823–24 (7th Cir.
2016). The Supreme Court has recently recognized an excep-
tion for pure issues of law, Dupree v. Younger, 598 U.S. 729,
735–36 (2023), but the prima facie case presents a mixed ques-
tion of law and fact. We can review a denial of summary judg-
ment on a mixed question only if the party appealing the de-
nial filed motions for judgment as a matter of law and re-
newed judgment as a matter of law after trial. Empress Casino,
831 F.3d at 823, citing Ortiz v. Jordan, 562 U.S. 180, 189–90
(2011).
Here, the city did not file either motion, abandoning its
path to challenge as of right the district court’s final judgment
on this prima facie issue. Given the lack of any reference to
Dupree or the final-order doctrine in the city’s brief, this seems
to have been at least initially an inadvertent forfeiture by the
city. At oral argument, the city defended its choice to
No. 22-2433 13

challenge the district court’s denial of summary judgment un-
der Dupree as an appeal of a pure legal issue, making the city’s
actions seem more akin to waiver.
Whether the issue was waived or forfeited, however, a fea-
ture of this case leads us to reach the merits of the challenge.
As we recently explained, “[w]hether a waived issue can be
addressed ‘is one left primarily to the discretion of the courts
of appeals, to be exercised on the facts of individual cases.’”
Walker v. Baldwin, 74 F.4th 878, 883 (7th Cir. 2023), quoting Sin-
gleton v. Wulff, 428 U.S. 106, 121 (1976). “[T]he refusal to con-
sider arguments not raised is a sound prudential practice, ra-
ther than a statutory or constitutional mandate, and there are
times when prudence dictates the contrary.” Davis v. United
States, 512 U.S. 452, 464 (1994) (Scalia, J., concurring). Though
such exercises of discretion are “rare,” see Mahran v. Advocate
Christ Medical Center, 12 F.4th 708, 713 (7th Cir. 2021), in this
case it would be most prudent to address the merits of the
city’s argument on the scope of a “particular employment
practice.”
Doing so here does not contradict the purposes of the
party presentation principle. That principle “ensures that the
opposing party has an opportunity to reflect upon and
respond in writing to the arguments that his adversary is
raising.” Berkman v. Vanihel, 33 F.4th 937, 947 n.45 (7th Cir.
2022). Here, the prima facie case was fully litigated in the
district court, and Erdman could and did address it
adequately (and persuasively) on appeal in her reply brief.
Most important, the proper scope of a “particular
employment practice” is entwined with plaintiff’s burden to
prove an adequate “alternative hiring practice” at the last step
of Title VII’s burden-shifting framework. It would be
14 No. 22-2433

burdensome for these and similarly situated parties to require
them to litigate business justifications and alternative hiring
practices when the proper scope of the case remains in such
doubt. We exercise our discretion to reach the merits of the
prima facie case.
2. The Prima Facie Case for a Disparate Impact
The prima facie case presents a mixed question of law and
fact. Whether the Madison test as a whole or its components
constitute a “particular employment practice” requires the
courts to “interpret[] the legal significance of a unique series”
of physical ability testing events. See § 2000e–2(k)(1)(A)(i);
Straits Financial LLC v. Ten Sleep Cattle Co., 900 F.3d 359, 368
(7th Cir. 2018) (review of mixed questions of law and fact).
The district court’s conclusion that the proper unit of analysis
was the Madison test as a whole was tied closely to the facts
of this case. We apply clear-error review to the case-specific
conclusions while also “taking care not to defer to the district
court’s judgment where it effectively announced new legal
rules that would govern future cases.” Straits Financial, 900
F.3d at 368.
We look first to the district court’s analysis of precedent on
the meaning of a “particular employment practice” in 42
U.S.C. § 2000e–2(k)(1)(A)(i). Because adopting this portion of
the district court’s reasoning would govern future cases and
because our review entails primarily legal work rather than
factual work, we review de novo. See Village at Lakeridge, 583
U.S. at 396. We agree with the district court that nothing in
Watson or any other binding case law requires a plaintiff to
isolate a particular component of a physical ability test or
similar multi-component test as a “particular employment
practice” for a disparate impact claim. See Watson, 487 U.S. at
No. 22-2433 15

