Punitive Damages for Illegal Medical Examinations under the ADA

In a recent decision, a Pennsylvania federal court held that an acquiring company conducted over 300 unlawful pre-offer medical exams in violation of the ADA.  Cambria Care Center (“CCC”) had purchased the former Cambria County owned nursing home and engaged Grane Healthcare (a separate, but related entity to CCC) to interview and hire employees for the new facility, which was set to open later in the year.

All 300 of the former county nursing home employees were invited to apply for new employment.More than 300 employees from the acquired company applied for positions with  Grane [the acquiring company]. Grane ultimately hired roughly 225 of the applicants. Every applicant was required to undergo a medical examination. Several unsuccessful applicants for employment filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that Grane had violated the Americans with Disabilities Act of 1990 (ADA) by conducting pre-offer medical examinations of prospective employees and declining to hire some of them because of actual or perceived disabilities.

The record demonstrates that the employees seeking employment with Grane were subjected to a formalized process consisting of unlawful pre-offer medical examinations and illicit solicitations of detailed medical information. The individuals who were subjected to these illegal examinations and inquiries, including those who were ultimately rejected, were deprived of the prophylactic protection from discrimination that § 12112(d) was designed to create.

Section 12112(d) Claims

The provisions of the ADA pertaining to medical examinations and inquiries are codified at 42 U.S.C. § 12112(d). This statutory framework is designed to shield information about an applicant’s medical condition from his or her prospective employer until after an offer of employment is made. Before an offer of employment is extended, an employer may not ask a job applicant to undergo a medical examination or inquire as to whether he or she “is an individual with a disability.”

Unlike § 12112(a), which aims to protect a discrete class of “disabled” persons from discrimination, § 12112(d) contains no language limiting the category of applicants and employees entitled to statutory protection. Consequently, an individual who is subjected to an unlawful medical examination or inquiry can successfully assert a claim under § 12112(d) without establishing the existence of a statutory “disability.” In this vein, an applicant who is rejected by an employer based on information gleaned from an illegal pre-offer medical examination or inquiry may seek redress under § 12112(d)(2)(A) even if that information does not reveal a “disabling” medical condition. A § 12112(d) violation occurs as soon as “an employer conducts an improper medical examination or asks an improper disability-related question, regardless of the results or response.”

Current Charges with the EEOC

None of the seven charges currently being investigated by the EEOC require the employer to have knowledge that the applicant has a disability.  The claim that an employer used an unlawful pre-offer medical exam does not turn on the employer’s knowledge of the applicant's disability -- and in fact does not require that the applicant have a disability.

For those employers utilizing Five Factor Model-based personality tests as an element of their screening and hiring process, the § 12112(d) violation occurs each time the applicant completes the test and the results are submitted to the employer or assessment company.

The ADA’s prohibition against pre-offer medical examinations and inquiries is prophylactic in nature. Congress was concerned that medical information gleaned from such examinations and inquiries could be used to exclude disabled applicants from further consideration for employment. In order to discriminate against an applicant “on the basis of disability,” an employer must know that the applicant is disabled. By denying employers access to medical information until after offers of employment are made, § 12112(d) aims to ensure that such information does not infect the employee-selection process. In this way, § 12112(d) deters covert discrimination against disabled applicants by forcing employers to make hiring decisions before procuring the information upon which discriminatory decisions could be based.

Reducing Employer Risk Exposure

The timing or sequencing of the testing has a significant impact. Employers could reduce risk exposure by administering the test after having provided the applicant with a conditional offer of employment. The employer would still face the risks associated with tests that discriminate against persons with disabilities, but would not face the potential for claims from all applicants who took the test.

Employers sequence the testing first not because they want to include those who are the best fit for the company culture, but because they need a quick, low-cost method of excluding a significant number of applicants. As one employer (Xco) stated in its position statement,

“The [assessment] enables [Xco]  to assess a large volume of applicants cost-effectively and provides consistency in that assessment. Without the [assessment] reviewing and assessing all individual applications would be extremely costly, both in terms of the labor resources needed to conduct such screening and the costs associated with training managers in making the predictive assessments yielded by the [assessment]. It also would result in greater variability in the reliability of the assessments made by individual managers.

