The settlement was announced on 8/24/15 in an EEOC news release, which may be read at https://www.eeoc.gov/newsroom/target-corporation-pay-28-million-resolve-eeoc-discrimination-finding. The EEOC alleged that three employment assessments formerly used by Target have adverse impact based on race and sex for exempt-level jobs, and that these tests were not job related and consistent with business necessity in accordance with Title VII. The EEOC also found reasonable cause to believe that one of the assessments also violated the ADA. They did not cite what any of these assessments were, but indicated that the assessment in question related to the ADA was performed by psychologists and constituted an illegal pre-employment medical exam. The EEOC also alleged that Target failed to maintain records needed in order to compute adverse impact statistics.
Target agreed to pay a claims administrator to divide the 2.8 million among individuals as deemed appropriate by him/her. Target also agreed to change its applicant tracking system to allow for calculation of adverse impact statistics, to perform validity studies for all future assessments for exempt-level jobs, and to retain an experienced outside consultant to provide a minimum of two hours of training at least once a year to all personnel involved in the development and implementation of assessment instruments on topics related to adverse impact record keeping and pre-employment medical exams.
As far as news releases go, this one was sparse. There was no mention, for example, of the type of assessment the psychologists administered that constituted the illegal pre-hire medical inquiry. But it got me to thinking about Soroka v. Dayton-Hudson Corp. (1989) [Cal. H143579-3], a lawsuit which challenged Dayton-Hudson’s (Target’s then parent company) with a violations of the 4th Amendment (privacy) for use of an instrument called “Psychscreen” to screen out applicants for the position of store security officer (SSO). Psychscreen was actually a combination of the California Personality Inventory and the MMPI II. The main concerns in that case were items relating to sex and religious beliefs. However, there are also items on both the CPI and MMPI that would constitute inquiries into past or current psychological and physical issues, although these were not challenged in that case.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology
