Evans v. City of Evanston, s. 88-2923
| Decision Date | 29 August 1989 |
| Docket Number | 88-2995,Nos. 88-2923,s. 88-2923 |
| Parties | 50 Fair Empl.Prac.Cas. 612, 51 Empl. Prac. Dec. P 39,261 Charlene EVANS, individually and on behalf of a class, Plaintiff-Appellant, Cross-Appellee, v. CITY OF EVANSTON and Director of Personnel, City of Evanston, Defendants-Appellees, Cross-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Elizabeth Dale, Kenneth N. Flaxman, Chicago, Ill., for plaintiff-appellant, cross-appellee.
Jack M. Siegel, Siegel & Warnock, Chicago, Ill., fordefendants-appellees, cross-appellants.
Before POSNER, RIPPLE, and MANION, Circuit Judges.
This is a class action under Title VII of the Civil Rights Act of 1964 on behalf of the 39 women who failed the physical agility test given by the Evanston fire department to applicants for firefighting jobs in 1983. Eighty-five percent of the women who took the test failed (only seven percent of the men failed) and were thereby disqualified, and there are no women among Evanston's 106 firefighters although at one time there were two. The test is conceded to have had a "disparate impact" on women. So unless the test (more specifically the method of scoring it--the focus of the plaintiff's attack) serves a legitimate interest of the employer, it violates Title VII. The district judge found a violation and gave judgment for the class. 695 F.Supp. 922 (N.D.Ill.1988). The city appeals, challenging the finding of liability; the plaintiff also appeals, challenging the adequacy of the equitable relief that the judge ordered. The case was tried before the Supreme Court's decision in Wards Cove Packing Co. v. Atonio, --- U.S. ----, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), changed the ground rules for disparate impact litigation. In another case decided today, Allen v. Seidman, 881 F.2d 375 (7th Cir. 1989), we have offered our interpretation of Wards Cove, and rather than repeat it here we shall simply apply it.
The physical agility test that the Evanston Fire Department used in 1983 (and also in 1981 and 1985) consisted of a group of tasks which were to be performed consecutively by each applicant without a break, while wearing a firefighter's uniform. The tasks were: climbing to the top of a 70-foot ladder; climbing an extension ladder twice while carrying a hose pack; removing a ladder from a firetruck, carrying the ladder to a wall, leaning it up against the wall, and then removing it and returning it to the truck; connecting a hose to a fire hydrant, turning the hydrant on and off, and disconnecting the hose; and dragging a section of hose filled with water fifty feet, dragging a tarpaulin to the top of a hill, carrying the tarp through ten tires, and again dragging a section of hose filled with water fifty feet. The test was timed. The mean time in 1983 was 628 seconds, and the Fire Department chose one standard deviation above this mean as the passing score, with the result that anyone who took more than 767 seconds to complete the test flunked.
The physical agility test is only the first hurdle an applicant must clear to become a firefighter. Next come tests of intelligence and of psychological stability, and in the end only nine of the 839 persons who applied for firefighter jobs in 1983 were hired--all men. The fire department's choice of one standard deviation above the mean as the passing score was not consistent. In 1985 the passing score was 915 seconds, which was 2.8 standard deviations above the mean for that year. In 1981 the passing score had been 890 seconds, which was 1.7 standard deviations above the mean, but had been raised in order to enable three of the four women who took the test to pass it.
The district judge found that the test itself was fine, and this is unquestionably correct under the relaxed standard of Wards Cove and is not seriously contested by the plaintiff. The test was designed by firefighters, consists of tasks that faithfully imitate the tasks that firefighters are called on to perform in their work, tests for speed, skill, endurance in--in a word, aptitude for--performing those tasks, and was pretested on the Evanston firefighter force before being given to applicants. It seems clearly related to the employer's legitimate need for physically strong firefighters, and the plaintiff has suggested no alternative that would serve that need as well yet be less difficult for women. A similar test was upheld in Berkman v. City of New York, 812 F.2d 52, 59-60 (2d Cir.1987); see also the earlier opinion in that case reported at 705 F.2d 584, 592 n. 10 (2d Cir.1983).
The rub is in the scoring of the test. Since men are on average stronger and faster than women, the higher the passing score on a test such as Evanston's physical agility test (that is, the shorter the time in which it must be completed) the smaller the percentage of women likely to pass it. To satisfy its burden of producing evidence that the test--which means all aspects of the test including the method of scoring it--served a legitimate employer purpose, the city was obliged to produce evidence that the method of determining who passed the test in 1983 was related to the city's need for a physically capable firefighting force. Cf. Guardians Association v. Civil Service Commission, 630 F.2d 79,105-06 (2d Cir.1980); Thomas v. City of Evanston, 610 F.Supp. 422, 431 (N.D.Ill.1985).
The city did produce evidence relating to this question but it consisted of little more than testimony that one standard deviation above the mean is a frequent cut-off point on tests and that the cut-off point for the physical agility test was generous to the candidates and quite possibly should have been lower. It is not surprising that Judge Zagel was not persuaded by this evidence. The choice of one standard deviation above the mean was a decision to pass 84 percent of the test takers, and this meant that the passing score would depend on the average performance of those who happened to take it. But the ability to perform firefighting tasks adequately depends not on relative but on absolute test performance. If one year all the applicants were superbly fit, it would be irrational to disqualify the entire bottom 16 percent. For it is not only physical abilities that the fire department is after--as is made plain by the fact that no preference is given to candidates who do exceptionally well on the physical agility test, as opposed to those who barely pass it....
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