the paramedic workforce was female patrick howell who was the chief to merge the medical services e m f field officer for the chicago fire department testified at trial in this case and he confirmed that women and men consistently performed at the same level there were no reports and there is no evidence in this case of any difference in job performance between women and men for new hires city did not institute physical testing for its incumbent workforce although paramedics career spanned decades the city to this day does not mandate required physical testing for incumbents and never as they got older and heavier the city does not test them for physical ability there's no mandated required physical testing for is there a mandatory retirement age i don't know the answer last question placed you know from the data in this case that there are paramedics who continue past the age of fifty until the year two thousand men and women applying for this position had an equal shot at getting it but with the introduction of the physical performance test what we're calling the p p t the odds of employment for women for this position which men and women had been performing side by side for decades with no observable difference in their performance women's chance to split up because of this test and only because of the stats suddenly women were being denied employment in this position at a rate twenty times higher than men although they had performed the job with men every bit as well as men for years this gives rise to two overarching questions in this case why did the city do it and did the city carry its burden of proof to demonstrate that this test w and shop relatedness quote the plaintiff wins simply by showing disparate impact that was the posture at the beginning of the trial here the burden of proof was on the city to prove that there is a connection between candidate scores on this test and their subsequent shot performs with there is no question at the outset there were two repeated disparate impact the disparate impact was foreseeable yes and so they were taking that into consideration i thought in trying to come were just under sixty percent and forty percent of the women were denied employment because this test the day before this test one hundred percent of men and women pass but the test is question the test is there a justification for denying employment to forty percent when you have no demonstrated gain or benefit from this study is one of the remarkable things about the record in this case is there is no evidence that there was any improvement on any aspect of job performance after the introduction of this test there is no evidence that job performance improved that injury rates went down that patient safety was effect not there is no evidence that there was a problem before this test except for chief steward here say no it's what we have here is a test that didn't address a problem it created a problem the day before the test men and women compete for this job on an equal footing and there is no evidence that any patient safety was ever jeopardized or that performance was different between men and women the day after the test there's no evidence that there's an improvement the only demonstrated result of this test in service intentional thing or at least the first story about treatment that is part of the intent case and that is not the only evidence of intent here but that is part of it which is if you have a result in hand from your past experience and you decide to develop a new test using the same test of all who told you she's going to give you the same approach and the same results there's a logical inference that you did that because of the results and not merely in spite of them t there are a cap number of positions a city there's no need so it's something that is limited it is a fiction number of positions that men and women will compete for the more men you hire the fewer women you think and so is at least one of the reasons wade say their treatment is to get more men because somebody said that it's safer or something well the city gave only one reason this case i my client took the test in two thousand and four the test was instituted in two thousand we had the trial in two thousand and fourteen by the time we had trial there was fourteen years of history there was nine years of data from this test if this test was good at something if it improved anything for the fire department they had nine years of test data and fourteen years of subsequent candidates performance on the job to dip into to show what it was that happened as a result of this test that was praiseworthy that would justify the disparate impact they showed nothing there is no evidence in this case that any aspect of patient safety or job performance improved at all that that's where they wanted to stay and that's why they did this now the city's diff on the disparate treatment so there's no demonstrated gain or benefit from this test and that's very compelling in evidence there are lots of evidence of intent to come so the city had alternatives the city would test for physical abilities and not do it this way for instance if your concern is whether your new hires are strong enough to lift a patient on a stretcher put a dummy on a stretcher and ask the candidates to lift it and see if they can do it you can test that skill very th must be able to do who would have food testing your way and they still came up with this disparity then we would have a very different case and what we would be talking about is whether they correctly determined how much weight has to be lifted to perform the  but here there is no such test remember this test has three of us the first one you're peddling a bicycle with your arse we had a whole parade of working paramedics who testified to strike up to a person everyone who was asked the question said there are three events on this test and we don't do any of them on the job and they don't look like anything we do want to try so there's pedaling a bicycle with europe's nobody does this motion when they're attending to a pitch ok then there is a second to that where you have an immovable bar that you hold between your legs