Applicant fails test 9 times — then sues for race bias

A federal appeals court upheld a lower court’s disposition of a firefighter recruit’s claim of unlawful race discrimination. 

Firefighter recruits at the city of Toledo’s training academy have to pass a test involving cutting a hole in a roof with a chainsaw.

The academy’s usual practice was to dismiss any recruit who did not pass the test after three tries.

He Just Kept Failing

A Black recruit failed the test three times. He was given more chances to pass because the city wanted a more racially diverse fire department.

The academy dismissed him after he failed the test six more times.

The academy didn’t give anyone else more than three tries. And it never allowed any recruit to graduate from the academy without passing the test. The recruit sued, alleging race discrimination under Title VII.

He said the academy rigged the test. More specifically, he alleged that the city “manufactured” his inability to pass the test by declining to properly train and test him.

A federal district court rejected his claim, and he filed an appeal.

The U.S. Court of Appeals for the Sixth Circuit affirmed the lower court’s decision.

Not Enough Evidence

The recruit did not identify someone of a different race who the academy treated better, the appeals court explained.

There were 30 recruits in the recruit’s class, including three African Americans, two women and two Hispanic individuals.

One of the other African American recruits accepted a different job, and all the others passed the test.

There was no one who was similarly situated and treated better, the court explained.

The appeals court rejected the claim that the academy rigged the test.

As to an initial round of testing, it provided the recruit received the same instruction as all other recruits and tested him using the same roof they did. Everyone else passed during that initial round.

Testing Was Fair

As to two latter rounds of testing, the recruit did not show the testing was unfair. The recruit said the roof he tested on in the latter rounds had a roof with a steeper pitch. But other evidence showed the house used in the latter rounds was almost identical to the one used in the first round and that it did not create any unusual barriers to passing the test.

There was also insufficient evidence to show that the academy provided the recruit subpar training ahead of the second and third rounds of testing.

The appeals court affirmed the lower court’s ruling.

Smith v. City of Toledo, No. 20-3434, 2021 WL 4057701 (6th Cir. 9/7/21).

Tom D'Agostino

Tom D’Agostino is an attorney and legal editor who has more than 30 years of experience writing about employment law, disability law and education law trends. He earned his B.A. degree from Ramapo College of New Jersey and his J.D. from the Duquesne University School of Law. D’Agostino, who is a member of the Pennsylvania bar, is a past member of the American Bar Association’s Section of Individual Rights and Responsibilities and the Pennsylvania Bar Association’s Legal Services to Persons with Disabilities Committee. He has provided technical assistance in the production of segments for television’s ABC World News and 20/20, and he has been quoted in periodicals including USA Today. He is also a past contributing author of Legal Rights of Persons with Disabilities: An Analysis of Federal Law, which is a comprehensive two-volume treatise addressing the legal rights of people with disabilities. Tom is passionate about baseball and authentic Italian food. When not writing, he enjoys spending time with family.