994 (“identifying the specific employment practice … has
been relatively easy to do in challenges to standardized
tests”).
As the district court explained, the city’s event-by-event
analysis is not supported by precedent:
[N]either the parties nor this court in its own re-
search could find a case analyzing whether a
“particular employment practice” must be lim-
ited to the particular component of a physical
abilities test or of a similar multi-component
test. [Other] courts evaluating similar cases in-
volving [physical ability tests] appear to have
uniformly considered the entire [test] as an in-
divisible hiring practice. See, e.g., Pietras v. Bd. of
Fire Comm’rs of Farmingville Fire Dist., 180 F.3d
468, 475 (2d Cir. 1999) (comparing pass rate for
women and pass rate for men on [physical abil-
ities test] as a whole); Arndt v. City of Colorado
Springs, 263 F. Supp. 3d 1071, 1075 (D. Colo.
2017) (requirement that all sworn officers pass
[physical abilities test] annually was a specific
employment practice); cf. Ernst, 837 F.3d at 796
(“[P]hysical-skills entrance test has an adverse
impact on women[.]”).
Erdman v. City of Madison, No. 16-cv-786-wmc, 2018 WL
4496308, at *6 (W.D. Wis. Sept. 19, 2018). The parties have not
cited such a case to us, either, nor have we found one in our
own research.
The city argues that Title VII’s text forbids plaintiffs from
focusing on a broader decision-making process if that process
16 No. 22-2433

is composed of discrete parts that are capable of separation.
The city relies on language in § 2000e–2(k)(1)(B)(i): “if the
complaining party can demonstrate to the court that the ele-
ments of a respondent’s decisionmaking process are not capa-
ble of separation for analysis, the decisionmaking process
may be analyzed as one employment practice.” See also Davis
v. Cintas Corp., 717 F.3d 476, 497 (6th Cir. 2013) (plaintiff must
show that hiring system’s “many steps were so intertwined
that they were not capable of separation for analysis”).
The statute’s text tells us that separability is plaintiff’s
burden, but the text does not specify features that render a
decision-making process, in the language of § 2000e–
2(k)(1)(B)(i), “capable of separation.” Davis does not help the
city because the plaintiff in Davis “did not explain why the
well-defined, discrete elements” of that hiring system were
“not capable of separation for analysis.” 717 F.3d at 497.
Because the plaintiff there failed to carry even her burden of
production on separability, the court had no occasion to state
or apply a test for when multiple steps in a hiring process
were “so intertwined that they were not capable of separation
for analysis.” Id.
But here, as the district court noted, Erdman raised strong
legal and factual arguments to support analyzing the entire
Madison test as a singular “hiring practice.” Because the ques-
tion of separability is fact-bound, we review the district
court’s analysis of separability for clear error. We agree with
the district court that plaintiff demonstrated that the Madison
test is not separable for analysis into its discrete elements.
On appeal, the city leans heavily on one district court case
to show that courts can “successfully analyze[ ]” a single com-
ponent of a multi-part physical fitness test. See Easterling v.
No. 22-2433 17

State of Connecticut, 783 F. Supp. 2d. 323 (D. Conn. 2011). The
physical fitness test challenged in Easterling consisted of four
separately timed and scored components: a sit-and-reach test,
a one-minute sit-up test, a one-minute push-up test, and a
timed 1.5-mile run. 783 F. Supp. 2d. at 326. Based on Easter-
ling, the city urges us to adopt as a rule that if subcomponents
of a particular multi-component test are timed or scored sep-
arately, they are capable of separation and must be analyzed
individually for disparate impact.
But as Erdman notes, in Easterling, the plaintiff chose to
challenge only the timed 1.5-mile-run element of a physical
fitness test. In that case, neither party even suggested that the
analysis ought to be conducted at the level of the whole test.
The issue here—whether to separate the physical fitness test’s
different events—was not presented to the court, nor did the
court discuss it.
Even if we treated Easterling as a meaningful holding on
the separability of the multi-part test at issue in that case, that
fitness test was distinct from the Madison test in ways that
weigh against separability here. The employer-defendant in
Easterling said that each element of its test measured distinct,
non-overlapping physical abilities: respectively, (1) “flexibil-
ity of the lower back and upper leg area,” (2) “muscular en-
durance of the abdominal muscles,” (3) “muscular endurance
of the chest, upper arms and shoulders (upper body dynamic
strength),” and (4) “the heart and vascular system’s capability
to transport oxygen (cardiovascular endurance).”
The Madison test, conversely, “focuses on job simulation
activities, rather than traditional exercise-based activities.”
That is, the Madison test does not test distinct physical capa-
bilities, but instead evaluates the sorts of activities firefighters
18 No. 22-2433

