The case arose from a charge filed by Vicky Sands with the EEOC in 2007. The EEOC has converted Ms. Sands' investigation into a systemic investigation and has combined her charge with at least two other charges. The systemic investigation is being handled out of the EEOC's Baltimore office. Please see Heed Those Warnings About EEOC Systemic Investigations! for a prominent employment defense attorney's view of systemic investigations.
No, Really Nothing to Hide
Given the 5+ years of litigation over disclosing information to the EEOC, one might wonder if Kroger and Kronos have something to hide? The answer, paradoxically, may be that Kroger and Kronos have nothing - really nothing - that they are trying to hide.
Risks to Kroger Shareholders, a key element in both the EEOC and EEAC (an employer association) guidance is the responsibility of the employer (Kroger) to independently review the assessment and avoid reliance on the representations of the assessment provider. Did Kroger conduct such an independent review? It would appear not.
In a letter sent by Kroger's counsel to the EEOC dated February 9, 2009, it states, “Unicru, the company that developed the assessment [and subsequently acquired by Kronos], has informed … [Kroger] that the assessment has been fully and appropriately validated, and that there is no disparate impact.” That statement indicates no independent validation effort on the part of Kroger.
The quotation above is both puzzling and damming. In a court filing submitted in the litigation brought by the EEOC, Kronos states that “[n]o adverse impact or validation studies have been performed by Kronos, or to Kronos’ knowledge, by or for Kroger with respect to potential adverse impact on individuals with disabilities.”
How can Kroger tell the EEOC that "the assessment has been fully and appropriately validated, and that there is no disparate impact," if, according to Kronos, "[n]o adverse impact or validation studies have been performed by Kronos, or to Kronos’ knowledge, by or for Kroger with respect to potential adverse impact on individuals with disabilities.”
A Disingenuous Claim
In a petition to revoke an EEOC subpoena filed on October 16, 2008, Kronos claims that there is “no known method … to ascertain adverse impact against the entire generic category of disabilities.” Such a claim is disingenuous at best.
As evidenced by the scholarship on the use of the five-factor model of personality (FFM) to diagnose mental illness (please see ADA, FFM and DSM), there are no barriers to testing the use of the FFM in the Kronos assessment to determine its impact on persons with mental illness. As noted by the authors of “Veiled Barriers: Pre-EmploymentTesting and Disability” published by the Journal of Rehabilitation Administration in 2006:
[S]tudies of sub-groups, such as individuals with mental illnesses or cognitive impairments could be conducted to determine the potential, and perhaps likelihood for, pre-employment test results unfairly penalizing these individuals in the employee selection and hiring stages …Such studies of sub-groups (i.e., persons suffering from discrete mental illnesses like major depressive disorder, bipolar disorder, schizophrenia, PTSD, etc.) are, in fact, mandated. In Albemarle Paper Company v. Moody, the Supreme Court addressed a case in which an employer implemented a test (Wonderlic) on the theory that a certain verbal intelligence was called for by the increasing sophistication of the plant's operations. The company made no attempt to validate the test for job-relatedness, and simply adopted the national "norm" score as a cut-off point for new job applicants.
Kroger’s failure to follow Supreme Court precedent that (i) requires validation of an employment test (Unicru assessment), (ii) prohibits arbitrary cut-off points, and (iii) requires differential studies of the impact of the test on protected classes (persons with mental illness) suggests they company has nothing - no independent validation, no differential studies - to hide.