"The main lesson is: Don't solely rely on those tests to hire somebody," Francine W. Breckenridge, a labor and employment partner at Strasburger Attorneys at Law, in Austin, Texas, told ABC News. "If you are going to use it as a factor in employment consideration, you need to make sure the tests results are not disproportionately impacting a protected class."
As far as the Sandy case goes, Sabine, the law professor, is unsure whether the case counts as discrimination. "The important question seems to me to be whether the test in some way disadvantages hearing- and speech-impaired persons," she said. "If the test itself was discriminatory, there is a good argument for an ADA violation. But if the test does not disadvantage hearing- and speech-impaired persons, it seems to me the employer can legitimately refuse to hire a person on the basis of the low CSA score."
A spokesperson for Kroger did not respond to phone calls from ABC News.