might reasonably be expected to do on the job. Accordingly,
it requires participants to use the same muscle groups and el-
ements of physical fitness repeatedly in a short time. One of
plaintiff’s witnesses here, Madison Assistant Chief Popovich,
testified that by the time applicants reach the pike pole test,
“the seventh of seven stations,” they are usually “very, very
exhausted.” That evidence also helped persuade the district
court to deny summary judgment on the issue: the “combined
demands of all of the components of the [Madison test], which
are extremely physical and occur consecutively,” supported
treating the test as a single hiring practice. Erdman, 2018 WL
4496308, *7. After trial the district court stood by this reason-
ing. 615 F. Supp. 3d at 896. It has ample support in the record.
The city’s proposed standard for separating multi-part
hiring tests strikes us as unduly simplistic. It would also tend
to undermine Title VII’s protections from disparate impacts
of hiring tests that are not justified in terms of business neces-
sity. Judge Conley recognized these dangers: “if multiple suc-
cessive components of the PAT are collectively discrimina-
tory, as plaintiff claims they are, she need not demonstrate a
disparate impact as to the last component simply because she
succeeded in overcoming earlier discriminatory compo-
nents.” 2018 WL 4496308, *7. He added, “if an employer uses
a hiring practice that discriminatorily eliminates members of
the protected class at each event level, the employer may not
be shielded from liability because of the smaller sample size
at each successive event level.” Id.
In a multi-part test, it may be that each individual compo-
nent eliminates only a small fraction of a minority group, but
with a cumulative effect that excludes a significant proportion
of minority applicants from employment. The city’s proposed
No. 22-2433 19

standard for separability would encourage, or at least allow,
gamesmanship in structuring multi-element tests to limit the
set of plaintiffs who could bring discrimination challenges. In
cases like this one, where poor performance on one subcom-
ponent can eliminate a candidate before she completes the en-
tire test, plaintiffs will inevitably face smaller sample sizes at
later stages of the test. Requiring plaintiffs to challenge only
the particular sub-component at which they failed could
make it nearly impossible for those challenging late-stage
events to meet their burden of proof even where the overall
effect of the test imposes a heavy disparate impact on one
group compared to another.
The limits of the city’s proposed rule are also unclear. Each
question on a written test, for example, is typically scored sep-
arately, and, as with the Madison test of physical ability, ag-
gregated to produce a total test score. Under the city’s logic,
plaintiffs could be required to bring a disparate impact chal-
lenge only to particular questions they answered incorrectly.
Yet we have often treated an entire written examination as a
“particular employment practice.” See Adams v. City of Chi-
cago, 469 F.3d 609, 610–11, 613 (7th Cir. 2006) (entire written
qualifying examination is “particular employment practice”);
Allen v. City of Chicago, 351 F.3d 306, 309, 312 (7th Cir. 2003)
(same); see also Pouncy v. Prudential Ins. Co. of America, 668
F.2d 795, 800–01 (5th Cir. 1982) (explaining why “disparate
impact analysis may be used to challenge aptitude and intel-
ligence tests” but not “entire range of employment prac-
tices”).
The district court did not plainly err in holding that the
Madison test’s events are not separable for analysis, and con-
sequently, that the proper unit of analysis here was the test as
20 No. 22-2433