Available Alternatives

Xco, and other employers act as if there are only two alternatives – use assessments (quick, low-cost) and don’t use assessments (time-consuming, costly). There are a variety of alternatives, including tests that do not constitute pre-offer medical exams and do not screen out persons with mental illness. Both Starbucks and CVS are prospering without using illegal pre-offer medical examinations and they do not appear to have put themselves at a competitive disadvantage. 

For example, contrast the stock price performance of CVS (no assessment) and Walgreens (assessment) since CVS stopped using assessments following its settlement with the ACLU in Rhode Island. Please see "The CVS Example" in When the First Domino Falls: Consequences to Employers of Embracing Workforce Assessment Solutions

Systemic Risk 

Due to the lack of variability in the online assessments, any discriminatory element that makes its way into the test algorithm – like the screening out of persons with mental disabilities due to the use of the Five Factor Model - is propagated across the entire universe of job applicants.

Congress sought “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2). Covered employers cannot erode those standards by procuring detailed medical information about applicants for employment and contending, at the end of the day, that such information has never been used to the detriment of those applicants. If it were otherwise, disabled individuals would be vulnerable to several forms of discrimination that the ADA was designed to prevent. Since most employment decisions involve elements of discretion, it is relatively easy for an employer to “concoct a plausible reason for not hiring” a particular individual. A decision declaring the admitted § 12112(d) violations to be “harmless” would seriously undermine the ADA’s policy of prophylactic deterrence.

Compensatory Damages 

Before 1991, plaintiffs proceeding under Title VII could only seek “equitable” remedies. Backpay was the primary form of monetary relief available to aggrieved individuals. Section 102 of the Civil Rights Act of 1991 added compensatory and punitive damages to the remedies otherwise available under Title VII and the ADA. The relevant statutory language, permits a “complaining party” to “recover compensatory and punitive damages” from a covered entity responsible for violating § 102 of the ADA. The provisions governing medical examinations and inquiries are included within § 102.

The compensatory damages available to individuals aggrieved by violations of Title I include remuneration for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” The total amount of compensatory and punitive damages available to “each complaining party” is capped at anywhere from $50,000 to $300,000, depending on the number of individuals employed by the covered entity.

Punitive Damages

The Civil Rights Act of 1991 permits any party to “demand a trial by jury” “[i]f a complaining party seeks compensatory or punitive damages” under Title I. The disjunctive wording of this language suggests that a plaintiff can seek an award of punitive damages without seeking an award of compensatory damages. Several Courts of Appeals have concluded that punitive damages may be assessed under the relevant statutory provisions even if no compensatory damages are awarded.

Employers will likely argue that most applicants should receive little, if any, in the way of compensatory damages like backpay. The argument is based on the limited number of positions available as compared with the large number of applicants; only a small percentage of the applicants could have been hired to fill the positions. The expansive scope of compensatory damages – including nonpecuniary losses – plus the availability of punitive damages is designed to provide relief to applicants whose rights have been violated.

As noted below, precluding awards of punitive damages in cases involving no easily quantifiable physical and monetary harm would quell the deterrence that Congress intended to provide when it enacted § 12112(d). The statutory caps on damages ensure against limitless awards in cases of insubstantial harm.

The damages cap for each of the seven companies subject to the EEOC charges is $300,000 per applicant.

A plaintiff seeking punitive damages under Title I must demonstrate that the offending employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to [his or her] federally protected rights.” In Kolstad v. American Dental Association, the Supreme Court construed this language to mean that a covered employer must “discriminate in the face of a perceived risk that its actions will violate federal law” in order to be liable for punitive damages.

