Question: Soroka v. Dayton Hudson Corp. 235 Cal. App. 3d 654 (1991)

Plaintiffs/Appellants Sibi Soroka, Sue Urry, and William D'Arcangelo sued Dayton Hudson, claiming that its practice of requiring Target Store security officer applicants to pass a psychological screening (the Psychoscreen) discriminated on the basis of race, gender, religion and physical handicap. The appellants took the test. Soroka was hired; Urry, a Mormon, and D'Arcangelo were not hired. The main functions of the store security officers (SSOs) are to observe, apprehend, and arrest shoplifters. The SSOs carry handcuffs and are allowed to use force against a suspect in self-defense. Target contends that good judgment and emotional stability are important skills for the SSOs. The purpose of the Psychoscreen, Target argues, is to screen out applicants who are emotionally unstable, who may put customers or employees in jeopardy, or who will not take direction or follow store procedures.

The test used is a combination of two different accepted psychological tests. The resulting test includes questions about the applicant's religious attitudes, such as "my soul sometimes leaves my body. . . . I have no patience with people who believe there is only one true religion. . . . Everything is turning out just like the prophets of the Bible said it would." The test also includes questions regarding the applicant's sexual preference, such as "I have been in trouble one or more times because of my sex behavior. . . . I am very attracted to members of my own sex. . . . I like to talk about sex. . . .Many of my dreams are about sex matters." Although the tests are scored by outside consultants and applicants are rated as to emotional stability, interpersonal style, addiction potential, dependability and reliability, and socialization, Target does not receive individual responses to the questions. Hiring decisions may be made on the basis of these recommendations, although the recommendations may be overridden. The court reviewed the link between the test and any related business necessity and found that the test did not serve a sufficient job-related purpose.

Reardon, J.

Soroka argues that Target has not demonstrated that its Psychoscreen questions are job-related, that is, that they provide information relevant to the emotional stability of its SSO applicants. Having considered the religious belief and sexual orientation questions carefully, we find this contention. . .persuasive. Although the state right of privacy is broader than the federal right, California courts construing article I, section I of the California constitution have looked to federal precedents for guidance. Under the lower federal standard, employees may not be compelled to submit to a violation of their right to privacy unless a clear, direct nexus exists between the nature of the employee's duty and the nature of the violation. We are satisfied that this nexus requirement applies with even greater force under article I, section I. . . .[W]e turn to the voter's interpretation of article I, section I.

The ballot argument, the only legislative history for the privacy amendment, specifically states that one purpose of the constitutional right of privacy is to prevent businesses from "collecting unnecessary information about us." It also asserts that the right to privacy would "preclude the collection of extraneous or frivolous information." Thus, the ballot language requires that the information collected be necessary to achieve the purpose for which the information has been gathered. The California Supreme Court has also recognized this nexus requirement. When it found that public employees could not be compelled to take a polygraph test, it criticized the questions asked as both highly personal and unrelated to any employment duties. It found that a public employer may require its workers to answer some questions but only those that specifically, directly, and narrowly relate to the performance of the employee's official duties. While Target unquestionably has an interest in employing emotionally stable persons to be SSOs, testing applicants about their religious beliefs and sexual orientation does not further this interest. To justify the invasion of privacy resulting from the use of the Psychoscreen, Target must demonstrate a compelling interest and must establish that the test serves a jobrelated interest. [The court found that Target did not do so.

1. Why do you think Target administered this test? What did it learn about each applicant as a result of the test?

2. Is there any relevance between the responses to the questions asked and the individual's ability to perform the job?

3. If Target's main purpose was to determine emotional stability, what other method could it have used to obtain this information about its applicants?