Appeals Court Expands|Scope of EEOC Subpoena

     (CN) – The 3rd Circuit substantially expanded the scope of a subpoena seeking information about the allegedly discriminatory hiring assessments that Kronos Inc. made for Kroger Food Stores.

     The Equal Employment Opportunity Commission sought the data for its investigation of whether the hiring tests used by Kroger discriminated against disabled or minority candidates.
     One candidate, Vicky Sandy, had filed a complaint with the EEOC after Kroger denied her application for a job as a cashier, bagger and stocker.
     Kroger’s assessment test, made by Kronos, measures interpersonal skills, including whether the applicant acts “cheerful, polite and friendly,” listens carefully, and communicates well.
     Sandy, who is hearing- and speech-impaired, did not score well on the assessment, which instructed her interviewer to listen for “correct language” and “clear enunciation,” among other things.
     An article written by a Kronos employee indicated that minority applicants also performed poorly on the assessment.
     The EEOC issued a subpoena asking Kronos to documents related to the hiring tests it sold Kroger, including validation studies and test manuals.
     U.S. District Judge Arthur Schwab found the scope of the subpoena “breathtaking – potentially including most of Kronos’ business documents, covering its entire client base, with no time, geographic, or job description limitations.”
     The judge limited the request to Kroger-related work that occurred in West Virginia from January 2006 through May 2007. He also ordered the parties to enter into confidentiality agreements to protect Kronos’ trade secrets.
     The federal appeals court in Philadelphia found the revised subpoena too narrow.
     “The District Court applied too restrictive a standard of relevance,” the court wrote, and it improperly limited the scope to West Virginia.
     “An employer’s nationwide use of a practice under investigation supports a subpoena for nationwide data on that practice,” Judge Michael Chagares wrote for the three-judge panel.

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