Reckless Indifference

Examples of reckless indifference by the seven companies subject to the EEOC charges may include:

• Using an assessment is based on the Five Factor Model of personality, which serves as a basis for categorizing and diagnosing personality disorders in the Diagnostic and Statistical Manual of Mental Disorders.
• Failing to perform any adverse impact or validation studies on persons with disabilities. As Kronos stated in one of its filings in the EEOC litigation, “No adverse impact or validation studies have been performed by Kronos … with respect to potential adverse impact on individuals with disabilities.”
• Continuing to use the assessment for years after having been put on notice that the assessment may be an illegal pre-offer test. Contrast Kroger with CVS.
• Asking questions are neither “directly relevant” to the job nor “plainly job-related.” The questions, designed to reveal information about individuals’ “openness,” “conscientiousness,” “extraversion,” “agreeableness,” and “neuroticism,” based on the Five Factor Model, do not seek information about the ability of an applicant to perform the day-to-day functions of a job.
•  Ignoring the almost 40-year old mandate of the Supreme Court in Albemarle Paper Company v. Moody, 422 US 405 (1975) that a test should be validated on people as similar as possible to those to whom it will be administered (i.e., persons with disabilities). The Court further stated that differential studies should be conducted on minority groups – like persons with mental illnesses - wherever feasible. 
• Relying solely on the statements of the assessment company, without any independent review or verification by the employer. The EEOC fact sheet sets out selection and administration guidelines, including  that an employer: (i) ensure that tests and selection procedures are not adopted casually by managers who know little about these processes; (ii) ensure that the tests are valid, independent of the test vendor’s documentation; and, (iii) determine whether there is an equally effective alternative selection procedure that has less adverse impact and adopt that alternative procedure if a selection procedure screens out a protected group.

Punitive Damages Do Not Require Showing of Tangible Harm

The statutory language does not condition an award of punitive damages on a showing of tangible harm. It is worth noting that the term discriminatory practice” is defined more broadly in relation to Title I than it is in relation to Title VII. Although the term includes only “discrimination” in the Title VII context, it is broad enough to encompass “violations” of the ADA that might not constitute “discrimination.”

The breadth of this language, which specifically defines a term appearing in the portion of the statute governing awards of punitive damages, suggests that Congress intended to provide for assessments of punitive damages against employers responsible for intentionally violating Title I’s prophylactic provisions. Precluding awards of punitive damages in cases involving no “easily quantifiable physical and monetary harm would quell the deterrence that Congress intended” to provide when it enacted § 12112(d). The statutory caps on damages “ensure against limitless awards in cases of insubstantial harm.”

Accordingly, the EEOC can seek punitive damages on behalf of the applicants who were unlawfully subjected to pre-offer medical examinations and inquiries even if those applicants are not otherwise entitled to compensatory damages.

Since the examinations in this case were illegally conducted at the pre-offer stage, the EEOC can seek backpay and compensatory damages on behalf of any applicant rejected based on unlawfully procured medical information, regardless of whether his or her injuries are attributable to “discrimination based on a disability.” Moreover, recovery may be sought for less tangible injuries caused by the examinations and inquiries, irrespective of whether those injuries manifested themselves in the form of personnel decisions (suggesting that an “emotional” injury could constitute “actual damage”).

Risks to Kroger Shareholders

There is material risk to Kroger shareholders and other stakeholders that the company's use of the Kronos assessments over the past 7+ years has created millions of potential plaintiffs, including every person who has applied for a position at one of the many Kroger companies.

Kroger is being investigated by the Equal Employment Opportunity Commission (EEOC) as a consequence of multiple charges filed with the EEOC alleging non-compliance with labor and employment laws, including the Americans with Disabilities Act (ADA). The investigation has been ongoing for more than five years and has generated a number of district court and appellate court decisions as Kroger and the employment assessment company it uses, Kronos, have sought to avoid disclosing information about the assessment and its impact on persons protected by the ADA.

These actions by Kroger and Kronos have generally been unsuccessful; the appellate court decisions have sided with the EEOC and have ordered Kronos to disclose massive amounts of information, including:

1. Any and all documents and data constituting or related to validation studies or validation evidence pertaining to Kronos assessment tests purchased by Kroger, including but not limited to such studies or evidence as they relate to the use of the tests as personnel selection or screening instruments, even if created or performed for other customer(s).
2. The user’s manual and instructions for the use of assessment tests used by Kroger.
3. Any and all documents (if any) related to Kroger, including but not limited to correspondence, notes, and data files, relating to Kroger; its use of the assessment test; results, ratings, or scores of individual test takers; and any validation efforts made thereto.
4. Any and all documents discussing, analyzing or measuring potential adverse impact on persons with disabilities.
5. Any and all documents related to any and all job analysis performed by any person or entity related to any or all position(s) at Kroger.

 See Kroger and Kronos: Chaos and Disorder.

Claims and Damages

Claims against Kroger include:

• Claims that the Kronos assessment is an illegal pre-employment medical examination whose use is prohibited by the ADA.
• Claims that responses to the Kronos assessment, as a medical examination, are confidential medical information, subject to strict safeguards that Kroger has been recklessly ignoring.
• Claims that the Kronos assessment illegally screens out persons with mental disabilities in violation of the ADA.
• Claims that Kroger failed to ensure that the Kronos assessment results accurately reflect the skills, aptitude and other factors that the assessment purports to measure, rather than reflecting an applicant’s impairment.

As a medical examination, it is unlawful for the Kronos assessment to be administered by Kroger to any job applicant prior to a conditional offer of employment being made to that applicant.  Each time the Kronos assessment is so administered to any such applicant, Kroger is violating Title I of the ADA and subjecting itself to claims for back pay, front pay, compensatory damages and injunctive relief. Each person that has been subject to the illegal medical examination of Kroger under Article 1 of the ADA is entitled to seek compensatory and punitive damages of $600,000, in addition to back pay, front pay and recovery of attorneys’ fees.

An employer utilizing the Kronos assessment, like Kroger, is at risk for punitive damages where, as held by the court in Kolstad v. American Dental Association, the “employer has engaged in intentional discrimination and has done so with malice or reckless indifference to the federally protected rights of an aggrieved individual.”

Kroger’s unlawful use of the Unicru assessment subjects the company to material and publicly-disclosable liability and it shareholders to a potentially significant diminution in the value of their shares.

Ignoring EEOC Guidance

Reckless indifference may be show by a variety of methods, including an employer’s failure to comply with the EEOC guidance for testing and selection, pursuant to which employers are encouraged to:

1. Administer tests without regard to race, color, national origin, sex, religion, age, or disability;
2. Ensure that tests are properly validated;
3. Ensure that tests are job-related;
4. Ensure that tests are appropriate for the employer's purpose;
5. If selection procedures screen out a protected group, determine whether there is an equally effective alternative selection procedure that has less adverse impact and adopt that alternative procedure;
6. Keep abreast of changes in job requirements and update the test specifications or selection procedures accordingly; and
7.  Ensure that tests and selection procedures are not adopted casually by managers who know little about these processes.

In a court filing submitted several years ago in connection with its ongoing EEOC litigation, Kronos stated 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.” This filing was served on both the EEOC and Kroger.

Consequently, Kroger cannot confirm that the Kronos assessments have been administered without regard to disability, nor can it confirm that the Kronos assessments have been properly validated. Even more recklessly, Kroger has known that the Kronos assessments have not been validated with respect to potential adverse impact on individuals with disabilities and yet has continued to use the unvalidated assessment for years.

Disregarding Industry Standards

Reckless indifference may also be shown by an employer’s failure to meet industry standards. The general counsel of the Equal Employment Advisory Council, an employer association comprised of more than 300 major corporations and staffed by experienced lawyers and HR professionals with in-depth knowledge in handling EEO and affirmative action compliance issues, set out the following industry standards in a statement made to the EEOC in 2007:

• Tests are to be based on "objective" criteria
• Tests are attractive screening methods "when administered properly"
• A "carefully selected" test that is "properly validated" can provide a great deal of relevant information when "[u]sed in conjunction with other sources of information"
• A few "basic principles that EEAC member companies strive to apply:“
• Ensure each employment test has been properly validated.
• Ensure that the validity study is current and properly documented.
• Avoid overreliance on representations made by test manufacturers regarding test validity and suitability for a particular job.
• Conduct periodic audits of employment selection testing procedures to monitor for
• possible disparate impact
• significant changes in jobs
• outdated validity studies
• other potential problems

As set out in the many documents filed in the ongoing litigation among the EEOC, Kroger and Kronos, few, if any, of these basic industry principles have been followed by Kroger. For example:

1. Kroger was unable to provide the EEOC with any validation studies, whether current or not or properly documented or not; 
2. There was no information provided that demonstrated periodic audits by Kroger of the Kronos assessment to monitor for possible disparate impact or outdated validity studies; and
3. Kroger utilizes the Kronos assessment, on its own, as the basis for rejecting applicants – the assessment was not “used in conjunction with other sources of information.” 
4. Kroger seemingly relied solely on the representations of Kronos regarding test validity and suitability.

Kroger’s knowing failure to meet many the basic principles set out by the industry and turning a blind eye towards the known discriminatory impact of the Kronos assessment is demonstrably reckless.

He Said, She Said

A key element in both the EEOC and EEAC 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 to the EEOC dated February 9, 2009, sent by Kroger’s counsel 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 admits a reliance on Kronos's representations and indicates no independent validation effort on the part of Kroger.

The quoted sentence from the February 9, 2009 letter of Kroger's counsel is puzzling, given the Kronos statement mentioned previously that it is “impossible” to measure disparate impact on people who have disabilities. Which is it? How can Kronos assure Kroger that there is no disparate impact, as Kroger’s counsel stated to the EEOC, if, according to Kronos, it is impossible to measure disparate impact?

Ignoring Supreme Court Precedent

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.” As noted above, such a claim is a red herring. Given the wealth of scholarship and data concerning the interrelationship between the FFM model and diagnosing mental illness (please see ADA, FFM and DSM), it seems more likely that Kronos was unwilling to spend the money to determine the impact of the Unicru assessment on persons with disabilities.  Either that, or Kronos knows what the results would demonstrate – that the assessment is a medical examination and its administration by employers, including Kroger, results in disparate treatment of, and has a disparate impact on, persons with mental illness.

As evidenced by the scholarship on the use of the FFM to diagnose mental illness previously discussed, 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 …

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. The Supreme Court cited the Standards of the American Psychological Association and pointed out that a test should be validated on people as similar as possible to those to whom it will be administered. The Court further stated that differential studies should be conducted on minority groups wherever feasible.

Substitute (i) Kroger for Albemarle Paper Company and (ii) Kronos assessment for the Wonderlic test in the Albemarle Paper Company decision and one sees few, if any, differences. Like Albemarle Paper Company, Kroger made no attempt to validate the test for job-relatedness and arbitrarily adopted cut-off points. Like Albemarle Paper Company, neither Kroger nor Kronos conducted validation studies on persons with mental illness.

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)? Reckless.

Damages and Indemnification Challenges for Employers

Claims by Individuals

An employer using a personality assessment as part of its recruiting and hiring process may be subject to a variety of legal claims and charges by applicants and employees. These include claims based on alleged violations of Title 1 of the Americans with Disabilities Act, 42 U.S.C. § 12112 (ADA), including, without limitation:

• The assessment is a pre-offer medical examination that is prohibited by 42 U.S.C. §12112 (d)(2);
• The assessment screens out or tends to screen out an individual with a disability or a class of individuals with disabilities and the Assessment is neither job-related nor consistent with business necessity, violating 42 U.S.C. § 12112(b)(6);
• The employer fails to select and administer the assessment in the most effective manner to ensure that the assessment results accurately reflect the skills, aptitude or whatever other factor that the assessment purports to measure, rather than reflecting an applicant’s impairment, and, as a result, violates 42 U.S.C. § 12112(b)(7); and,
• The employer fails (i) to maintain the information collected from the assessment regarding the medical condition or history of the applicant on separate forms and in separate medical files and (ii) to treat such information as a confidential medical record, violating 29 C.F.R. § 1630.14(b)(1).