a whole. Multi-part physical tests like the Madison fire de-
partment’s test can be challenged as a “particular employ-
ment practice.” They should not be deemed “capable of sepa-
ration” within the meaning of Title VII merely because their
events are scored and timed separately. See § 2000e–
2(k)(1)(B)(i).
The city acknowledges that if the correct unit of analysis is
the entire test, Erdman established her prima facie case of dis-
parate impact. We affirm the district court’s holding that
plaintiff proved her prima facie case of disparate impact.
C. Less Discriminatory Alternative Employment Practice
Erdman concedes that the city carried its second-step bur-
den to prove that the Madison test is “job-related for the po-
sition and consistent with business necessity.” On appeal, she
challenges only the district court’s adverse third-step finding
that the IAFF test is not an “available alternative employment
practice that has less disparate impact and serves the em-
ployer’s legitimate needs.” Ricci v. DeStefano, 557 U.S. 557, 578
(2009), citing 42 U.S.C. § 2000e–2(k)(1)(A)(ii) and (C).
The city, for its part, chose not to dispute the district
court’s finding that the IAFF test has less disparate impact on
female applicants than the Madison test. And at trial, the city
did not dispute the general validity of the IAFF test. The city
built its defense on the theory that the IAFF test does not serve
the department’s unique legitimate needs—that is, the IAFF
test is not locally valid for the Madison fire department.
After trial, the district court found that the IAFF test
would not adequately serve the fire department’s legitimate
needs. Because this is a factual question, we review for clear
error. Simon v. Cooperative Education Service Agency #5, 46 F.4th
No. 22-2433 21

602, 606 (7th Cir. 2022). The district court did not clearly err in
the inferences it made based on the record at trial.
To serve an employer’s “legitimate needs,” an alternative
hiring practice need not be exactly as effective as the allegedly
discriminatory practice. The issue is whether the alternative
practice is “substantially equally valid.” Allen v. City of Chi-
cago, 351 F.3d 306, 312 (7th Cir. 2003), quoting 29 C.F.R.
§ 1607.3(B). A test is substantially equally valid if it “would
also serve the employer’s legitimate interest in efficient and
trustworthy workmanship.” Allen, 351 F.3d at 312, quoting
Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). Under
this standard, an alternative test is “substantially equally
valid” if it “would lead to a workforce [that is] substantially
equally qualified.” Allen, 351 F.3d at 314.
Allen established what amounts to a minimum-
competency test. It is met if the plaintiff can establish by a
preponderance of the evidence that the last person selected by
the alternative approach would be roughly as qualified as the
candidate with the lowest passing score using the current
hiring practice. Allen, 351 F.3d at 313 (“The officers effectively
bear the burden of establishing that the last officer promoted
under an increased merit-based selection process would be
roughly as qualified as the officer with the current lowest
score on the assessment exercise.”); see also Ernst v. City of
Chicago, 837 F.3d at 804 (“[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.”), quoting Lanning v. Southeastern
Pennsylvania Transp. Auth., 308 F.3d 286, 287 (3d Cir. 2002).
The relative effectiveness of the challenged practice and
the proposed alternative in selecting a minimally qualified
22 No. 22-2433

workforce is not the exclusive consideration for whether two
tests are “substantially equally valid.” Allen, 351 F.3d at 312.
Factors such as the cost or other burdens of proposed alterna-
tive selection methods are also relevant in determining
whether they would be substantially as efficient as the chal-
lenged practice in serving the employer's legitimate business
goals. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 998
(1988). The Supreme Court has not offered more specific guid-
ance for such comparisons. We consider the balancing of var-
ious burdens associated with an alternative hiring practice as
a mixed question of fact and law, subject to the standard of
review for mixed questions described above.
The district court’s factual findings on the local validity of
the IAFF test for the Madison fire department were not clearly
erroneous. As the district court noted, “plaintiff bears the bur-
den to prove the [IAFF test] would serve the Madison Fire De-
partment’s legitimate needs.” 615 F. Supp. 3d at 900. The dis-
trict court found that Erdman did not put forth sufficient af-
firmative evidence on this point. She “simply points to the
[IAFF test], assuming that it would fit Madison’s needs with-
out attempting to validate the test locally.” Id. at 899.
Validating the test locally would require at least some
affirmative evidence from Erdman showing that IAFF-test
candidates with the lowest passing scores would be “roughly
as qualified” as those who obtain the lowest passing score on
the Madison test. But to establish this point, Erdman points
primarily to trial testimony by a single defense expert who
was unable to give a reason why the IAFF test may not be
locally valid for the Madison fire department. One expert’s
inability to answer that question is not affirmative evidence to
No. 22-2433 23

