Way back in June 2007, Ms. Sandy, who is hearing and speech
impaired, filed an EEOC charge against Kroger, a grocery store
chain, alleging disability discrimination when she applied for a
position as a cashier, bagger and stocker. During its hiring
process, Kroger uses a "Customer Service Assessment"
("CSA") created by a company called Kronos. The CSA
purports to evaluate several human traits underlining "strong
service orientation" and "interpersonal skills" such
as controlling impatience, showing respect, listening attentively,
working well on teams, and being sensitive to others' feelings.
According to Kronos, applicants with higher CSA scores are more
likely to be cheerful, polite, friendly, listen carefully, and
communicate well with customers. Poor Ms. Sandy scored just
In response, Kroger provided Ms. Sandy's employment
application summary with the Kronos assessment which, as you may
imagine, was not very complimentary. The EEOC, however, wanted more
and issued a third-party administrative subpoena to Kronos. The
subpoena sought CSAs created or performed for customers other than
Kroger. The District Court said: "No, No, No EEOC; you cannot
subpoena materials that do not directly relate to the test Kronos
developed or implemented for Kroger." Undaunted, the EEOC
appealed to the Third Circuit. (By the way, this was the
second timethe EEOC appealed a discovery dispute
in this matter to the Third Circuit.)
Just last week, the Third Circuit overturned the District
Court's decision. It held that Kronos must produce such
documents, "even if not directly linked to Kroger,"
because the documents might reveal that CSAs adversely impact
disabled applicants. The Court further opined that the CSAs might
assist the EEOC in evaluating whether "Kroger's use of the
tests constituted an unlawful employment action."
This opinion offers several life lessons for employers:
The EEOC has extremely broad subpoena power.
The EEOC can and will employ aggressive litigation tactics and
will keep on "going and going and going" if it disagrees
with a Court decision.
If your company uses outside assessment tests during the
application or interview process, it might be liable for any type
of disparate impact caused by the third-party's tests because
it will be your company that is sued for discrimination, not the
company that created the tests.
Employers using such tests should review the general findings
to ensure that the tests do not adversely impact any protected
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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