by Burton J. Fishman

In 2007, the Equal Employment Opportunity Commission (EEOC) filed suit against Kroger, the grocery chain, because it rejected an applicant for a “cashier, bagger, stocker” position in part because of a poor score on an orally administered “personality trait” test prepared by Kronos, Inc. The applicant had speech and hearing difficulties and claimed that the rejection was in violation of the Americans with Disabilities Act (ADA). A simple enough beginning.

The case has yet to be heard because it has been mired in a dispute of significant proportions and considerable significance regarding the discovery process (the pretrial exchange of evidence). In essence, the EEOC has expanded the single-plaintiff hiring case into a suit requiring Kronos to disclose virtually all its tests (regardless of whether they were offered to or used by Kroger), validation studies, manuals, and other related materials. After a series of appeals and remands (in which the case was sent back to the lower court), the only limitation permitted by the 3rd Circuit so far is that tests allegedly relating to an adverse impact based on race need not be produced. EEOC v. Kronos Inc., 2012 U.S. App. LEXIS 19320 (9/14/12).

To some, this is but the most recent example of an overreaching EEOC abetted by a court that recognizes no limits on an enforcement agency. To others, it’s in the line of recent decisions permitting broad EEOC discovery. To be sure, the scope of the court’s order in the Kronos case is, in the words of the oft-overruled district court judge who tried to implement the 3rd Circuit’s ruling, “breathtaking,” but the EEOC has a history of pursuing the broader implications of tests used on a nationwide basis. Nonetheless, the refusal of the appellate court to allow the expansion of discovery to race cases gives employers some hope that there is a limit to the EEOC’s hunger for information beyond the scope of a charge.

Still to be resolved (and not yet addressed by the courts) are vexing issues on (1) the rights of a test’s creator and its clients to confidentiality and (2) an enforcement agency’s duty to conduct a thorough investigation. Most employers have little faith in the EEOC’s safeguards to protect test materials.

Then there’s the Freedom of Information Act (FOIA). Do psychologists have an ethical obligation to safeguard the tests they design and administer? Must a federal agency disclose under the FOIA the tests that it receives despite previous assurances of confidentiality to the subpoenaed entity?

What began as the rejection of an applicant who appeared to have difficulty communicating with customers may grow into the ultimate test of the EEOC’s discovery authority in the area of psychological tests and the breadth of third-party subpoenas.

Burton J. Fishman is of counsel to Washington, D.C.’s, Fortney & Scott, LLC, and is recognized as one of the nation’s leading authorities on workplace law. A former deputy solicitor of the U.S. Department of Labor, his experience extends to the full spectrum of employment and labor matters.