A Disparate Impact on a Protected Group Is Not Always Illegal

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One form of discrimination is where a policy or job requirement has a disparate (i.e. negative) impact on a protected group. However, that impact is not necessarily illegal under Title VII where there is a legitimate need for the policy or requirement, as the U.S. Court of Appeals for the 7th Circuit recently reiterated.

In Erdman v. City of Madison, a female firefighter could not pass the City’s physical abilities test, and she sued, alleging that the City’s test had a disparate impact on women in violation of Title VII, and that the City could have used an alternate test with less of a disparate impact. The 7th Circuit found, however, that the City was able to demonstrate that the alternative test did not serve its unique legitimate needs.

As the 7th Circuit explained, in order to serve an employer’s legitimate needs, any alternative hiring practice must be “substantially equally valid,” meaning that it “would lead to a workforce that is substantially equally qualified.” However, factors such as cost or other burdens imposed by the alternative may also be taken into account in determining if the alternative is “substantially as efficient as the challenged practice in serving the employer’s legitimate business goals.” In this case, the City argued that its test measured elements that were specifically designed to replicate tasks that its firefighters would be expected to perform with the City’s equipment and in light of specific safety concerns. The City also showed that its test screened out applicants that were likely to wash out later in the training process, as it had a higher rate of hiring and retaining female applicants than other fire departments. Based on these showings, the 7th Circuit agreed that the City’s test was not illegal.

This case reminds employers that not all job requirements that have a disparate impact are prohibited by Title VII. However, it is critically important that they consider whether there are alternative criteria that could accomplish essentially the same legitimate purpose with less adverse impact on the protected group – and if not, they need to be prepared to articulate why not with objective, factual support.