EEOC V. KRONOS - ACT 2

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

We reported on Act 1 in an alert posted on May 31, 2011. It seemed like the case was over --- well think again. What seemed ominous for test makers at that time seems even more ominous now.

To refresh your memory, the case began in May 2007, when the EEOC lodged and ADA suit against Kroeger on behalf of Vicky Sandy, who was rejected for a cashier/checking job based on poor performance on an oral administration of a Kronos personality assessment instrument. Sandy had hearing and speech impairments. As part of its investigation, the EEOC sought numerous documents, including:

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.

District Court Judge Schwab called the request “breathtaking” [2009 U.S. Dist. LEXIS 45449] and limited the scope to documents relating to the positions of bagger, stocker, and/or cashier/checker at Kroegers as follows:

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

There were other rulings (e.g., no data on race, limitation of the discovery period, confidentiality to protect Kronos trade secrets, and a 50-50 split of the costs of producing documents).

Though limiting relative to the initial request, one would think that was plenty to give up. However, 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.

So, with these remand instructions in mind, Judge Schwab ruled:

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.]

Wow … that’s a lot, but unfortunately, not enough. In an opinion issued on 9/14/12 (see

2012 U.S. App. LEXIS 19320), the 3rd Circuit struck down Judge Schwab’s ruling and asked for more. The first thing the 3rd Circuit ruled on was the limitation of studies to only what Kroeger relied on. Accordingly:

Any limitation on the production of validity studies that requires such studies to relate to Kroger in any way impermissibly excludes relevant evidence and violates our mandate in Kronos I. We will therefore remand with instructions to the District Court to remove the "relied upon" language from its order enforcing the subpoena.

Also eliminated was restricting the discover to disability issues (as underlined above). Additionally, the 3rd Circuit ordered Judge Schwab to place less restrictions on confidentiality and to reconsider the 50-50 cost split.

That’s quite a bit. Mind you, what I’ve written above (believe it or not) is an oversimplification of the more recent 3rd Circuit ruling. Stay tuned for future events in this case.

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