meet Erdman’s burden. It certainly does not mean the whole
record would require a finding that she met her burden.
Erdman also relies upon the 2013 revalidation study of the
Madison test, which said in general terms that firefighters’
duties are “largely” the same, or “similar,” across fire depart-
ments. These general observations would not have required
the district court to find that the needs of the Madison fire de-
partment are a sufficiently close match to departments that
use the IAFF test. The district court was not obliged to agree
with Erdman on the IAFF test’s local validity based on her af-
firmative evidence.
Even if Erdman had come forward with stronger affirma-
tive evidence of the IAFF test’s validity as applied to Madison,
the city offered substantial evidence to the contrary. At trial,
the city offered (1) “specific arguments in support of the two
elements that plaintiff asserts are unnecessary as compared to
the [IAFF test’s] alternative elements—the ladder and pike
pole,” and (2) “evidence of numerous burdens associated
with adopting the [IAFF test] as an alternative test.”
The district court credited testimony regarding the time
spent by the city’s personnel and their expert consultants in
developing those two elements of the 2014 Madison test that
differed from the IAFF test. The city provided evidence that
“those elements of the test were specifically designed to rep-
licate the tasks Madison firefighters would be expected to ex-
ecute in light of the equipment available to the Department at
that time and of concerns about safety.”
The district court’s decisions about the effectiveness of and
the intent behind those two events required it to weigh credi-
bility and otherwise to weigh conflicting evidence. Such
24 No. 22-2433

findings call for great deference to the district court. BRC Rub-
ber & Plastics, Inc. v. Continental Carbon Co., 981 F.3d 618, 622
(7th Cir. 2020), quoting Anderson v. City of Bessemer City, 470
U.S. 564, 575 (1985) (“[W]hen a trial judge’s finding is based
on his decision to credit the testimony of one of two or more
witnesses ... that finding, if not internally inconsistent, can vir-
tually never be clear error.”).
As to the ladder event, city witnesses explained why, in
light of the equipment available to the department, a 20-foot
ladder was chosen and why the lifting element challenged by
the plaintiff had been removed after 2014.
For the pike pole test, the city also offered testimony that
the requirement to stand 18 inches away from the ceiling be-
ing pulled down, rather than directly underneath it, reflects
best practices for the safety of firefighters. Plaintiff did not
show that these design differences were ineffective or merely
pretextual. The district court’s finding that the IAFF test’s dif-
ferent version of these two events fails to serve the city’s legit-
imate needs is plausible in light of the entire record.
We addressed above the plausible basis in the record for
the district court’s findings that “certain elements of the
[Madison test] were designed specifically for Madison, in
light of characteristics of the city, the Department’s equip-
ment or other considerations, including safety.” 615 F. Supp.
3d at 900. Other evidence indicated that the Madison test is “a
good predictor of outcome historically, as defined by a high
passage rate out of the [fire training] academy.” Id. Chief Da-
vis testified for the city that “very few people wash out be-
cause of physical ability.”
No. 22-2433 25

The evidence also permits an inference that the Madison
test does a better job than the IAFF test at screening out
applicants who are likely to wash out at later stages in the
training process. Other fire departments have lower rates for
hiring and retaining female firefighters (presumably using the
IAFF test or others). Madison has a higher-than-average rate
of hiring and retaining female firefighters. Those differences
tend to support the district court’s finding that Erdman failed
to meet her burden at step three. After all, the ultimate
concern here is not with how far women progress in the hiring
process before being disqualified but with whether they can
ultimately be hired and hold the jobs on a fair and non-
discriminatory basis.
Evidence showed that “many, many” departments
around the country use the IAFF test, which was developed
in conjunction with ten leading fire departments in large cities
across North America. Yet the city also offered evidence that
the Madison fire department maintained a substantially
higher rate of female firefighters than the national average;
14% in Madison in 2014 as compared to a national average of
about 4%. The district court was careful to note that a “rela-
tively strong record of hiring women more generally when
compared to other fire departments around the country” did
not excuse the Madison fire department from considering an
alternative test. 615 F. Supp. 3d at 899. But even with this ca-
veat, the district court was still persuaded that the most plau-
sible inference was that Madison’s high rate of female fire-
fighters was traceable at least in part to the city’s use of its
physical ability test.
We are not as confident as the district court that Madison’s
lesser training wash-out rate and higher retention rate for
26 No. 22-2433

