Once again, highlighting the potential risk to employers of using employee selection tests to filter applicants, the Third Circuit recently enforced an Equal Employment Opportunity Commission (“EEOC”) subpoena directed to test-maker Kronos, Inc., in a disability discrimination case. EEOC v. Kronos Incorporated, Civ. Act. No. 11-2834 (September 14, 2012, Third Circuit). The involved employer acknowledged that the Customer Service Assessment test created and administered by Kronos had factored into the decision to deny employment to the applicant.
Kronos objected to the EEOC’s subpoena on the basis that the information requested was irrelevant, and production would require Kronos to disclose protected trade secret information. Rejecting those arguments, the court ruled that “evidence that would ‘cast light on’ either a claim for disparate treatment or disparate impact caused by the use of Kronos’ assessments would be relevant,” and stressed the ADA prohibition on the use of employment tests that “‘screen out or tend to screen out’ disabled people and the use of the test is not ‘job-related for the position in question’ and consistent with business necessity.’” Importantly, the Third Circuit found that the District Court had abused its discretion in limiting the scope of the subpoena to documents pertaining to the assessment tests purchased by the grocery store chain, or that the store relied upon in creating or implementing the disputed tests. The Third Circuit also rejected the District Court’s narrowing the subpoena to disability-related information. It reasoned that information about Kronos’ testing methods would aid in determining whether such tests were discriminatory.
The Kronos decision highlights the risk that improperly validated or administered selection tests may trigger employer liability for employment discrimination. When using selection tests, or when contracting with others to administer such tests, employers need to make sure of three things in particular: First, the tests must have been properly validated for the specific positions and purposes to be used (meaning the test or other selection device must be job-related and its results appropriate for the employer’s purpose). Second, the tests must be administered without regard to race, color, national origin, sex, religion, age, disability, or any other protected characteristic. Third, the tests must be routinely reviewed to be sure that they continue to be non-discriminatory as applied and from an adverse impact standpoint.