New Firefighter Testing Law

In July of this year, Governor Quinn signed into law amendments to the Illinois Municipal Code and the Fire Protection District Act that require written (“mental aptitude”) examinations given to applicants for firefighter positions to be “supported by appropriate validation evidence and [to] comply with all applicable state and federal laws”.  Specifically, the law provides, “[m]inimum scores should be set by the [appointing authority, either the Board of Fire and Police Commissioners, the Board of Fire Commissioners, the Civil Service Commission or the Illinois Joint Labor and Management Committee] so as to demonstrate a candidate’s ability to perform the essential functions of the job.  The minimum score set by the [appointing authority] shall be supported by appropriate validation evidence and shall comply with all applicable state and federal laws.”

This month, fire chiefs around the state have received letters from the Attorney General’s office notifying them of the changes in the law and explaining why the law was changed.  Under previous law, the letter says, the appointing authority was required to set passing scores for written examinations at the median score of applicants who took the test.  The letter says, however, that the U.S. Department of Justice recently investigated the impact of this method of setting written examination cut-off scores and concluded that it had a disparate impact on females and minorities without measuring whether an excluded applicant had the requisite qualifications to perform the job of firefighter.  Accordingly, the law in Illinois has now been changed to require the appointing authority to set cut-off scores for written firefighter examinations based on what the statute calls “appropriate validation evidence”.

“Validation evidence” (or, more accurately, evidence of validity) derives from the Uniform Guidelines on Employee Selection Procedures, published jointly by the U.S. government’s Equal Employment Opportunity Commission, Civil Service Commission, Department of Labor and Department of Justice.  The purpose of validity evidence is to show that the test measures what it is supposed to measure.  To accomplish this purpose, three types of validity evidence are recognized by the Uniform Guidelines – criterion-related validity, content validity, and construct validity.  The new law, presumably, requires the appointing authority to use one of these types of validity evidence to support the setting of a cut-off score at a point giving rise to a reasonable presumption that those who achieve at least a minimum score on the test meet the minimum requirements for the position that are measured by the test, while those who do not achieve at least the minimum score do not meet those requirements.

Under the law, a test that has a disparate impact on females and minorities may be held to be unlawful unless that test can be shown to be job-related; that is, it must be shown to measure knowledges, skills and abilities required by the job.  A test that is “validated” is one that has been shown by evidence of validity to be job-related and therefore not discriminatory even if the test proportionately disqualifies females and/or minorities.

The new amendments do not require that the appointing authority abandon existing eligibility lists.  But written firefighter tests given after July 16, 2014 must meet the requirements of the new amendments; specifically, the Attorney General’s office says, “[e]valuation of written examination performance based on the median score of test takers should no longer be used.”

While the law does not necessarily require it, it is anticipated that a number of jurisdictions will retain the services of professionals, such as industrial psychologists, experts in psychometrics, and labor economists, to develop the methods and procedures necessary to obtain evidence of validity.  Municipalities with fire departments and fire protection districts are urged to seek advice of counsel as to the extent and timing of their obligations to comply with the new amendments and the methods best utilized in their particular circumstances to achieve compliance.