and you search upward pressure with your legs ok that's called a static lift if you go like this with the structure if it doesn't move upwards with you you've got a real problem the whole it's the move the stretch that's not something anybody ever does on the job the third of it and there is a video of the test in the record which encourage you to look at third of that was a step that it's got two steps going up and two steps going down and your crossed back and forth as many times as you can him set period and they count your crosses and then they say we're not going to count any crossed where you didn't touch both feet on the ground before you turned around and went back and all the but that's the one they multiplied by seven when you multiply thirteen by seven suddenly got a ninety one point spread and now the gap in performance between men and women on that test is every bit as great as on the other two events and that's a real problem ok so we've got a test it doesn't address any known problem and it doesn't provide any known benefit the city says we did it to reduce injuries and that explanation is difficult to fathom for two reasons first of all and i'll probably be instructed jury could draw all of these differences first of all if your concern is injuries there are a whole series of steps that you would have taken before during and after this test that the city never took you to gather evidence about what the injuries were and why they were occurring and how frequently it send that evidence to your chest to fill you to ask your to devise a test that specifically addressed the kinds of injuries that you were experiencing so that the test would screen people either for resistance to those injuries for predisposition to them one way or the other and then after you gave the test you gather your data and see whether the test had gotten any good had it reduced injuries and the evidence in this case is the city did none of those now there's a second  goes judge me on each of your point about the ninety eight percent of the men pass if your goal is to reduce injuries and three quarters of your workforce is male and you want to reduce injuries by giving a test that ninety eight percent of men pass and less the only paramedics getting injured on the job are women you just can scarcely help how because you're not screening out any men you're only screened out women there's no evidence that only women were getting injured here from all of these facts but about the jury instruction the jury instruction was seriously flawed the jury instruction told this jury that you cannot and this is the way the city ar didn't closing to in its way it argued for the instruction when it urged you cannot rule for the plaintiffs in this case because there is no evidence that a man with a score below nine hundred thirty five was hired that's improper instruction in a challenge to a facially neutral for its ok let's say and this is only a slight variation on the actual facts in this case the city had an express admission we're going to adopt a test judgment because of some question there what survives summary judgment not only because the evidence of that's why they hired gephardt but there are two other major categories of evidence one is how fishy the explanation was remember this is not a case where the employer decided to take the fifth amendment and put the the plaintiff to their burden of proof you tell us what our intent was the city volunteered its intact the city said our intent in devising this test was to address injuries but that didn't make sense and it was fishy enough that explanation given that ninety eight percent of men passed and there was no evidence that only women were getting injured and because they didn't do any of the things that you would expect them to do if you were gathering evidence of injuries that a jury could say that's pretext but in addition the city had less discriminatory alternatives here dr gephardt gave them very specific alternatives the city refused to adopt them disparate impact into disparate treatment you understand are in europe one yes they are dispositive of disparate impact because there are lesser discriminatory charges that were presented to the city in the city refused to use but they are also relevant disparate treatment to the intent case because when you have an employer who has alternatives refuses to use them and refuses to explain why the top of that that's serious recalcitrance and in the light of a reasonable jury properly instructed could sign they had it they wouldn't fix it they won't even tell us why it wouldn't fix it they must have intended they're not doing it in spite of the disparate impact they're doing it because of good morning your honor may please the court and suzanne let us represent the city of chicago and two thousand the city and using a physical abilities as a test to help ensure that chicago fire department paramedics meet the physical demands of being a paramedic the job is without question physically demanding involving constant lifting and carrying of quitting and patients of all sizes up and down stairs with all kinds of obstacles and all kinds of circumstances ensuring that paramedics can handle the physical demands of the jobs crucial to public safety the plaintiffs are five women who did not pass the test in two thousand and four and they brought two challenges under title seven disparate treatment and disparate impact and this morning our explain that judgment was proper  both of those claims with respect to the disparate treatment claim i did just in on plaintiff's disparate treatment claims should be affirmed because there is no evidence that the physical abilities test was adopted for the purpose of excluding women so the plaintiffs jury instruction that was tailored to that theory was properly rejected the evidence here shows that city officials and h p s the contractor who was hired to develop the tests were focused on the predictability of the physical abilities test and were concerned with public safety and also with adverse impact and they made decisions along the way to minimize it when they could with the jury instruction it's almost well we do also submit