On September 19, 2016, the 7th Circuit remanded disparate treatment and disparate impact sex discrimination claims after a jury trial based on erroneous jury instructions and an unreliable physical-skills study. Ernst v. City of Chicago, No. 14-3783 & 15-2030 (7th Cir. 9/19/2016). This lawsuit was filed by a group of women who applied unsuccessfully to work as paramedics for the City of Chicago (the "City"). All five women were denied employment because they failed the City's physical-skills entrance exam. Title VII of the Civil Rights Act of 1964, as amended ("Title VII") prohibits two types of discrimination: (1) intentional discrimination based on a protected status such as gender, which is called disparate treatment; and (2) employment practices that have a disproportionately adverse impact on employees who belong to a protected class, even if the impact is unintended, which is called disparate impact.
Employers can defend against a disparate-impact claim by showing that the employment practice at issue is job-related and consistent with business necessity. However, even if an employer meets this burden, an employee can still succeed on a disparate-impact claim by proving that the employer has rejected an available alternative employment practice that: (1) results in less disparate impact, and (2) serves the employer's legitimate needs. In this case, the 7th Circuit held that the jury should have been instructed on the key question of whether the City was motivated by a gender bias in creating its skills test. Thus, the 7th Circuit remanded the disparate-treatment claim for a new trial with proper instructions. Note that this was not a disparate impact issue, even though it involved the same challenged employment practice at issue in the disparate impact claim. To prove a disparate-impact case, a plaintiff must demonstrate an adverse impact on employees with a protected status like gender. Disparate-impact claims are usually complicated and misunderstood, even by lawyers. Statistical battles are often involved, along with convoluted analysis of various employment-related tests. In this case, the absence of a connection between actual job skills and the skills tested by the City was fatal to the City's defense. Thus, the 7th Circuit held that the plaintiffs should have prevailed on their Title VII disparate-impact claims, and reversed the disparate-impact trial verdict, with instructions to enter judgment in favor of the plaintiffs.