female candidates prove the Madison test is a better predictor
of women’s ability to train for and do the job successfully.
Other possibilities may explain Madison’s stronger record.
These may include the fact that Madison’s fire department
was led by a woman for 16 years, that the city has a genuine
commitment to hiring more women, that it may have a work
environment that is welcoming to women, and provides role
models, mentoring, and support for newly-hired women that
may be missing in other cities. In a city the size of Madison,
having a 365-person firefighting corps that is 10-14% women
(36 to 51 women) rather than the 4% rate nationwide (14 or 15
women), may make the difference in whether a second or
third woman is assigned to any given fire station or work
shift, as opposed to one woman isolated by herself. Such dif-
ferences matter to new hires in a historically male-dominated
profession.
But the district court correctly described its logic on this
point as one “possible inference” from the record. Id. at 900.
Of course, on the city’s motion for summary judgment, plain-
tiff Erdman as the non-movant was entitled to have the court
draw any reasonable factual inferences in her favor. Tolan v.
Cotton, 572 U.S. 650, 660 (2014). But not after the parties pre-
sented their evidence at trial. The district court was obliged to
draw what it thought were the best inferences from the rec-
ord. Again, we “must view the evidence in the entire record
in the light which is most favorable to the finding.” Mala-
chinski v. Comm’r of Internal Revenue, 268 F.3d 497, 505 (7th Cir.
2001) (internal citations omitted). On this record, both parties
are to one degree or another operating on certain unproven
assumptions. We apply a deferential standard of review to
mixed questions of law and fact, and recall that the burden at
this third stage of the analysis was on plaintiff Erdman. We
No. 22-2433 27

are reviewing findings after a bench trial, and because the dis-
trict court’s analysis of the record on this issue is plausible, we
2
must affirm. BRC Rubber & Plastics, 981 F.3d at 622.
“[I]t is the trier of fact, rather than an appellate court, that
resolves debatable factual issues…. It is enough to say that the
district judge’s handling of the disputes … is thoughtful and
reasonable.” Superl Sequoia Ltd. v. Carlson Co., 615 F.3d 831,
833 (7th Cir. 2010). Here, the district court’s analysis of these
issues was thoughtful and reasonable.
The judgment of the district court is AFFIRMED.

2 We do not necessarily agree with every step of the district court’s

reasoning. For example, the district court counted the need for a transfer-
ability study as a burden relevant to the IAFF test’s viability as an alterna-
tive hiring practice. We must not forget that at step three, we are consid-
ering whether a proposed alternative hiring practice would adequately
serve the employer’s legitimate needs. Ricci v. DeStefano, 557 U.S. 557, 578
(2009), citing 42 U.S.C. § 2000e–2(k)(1)(A)(ii) and (C). The purpose of a
transferability study is to assess whether the job duties and equipment of
Madison firefighters are sufficiently similar to those of the ten fire depart-
ments with whom the IAFF test was developed to ensure that the IAFF
test would produce candidates qualified to be firefighters in Madison. But
the substantial equivalence of the Madison and the IAFF test in producing
minimally qualified candidates is itself one of the facts Erdman must
prove to meet her third-step burden. Counting the need for and costs of a
transferability study as weighing against plaintiff’s proposed alternative
hiring practice seems to create a Catch-22. But even apart from the trans-
ferability study question, ample evidence supports the district court’s ul-
timate finding that Erdman failed to show the IAFF test would adequately
serve the city’s legitimate needs.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9925673. Public record. Not legal advice.