Soroka v. Dayton Hudson Corp.
| Decision Date | 25 October 1991 |
| Docket Number | No. A052157,A052157 |
| Citation | 13 Cal.App.4th 192,1 Cal.Rptr.2d 77 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 235 Cal.App.3d 654, 13 Cal.App.4th 192, 18 Cal.App.4th 1200, 7 Cal.App.4th 203 235 Cal.App.3d 654, 13 Cal.App.4th 192, 18 Cal.App.4th 1200, 7 Cal.App.4th 203, 58 Empl. Prac. Dec. P 41,270, 60 USLW 2322, 120 Lab.Cas. P 56,762, 6 IER Cases 1491 Sibi SOROKA et al., Plaintiffs and Appellants, v. DAYTON HUDSON CORPORATION, Defendant and Respondent. |
Saperstein, Seligman, Mayeda & Larkin, Brad Seligman, Elaine B. Feingold, Katharine S. Miller, Oakland, for plaintiffs and appellants.
Laurence F. Pulgram, Elizabeth H. Wang, Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, Edward M. Chen, American Civil Liberties Union of Northern California, Inc., for amicus curiae on behalf of plaintiffs and appellants.
Littler, Mendelson, Fastiff & Tichy, Robert F. Millman, Nancy L. Ober, Henry D. Lederman, Wendy L. Tice-Wallner, Scott J. Wenner, San Francisco, for defendant and respondent.
Appellants Sibi Soroka, Sue Urry and William d'Arcangelo 1 filed a class action challenging respondent Dayton Hudson Corporation's practice of requiring Target Store security officer applicants to pass a psychological screening. The trial court denied Soroka's motion for a preliminary injunction to prohibit the use of this screening pending the outcome of this litigation. It also denied Soroka's motion for class certification and granted Dayton Hudson Corporation's motion to deny class certification. Soroka appeals from these orders, 2 contending that a preliminary injunction should issue because he is likely to prevail on the merits of his constitutional and statutory claims. He also urges us to find that the trial court should have certified the class. The American Civil Liberties Union (ACLU) filed an amicus brief in support of Soroka's constitutional right to privacy claims. We reverse the trial court's order denying a preliminary injunction and remand the matter to the trial court for further proceedings on class certification.
I. FACTS
Respondent Dayton Hudson Corporation owns and operates Target Stores throughout California and the United States. 3 Job applicants for store security officer (SSO) positions must, as a condition of employment, take a psychological test that Target calls the "Psychscreen." An SSO's main function is to observe, apprehend and arrest suspected shoplifters. An SSO is not armed, but carries handcuffs and may use force against a suspect in self-defense. Target views good judgment and emotional stability as important SSO job skills. It intends the Psychscreen to screen out SSO applicants who are emotionally unstable, who may put customers or employees in jeopardy, or who will not take direction and follow Target procedures.
The Psychscreen is a combination of the Minnesota Multiphasic Personality Inventory and the California Psychological Inventory. Both of these tests have been used to screen out emotionally unfit applicants for public safety positions such as police officers, correctional officers, pilots, air traffic controllers and nuclear power plant operators. 4 The test is composed of 704 true-false questions. At Target, the test administrator is told to instruct applicants to answer every question.
The test includes questions about an applicant's religious attitudes, such as:
The test includes questions that might reveal an applicant's sexual orientation, such as: 5
An SSO's completed test is scored by the consulting psychologist firm of Martin-McAllister. The firm interprets test responses and rates the applicant on five traits: emotional stability, interpersonal style, addiction potential, dependability and reliability, and socialization--i.e., a tendency to follow established rules. Martin-McAllister sends a form to Target rating the applicant on these five traits and recommending whether to hire the applicant. Hiring decisions are made on the basis of these recommendations, although the recommendations may be overridden. Target does not receive any responses to specific questions. It has never conducted a formal validation study of the Psychscreen, but before it implemented the test, Target tested 17 or 18 of its more successful SSO's.
