The Third Circuit Court of Appeals recently overturned a District Court decision to narrow the scope of a subpoena issued by the EEOC in a disability discrimination lawsuit it filed over the hiring practices at a national grocery chain. The Third Circuit’s decision allowed the EEOC to obtain documents other than the hiring assessment tests created for the grocery chain by an outside company.

The case stems from a charge of discrimination filed in June 2007 against the Kroger grocery chain by a hearing and speech impaired applicant. At the time, Kroger required applicants to take a “Customer Service Assessment” test created by Kronos Incorporated. During the course of its investigation into Kroger’s hiring practices, the EEOC issued a third-party subpoena to Kronos, seeking information regarding the creation of the assessment tests, including validation studies. The EEOC later expanded the subpoena to seek nationwide data on the use of the test and its impact on individuals of different races and on disabled individuals. In an earlier ruling by the Third Circuit, the court upheld the geographic scope of the subpoena but refused to allow the EEOC to target race-based information since there were no allegations of race discrimination in the original, underlying charge.

When Third Circuit remanded the case back to the District Court, the parties again disagreed as to the scope of the subpoena – specifically, whether the information sought would be limited to data showing the tests’ impact on individuals with disabilities and to data regarding only those tests that Kronos created for Kroger.

The Third Circuit ruled that the documents sought should not be limited to those tests that Kronos created for Kroger. Instead, documents regarding other tests could be relevant to the extent that “they could reveal that the assessment had an adverse impact on disabled applicants” and, thus, whether Kroger’s use of the tests could have violated the Americans with Disabilities Act.

The court then ruled that the information sought should not have been limited to studies and evidence relating to disabilities or individuals with disabilities. Instead, the court found that it was proper for the EEOC to seek information about how the tests worked in general, “including information about the types of characteristics they screen out and how those characteristics relate to the applicant’s ability to fulfill his or her duties for the prospective position.”

While the court noted that this information could reveal information related to race – which the court had previously determined to be impermissible – the court found that this risk was “not inherently problematic so long as the requests do not specifically target documents related to race.” The court noted, however, that, if the documents produced by Kronos reveal “that there was a racially related impact on hiring, then . . . the EEOC need not ignore this new evidence.”While many courts have recently dealt blows to the EEOC’s efforts to collect potentially relevant documentary evidence, this decision marks the second time in this case that the Third Circuit has stepped in to uphold sweeping discovery requests by the EEOC. Employers within the Third Circuit should be mindful of decisions like this when dealing with the EEOC.