that judgment was we were entitled to judgment as a matter of law we do not believe this theory of discrimination should go to the jury at all really could you think it's harmless error is it harmless error that i mean if the woman wouldn't right is that is that the test which of course would ninety eight percent of the men pass the thing it's pretty obvious that somebody for the test isn't going to the man who forks just isn't going to get a job the magistrate judge was but it was our position that you know under plaintiff's theory they didn't have evidence to support a theory of intentional discrimination in the adoption of the physical abilities test itself so they were entitled to an instruction that was tailored to that theory and if i can explain just rely essentially and we heard here this morning and they realize centrally on the fact of adverse impact to support their intentional discrimination claim it's repackaged in several ways they say they argue that the city hired an expert who had developed other test ahead and an adverse impact and they argue that the city knew in two thousand and four that this test was likely to have an adverse impact because it had in two thousand and two thousand and one who is minister all it shows is knowledge that an adverse impact is likely and that is not enough and it's not enough because the city is allowed to use a physical abilities test even with an adverse impact if it is job related  and also besides that here the adverse impact was like clearly a concern to the city it was never the point of the test and this is what i heard here today about whether or not the city showed afterwards that this that this had you know had the effect that the city  here you could validate this study that way that we validated our test as we were supposed to before we implemented it we did a detailed studies show that the physical abilities test is job related and does protect predict successful job perfor well that makes sense and i know obviously this is you know important to me compared to someone who was previously medium to some lesser demanding area i don't know the regular three or four calls a day acknowledged it was going to be so there was explain there was an expression that that was going to be a concern women don't often don't perform as well on these exams but there are things you can do along the way to try to reduce adverse impact and the city was focused on these at several points during this process and we also do have the testimony of chief steward who did give a general neutral reason for initiating the tests that paramedics were being injured before even completing the academy gephardt confirmed in her proposal that reducing workplace injuries was one of the benefits that a physical abilities test can have based on other studies that she had done the plaintiffs have presented no evidence to show that there were in fact there weren't any workplace true situation and wasn't his true reason and true motivation police said they're there when avoid injuries and they're saying well there's no proof that before all of this there were injuries is that what they're saying there were no injuries or really that there were injuries and they offered no evidence to show that that it wasn't true he was a had a he was the head he was a personnel and he was over the medical section and he had been receiving reports that there were injuries from paramedics even before they completed the academy that was a concern of his he brought it to his superiors and that was what initiated the discussion about the physical abilities test but besides that injuries are not the city is intitled to test for physical abilities that no one dispute necessary for the job a physical ability tests are now common for jobs that have clearly physical components to them as the paramedic job does a bit people get older and heavier or less conditioned and know that sort of thing well i mean that that is a separate problem i would note that there is a chicago fire department general order that does require paramedics to maintain themselves and physically and mentally best people that's why i wondered if there is a cap on how many are hired and then the question is is there going to be a quote  lot of women who don't make the great might seem a lot of people compete for these jobs a lot of people compete for these jobs and so you're looking for you get the best for these jobs we do are looking for those who can well actually this is what gets me they're looking for candidates who can handle you know who can handle the job satisfactorily we don't do rank order in other words and that's another decision that was made along the way that was designed to to guard against additional adverse impact  but this is continuing the same demand from day one and pretty much as far as i know there are some of course to move into the ranks of the fire fire paramedic but that pretty much this is the same job from where i still go back to that  excluding women and there's just no evidence of that we've already discussed adverse impact alone is not enough just about the intent and when and then arguing that instruction that the only way you can show that is by showing that a man with the same score would have been hired that's a pretty tough honest i mean she's very honest when she says some of these tests are going to happen adverse impact on women but the fact that we hired an expert who had who had made tests that have an adverse impact notably when she developed adverse impacts at developed physical abilities test for the chicago fire department those are supported by their own validity studies the mere fact that we hired someone that had a valid test with an adverse impact is no basis to infer intentional discrimination when  adverse everson packed alone in that test as well it would be not not enough to infer discrimination in the firefighters test for example so really this is all just layering adverse impact alone is not enough to infer intentional that's well settled i think even plaintiffs would agree and you really can't you can't infer more than that from the fact that your god heart had produced other tests with an adverse impact and