EEOC ORDERED TO SPLIT SUBPOENA COMPLIANCE COSTS WITH THIRD-PARTY TESTER

by Art Gutman Ph.D., Professor, Florida Institute of Technology

On May 3, 2011 Judge Arthur J. Schwab of the District Court of Western Pennsylvania ordered the EEOC and Kronos Inc. to split the costs (estimated at $75,000) of complying with a subpoena from the EEOC to furnish information relating to an ADA claim by an applicant (Vicky Sandy) who was rejected for hire as a cashier/checker at a Kroger Store in Clarksburg, West Virginia. The order(s) may be viewed at:

Kronos - Order to Split Costs
Kronos - Motion for Reconsideration Denied

The implications of Judge Schwab’s order(s) pale in comparison to the implications of what the EEOC sought to obtain in this case. The case begin in May 2007 when Ms. Sandy applied for the cashier/checking job and was rejected after oral administration of a personality assessment instrument created by Kronos. The EEOC sued Kroger on July 3, 2007 claiming that Sandy was rejected because she is hearing and speech impaired. More importantly, as part of its investigation, the EEOC sought the following from Kronos to produce:


Any and all documents and data constituting or related to validation studies or validation evidence pertaining to Unicru [Kronos' predecessor] and/or Kronos assessment tests purchased by The Kroger Company including but not limited to such studies or evidence as they relate to the use of the tests as personnel selection or screening instruments.

The user's manual and instructions for the use of the Assessment Tests used by The Kroger Company

Any and all documents and data, including but not limited to correspondence, notes, and data files, relating to The Kroger Company, its use of the Assessment Tests; results, ratings, or scores of individual test-takers; and any validation efforts made thereto.

Any and all documents discussing, analyzing or measuring potential adverse impact on individuals with disabilities and/or an individual's race.

Any and all documents related to any and all job analyses created or drafted by any person or entity relating to any and all positions at The Kroger Company

A catalogue which includes each and every assessment offered by Unicru/Kronos. Additionally provide descriptions of each assessment.



In his ruling on June 1, 2009 [2009 U.S. Dist. LEXIS 45449], Judge Schwab called the Subpoena “breathtaking”, and sought to limit its scope. In the words of the judge:


The scope of the Subpoena is breathtaking - - potentially including most of Kronos' business documents, covering its entire client base, 1 with no time, geographic, or job description limitations. To the extent that the EEOC Subpoena seeks materials from a third-party that are unrelated to the Sandy discriminatory treatment investigation, this Court deems the request to be far beyond, and not relevant to, the legitimate purpose of that investigation and that charge.



Judge Schwab then limited the subpoena to production of documents relating to the Kroger Company and specific jobs relating to the positions of bagger, stocker, and/or cashier/checker.


Any user's manual and instructions for the use of the Assessment Tests provided to The Kroger Company

Any and all documents and data, including but not limited to correspondence, notes, and data files, relating to The Kroger Company, including use of the Assessment Tests; results, ratings, or scores of individual test-takers at The Kroger Company; and any validation efforts performed specific for and only for The Kroger Company

Any and all documents discussing, analyzing or measuring potential adverse impact on individuals with disabilities relating specifically to and only to The Kroger Company

Any and all documents related to any and all job analyses created or drafted by Kronos relating to the bagger, stocker, and/or cashier/checker positions at The Kroger Company

Any catalogue provided to The Kroger Company



Any and all reference to race was eliminated and the discovery period was limited to January 1, 2006 through May 31, 2007. Judge Schwab also ordered the parties to enter into "any appropriate confidentiality order to protect any trade secret/confidential information of Kronos and the personal information of persons taking the Assessment Tests."

Then, on September 7, 2007, the 3rd Circuit [620 F.3d 287] ruled that Judge Schwab abused his discretion by: (1) limiting the scope of the subpoena to including only bagger, stocker, and/or cashier/checker positions (because the assessment instrument is used for all retail positions; (2) limiting the scope to only the state of West Virginia; (3) limiting the time frame for collecting relevant documents, and (4) limiting the scope to only Kroger stores. However, the 3rd Circuit preserved the right of Judge Schwab to eliminate information related to race discrimination.

On remand, Judge Schwab issued the following order in his May 3, 2011 ruling:


Kronos shall produce any and all documents and data constituting or related to validation studies or validation evidence pertaining to Unicru and/or Kronos assessment tests purchased by The Kroger Company, including but not limited to such studies or evidence as they relate to the use of the tests as personnel selection or screening instruments, even if created or performed for other customer(s), if such studies or evidence were relied upon in creating or implementing the tests for Kroger. The names/identity of any other customer(s) should be deleted/redacted. [Said document production is limited to information relating to disabilities, persons with disabilities, or adverse impact upon persons with disabilities.]



Judge Schwab also reinforced the provisions for confidentiality.

Collectively, these rulings have implications beyond the 50-50 monetary split between the EEOC and Kronos. It serves notice of potential vulnerability for companies and/or consultants that develop tests as well as companies that use these tests.

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