Damages available under Title I of the ADA include claims for back pay, front pay, compensatory damages and injunctive relief. Punitive damages may also be available if the employer has engaged in intentional discrimination against a protected class and has done so with reckless indifference to the federally protected rights of persons in that class (Please see the PunitiveDamages post).

If the assessment is determined to be a medical examination, each applicant (not just those who have a mental disability) who took the assessment has a claim against the employer under Title I of the ADA. Courts have repeatedly held that claims of improper disability-related inquiries or medical examinations, improper disclosure of confidential medical information, or retaliation may be brought by any applicant or employee, not just individuals with disabilities. As noted in the WhatAre the Issues post, some companies have more than one million applicants each year.

Indemnification Challenges

Any employer that continues to use pre-employment personality tests should seek indemnification from the testing company whose product it uses. If the employer is currently indemnified by the testing company, the employer should review the limits, restrictions and conditions of that indemnity.

The success of the testing companies in marketing employment personality tests over the past twenty years has created "systemic risk" for its customers. If one employer has violated the law and subjected itself to significant liability as a consequence of its use of an assessment provided by a testing company, then all customers of that testing company are similarly at risk.

Even if testing companies were willing to provide indemnification to all customers, those customers will have to determine whether the testing companies and their insurers have adequate resources to indemnify all customers. As Kenexa, an testing company now owned by IBM), consistently noted in its annual 10-K risk factor disclosures:

The failure of our solutions to comply with employment laws may require us to indemnify our customers, which may harm our business. Some of our customer contracts contain indemnification provisions that require us to indemnify our customers against claims of non-compliance with employment laws related to hiring. To the extent these claims are successful and exceed our insurance coverages, these obligations would have a negative impact on our cash flow, results of operation and financial condition.

Punitive Damages

An employer utilizing an FFM-based pre-employment assessment is at risk for punitive damages where, as held by the Supreme Court in 1999, the “employer has engaged in intentional discrimination and has done so with malice or reckless indifference to the federally protected rights of an aggrieved individual.”

 As noted in the What Are the Issues post, the assessments are intentionally designed to reveal and accept “normal” personalities and reveal and reject persons with mental disabilities.  

Reckless indifference may be show by a variety of methods, including an employer’s failure to comply with the EEOC guidance, including:

• Administering tests without regard to disability;
• Ensuring that tests are properly validated;
• Ensuring that tests are job-related;
• Ensuring that tests are appropriate for the employer's purpose; and
• Ensuring that tests and selection procedures are not adopted casually by managers who know little about these processes.

Reckless indifference may also be shown by an employer’s failure to meet industry standards. In a statement made in 2007, the general counsel of the employer-funded Equal Employment Advisory Council set out the following industry standards:

• Tests must be based on "objective" criteria
• A "carefully selected" test that is "properly validated" can provide a great deal of relevant information when "[u]sed in conjunction with other sources of information"
• Ensuring each employment test has been properly validated.
• Avoiding overreliance on representations made by test manufacturers regarding test validity and suitability for a particular job.
• Conducting periodic audits of employment selection testing procedures to monitor for possible disparate impact, outdated validity studies and other potential problems

The Karraker decision provided clear guidance to employers that utilize personality tests. At a minimum, employers should independently determine whether the tests were medical examinations under Title I of the ADA and they should independently validate that the tests do not discriminate against disabled applicants.

As noted in the What Are the Issues post, there is no evidence that employers or assessment test providers have done any studies to determine the impact of assessments on persons with mental illness

The failure of employers to follow Supreme Court precedent that (i) requires validation of an employment test, (ii) prohibits arbitrary cut-off points, and (iii) requires differential studies of the impact of the test on protected classes (persons with mental illness) – reckless.