beyond that and you know we have doctor that part sudden here is very thorough it's full of thorough job analysis of statistical analysis testing that was done and it was on the strength of this report that the city follow these recommendations and there's no hint of discriminant or discriminatory animus towards women in that entire process briefly with respect to the plaintiffs referred to our reliance on her recommendations or her suggestions for reducing impact and it's not really fair characterization what happened she proposed three what she called optional implementation products which could help reduce impact and the city selected one of the three she did not recommended one over the other or say that one would be better than the other we picked one on her rectum on her suggestion that it could reduce adverse impact it's hard different than the one was given suggesting an instruction that you know who and would then ask you what do you think of that instruction we think that instruction would have allowed the jury to decide the question whether  there was intentional discrimination against women in the adoption of the physical abilities test and our position was there was no evidence of that and so the jury was not to decide about it entitled to decide  pattern instruction and that is that one that is typically give an illustration of the pattern but it doesn't seem to be the pattern here it's my understand that it doesn't fit the pattern our position is that they were entitled to an instruction that didn't fit the pattern that was taylor to their theory of the case because they didn't have evidence do you always have to show evidence to support an alternative instruction and they did not have that and the judge allowed the  the case to go to the jury on the pattern instruction and if you look at his comments he was concerned about some of the evidence that the plaintiffs had to do so with respect to their own individual circumstances in test administr that they were interrupted and other things that happened during tested ministrations of that was a question that the judge allowed to go to the jury and i understand that isn't what plaintiffs identified as the crux of their claim but that was that that is what was allowed under the jury instruction that was given the the alternative instruction was it was not our position is that it was not allowed because they just simply were allowed to take that theory to the jury on this record  experience hundreds of physical abilities test from the private industry to the military to public safety positions including paramedics she conducted a thorough study with the complete job analysis testing and statistical evidence needed to show that the physical abilities test was job related and consistent with business necessity the sample of incumbents was represented a it was made up of of candidates normally available in the relevant labor market and the cut off score two was set in a way that was consistent was job related and consists in the business as a city the cutoff score must be reasonable and consistent with normal expectations of acceptable proficiency in the workforce and here the score was selected based on dr graham hard to chill the now so it's at analysis which identifies scores corresponding to minimal acceptable levels of performance  based on her analysis of the physical abilities test scores and the job performance scores she indicated i see that i see i have a few more it that utility analysis indicates that the cut off selected nine thirty five which was nine thirty five ninety two percent of those who perform above that score would perform satisfactorily while nonny while eighty while under one thirty five eighty five percent would form a cutoff scored to see who was performing below the typical range for paramedics and ultimately the city selected the score that all incumbents would pass and that's not unlike the cutoff that was approved of an evidence from this court suggested that a rational way at scoring the firefighters test would have been to take the maximum time in which a firefighter would take the test and make that the cut its argument there is no demonstration that success on this test results in improved job performance sect they chose to defend this test and to try to validate it by statistics that is not the only way to validate a test but it is the way they chose to do it when you used to to sticks to fail the data test and they do not dispute that's their entire job relating this defense depended exclusively on statistics when you do that you must follow the laws of statistics europe performance since that time i guess you're referring to job performance before they did that to drop performance before but most what you must do it with your statistics if you must draw your statistics from a representative sample this court has been repeatedly clear about that into coven vs plaza associates in s been shy persist directs that charges versus illinois state police in united states vs johnston people who have been there when women yet and that means when you draw your income it's who've been there for a while it's not enough to say we got african americans whites men and women because what you're measuring is physical ability that would be like taking a political poll and saying well i got a lot of men and i got a lot of women without looking at whether you got both democrats and republicans that's the essence of what they did here they got a bunch of superstar physical performers who dr gephardt said were among the best she had ever tested in any setting private or public for public safety positions where otherwise and then they set the passing score on the basis of the performance of the straight a students you can't do that no case is ever in doubt that the second very important point is that because of job related is what you must correlate his performance on the test to an actual measure of job performance what they did here was take performance on the physical form instead and compared to scores on a second set of tests the work sample the second circuit citizen in guardian says correctly you can not do that of course your sister wanted to sit down