Special Master Tabbed for Kroger Bias Suit

(CN) - A special master will handle claims that Kroger Food Stores' hiring assessments discriminate against disabled and minority candidates, a federal judge ruled.

Vicky Sandy, who is hearing- and speech-impaired, filed a complaint with the Equal Employment Opportunity Commission after a Kroger supermarket in West Virginia denied her application for a job as a cashier, bagger and stocker in 2007.

Kroger's personality test - made by Kronos, a workforce management company based in Chelmsford, Mass. - allegedly measures whether the applicant acts "cheerful, polite and friendly," listens carefully, and communicates well.

Sandy said she did not score well on the assessment, which instructed her interviewer to listen for "correct language" and "clear enunciation."

A Kronos employee reported that minority applicants also performed poorly on the assessment.

The EEOC issued a subpoena asking Kronos for documents related to the hiring tests it sold Kroger - with no time, geographic or job description limitations.

U.S. District Judge Arthur Schwab, in Pittsburgh, finding the scope of the subpoena "breathtaking," limited the request to Kroger-related work that occurred in West Virginia from January 2006 through May 2007, and ordered the parties to enter into confidentiality agreements to protect Kronos' trade secrets.

The 3rd Circuit expanded the scope of the subpoena on Sept. 7, 2010.

"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.

Judge Schwab ordered Kronos to produce validation studies, the tests' manuals and instructions, any and all documents related to Kroger, and all files measuring potential adverse impact on people with disabilities. Schwab also authorized the EEOC to disclose confidential information to its outside experts and to the court under seal, but not to Kronos.

The same day, Aug. 19 this year, Schwab announced his intention to appoint special master Louis Kushner to issue a report and recommendation on Kronos' expected costs of compliance with the subpoena.

Within a week, the EEOC objected that "such an appointment is not authorized by the rules, would result in unnecessary expense, and there are no exceptional circumstances supporting such an appointment."

Schwab tossed those claims on Sept. 3, holding that the court's current caseload - six judges each receiving about 30 additional civil cases this month - justifies the appointment.

The EEOC's objection to expending "scarce resources" on special master fees also failed.

"This argument rings hollow because instead of working through, or attempting to work through, the issue of compliance with an administrative subpoena to a non-party, the EEOC has aggressively pursued its cause including two appeals to the U.S. Court of Appeals for the 3rd Circuit, while the record does not indicate that the allegedly aggrieved plaintiff's cause of action has moved forward, which does not appear to the most judicious use of the alleged 'scarce' resources of the EEOC," Schwab wrote.

Kushner shall file a notice of conflict status by Sept. 16.

Kroger, based in Cincinnati, reported $96.8 billion in revenue in 2012.

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