The EEOC’s subpoena power is broad. But just how broad has been the subject of debate in recent years. On September 14, 2012, the Third Circuit Court of Appeals issued an opinion that definitely falls on the “broad powers” end of the spectrum.
The case, EEOC v. Kroger, involves allegedly discriminatory assessment tests used by Kroger as part of its hiring process. The tests were created by a company called Kronos, Inc. The district court ruled that the EEOC could not subpoena materials from Kronos that did not directly relate to the test it had developed for Kroger.
The EEOC appealed the decision and the 3d Circuit overturned it. The 3d Circuit ruled that Kronos had to produce such documents “even if not directly linked to Kroger” because they could “reveal that the assessment had an adverse impact on disabled applicants or they could assist the EEOC in evaluating whether Kroger’s use of the test constituted an unlawful employment action.”
Two points to note from this case. First, the general dangers associated with assessment tests used for hiring. Employers are on the hook for tests that they do not create. The entity that the employer hires to create valid tests may be a credible, legitimate authority but, at the end of the day, it’s not that company’s problem when the employer is sued.
Second, this case presents yet another example of the aggressive litigation tactics employed by the EEOC. The Charge that initiated the litigation was filed in June 2007–more than 5 years ago. Yet, here we are, reading an appellate court opinion on discovery issues. (This, by the way, is the second time a discovery decision was appealed to the 3d Cir.). Once the EEOC pulls the litigation trigger, there’s virtually no way to get it to back down.