A Disparate Impact on a Protected Group Is Not Always Illegal

22 Mar

Shawe Rosenthal LLP – Fiona W. Ong
Lexology, January 31 2024

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.

Note from WorkSaver Employee Testing Systems:
Richard Bunch, PhD, PT, CBES and Trevor Bardarson, PT, OCS, CBES

Obviously, a disparate impact can exist when any employee selection process measures physical abilities, especially with jobs require significant physical exertion. But employers should realize that there can be fair and unfair discrimination, there are both unfair and fair disparate impacts that can result. When PATs are rendered to everyone fairly and equally as required, there may be a difference in the percentage of the older and female employees that do not pass and their selection rates may not pass the 4/5 rule (indicating a disparate impact). But remember this well-known physiological fact: Older people are generally weaker than younger people and women are generally weaker than men.

With jobs that have medium-heavy, heavy, and very heavy work demands, in particular, employers can expect a larger number of older employees and female employees to fail a PAT. This disparate impact is not unfair as indicated by EEOC when the PAT has been validated and properly assesses the essential physical demands to work as conducted by WorkSaver. Therefore, the key to having “fair” disparate impact on employee selection is to ensure that the test rendered correctly reflects valid essential functions of a job. WorkSaver conducts physical demands validations (PDVs) for its clients to identify and measure essential physical demands required to perform essential job functions. These demands are translated to a job-specific PAT protocol for each job using content validation. The PAT protocols then undergo a second level of validation using representative incumbent employees before rolling the program out.

By this method, WorkSaver ensures that their PATs do not over-test or require physical abilities that exceed the essential physical demands required to perform essential functions of the job. As part of our physical demand validation process, WorkSaver offer employers no-cost and low cost (reasonable) ergonomic recommendations to reduce the physical requirements of jobs to the essential demand level. For more information about our nation-wide network and our physical PDV and PAT services, please call WorkSaver at (985) 853-2214 or email our Office Manager, Amy Babin, at

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