Appellants Sibi Soroka, Susan Urry and William d'Arcangelo were applicants for SSO positions when they took the Psychscreen. All three were upset by the nature of the Psychscreen questions. Soroka was hired by Target. Urry--a Mormon--and d'Arcangelo were not hired. In August 1989, Soroka filed a charge that use of the Psychscreen discriminated on the basis of race, sex, religion and physical handicap with the Department of Fair Employment and Housing.
Having exhausted their administrative remedies, Soroka, Urry and d'Arcangelo filed a class action against Target in September 1989 to challenge its use of the Psychscreen. The complaint was amended twice. The second amended complaint alleged that the test asked invasive questions that were not job-related. Soroka alleged causes of action for violation of the constitutional right to privacy, invasion of privacy, disclosure of confidential medical information, fraud, negligent misrepresentation, intentional and negligent infliction of emotional distress, violation of the Fair Employment and Housing Act, violation of sections 1101 and 1102 of the Labor Code, and unfair business practices. This complaint prayed for both damages and injunctive relief.
In June 1990, Soroka moved for a preliminary injunction to prohibit Target from using the Psychscreen during the pendency of the action. A professional psychologist submitted a declaration opining that use of the test was unjustified and improper, resulting in faulty assessments to the detriment of job applicants. He concluded that its use violated basic professional standards and that it had not been demonstrated to be reliable or valid as an employment evaluation. For example, one of the two tests on which the Psychscreen was based was designed for use only in hospital or clinical settings. Soroka noted that two of Target's experts had previously opined that the Minnesota Multiphasic Personality Inventory was virtually useless as a preemployment screening device. It was also suggested that the Psychscreen resulted in a 61 percent rate of false positives--that is that more than 6 in 10 qualified applicants for SSO positions were not hired.
Target's experts submitted declarations contesting these conclusions and favoring the use of the Psychscreen as an employment screening device. Some Target officials believed that use of this test has increased the quality and performance of its SSO's. However, others testified that they did not believe that there had been a problem with the reliability of SSO applicants before the Psychscreen was implemented. Target's vice president of loss prevention was unable to link changes in asset protection specifically to use of the Psychscreen. In rebuttal, Soroka's experts were critical of the conclusions of Target's experts. One rebuttal expert noted that some of the intrusive, non-job-related questions had been deleted from a revised form of the test because they were offensive, invasive and added little to the test's validity.
The trial court denied Soroka's motion to certify the class and granted Target's motion to deny class certification. The court concluded that the case was not an appropriate one for certification because of the predominantly individual nature of the claims. It found no well-defined community of interest among class members. The court also denied the motion because it could not conclude that the class would be fairly and adequately represented by Soroka, Urry, d'Arcangelo and their counsel, although it noted that counsel was extremely qualified in employment litigation. The court stated that because Soroka's answers to the Psychscreen test that he took had twice been made public, that disclosure would likely be an issue of substantial import to the invasion of privacy claims at trial.
The trial court also denied Soroka's motion for preliminary injunction. It ruled that he had not demonstrated a reasonable probability of prevailing on the merits of the constitutional or statutory claims at a trial. The court found that Target demonstrated a legitimate interest in psychologically screening applicants for security positions to minimize the potential danger to its customers and others. It also found that...
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...who claimed the test, which included probing personal questions, violated their privacy. See, e.g., Soroka v. Dayton Hudson Corp ., 1 Cal. Rptr. 2d 77 (Cal. 1991), review granted and opinion superseded , 822 P.2d 1327 (Cal. 1992), review dismissed , 862 P.2d 148 (1993) (upholding $2 million......
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...who claimed the test, which included probing personal questions, violated their privacy. See, e.g., Soroka v. Dayton Hudson Corp ., 1 Cal. Rptr. 2d 77 (Cal. 1991), review granted and opinion superseded , 822 P.2d 1327 (Cal. 1992), review dismissed , 862 P.2d 148 (1993) (upholding $2 million......
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Privacy issues in the workplace
...who claimed the test, which included probing personal questions, violated their privacy. See, e.g., Soroka v. Dayton Hudson Corp ., 1 Cal. Rptr. 2d 77 (Cal. 1991), review granted and opinion superseded , 822 P.2d 1327 (Cal. 1992), review dismissed , 862 P.2d 148 (1993) (upholding $2 million......
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