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 40%.

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:

  1. The EEOC has extremely broad subpoena power.
  2. 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.
  3. 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.
  4. Employers using such tests should review the general findings to ensure that the tests do not adversely impact any protected class.

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