A. Records concerning impact. Each user should maintain and have
available for inspection records or other information which will
disclose the impact which its tests and other selection procedures have
upon employment opportunities of persons by identifiable race, sex, or
ethnic group as set forth in subparagraph B of this section in order to
determine compliance with these guidelines. Where there are large
numbers of applicants and procedures are administered frequently, such
information may be retained on a sample basis, provided that the sample
is appropriate in terms of the applicant population and adequate in
size.
B. Applicable race, sex, and ethnic groups for recordkeeping. The
records called for by this section are to be maintained by sex, and the
following races and ethnic groups: Blacks (Negroes), American Indians
(including Alaskan Natives), Asians (including Pacific Islanders),
Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or
South American, or other Spanish origin or culture regardless of race),
whites (Caucasians) other than Hispanic, and totals. The race, sex, and
ethnic classifications called for by this section are consistent with
the Equal Employment Opportunity Standard Form 100, Employer Information
Report EEO-1 series of reports. The user should adopt safeguards to
insure that the records required by this paragraph are used for
appropriate purposes such as determining adverse impact, or (where
required) for developing and monitoring affirmative action programs, and
that such records are not used improperly. See sections 4E and 17(4), of
this part.
C. Evaluation of selection rates. The ``bottom line.'' If the
information called for by sections 4A and B of this section shows that
the total selection process for a job has an adverse impact, the
individual components of the selection process should be evaluated for
adverse impact. If this information shows that the total selection
process does not have an adverse impact, the Federal enforcement
agencies, in the exercise of their administrative and prosecutorial
discretion, in usual circumstances, will not expect a user to
evaluate the individual components for adverse impact, or to validate
such individual components, and will not take enforcement action based
upon adverse impact of any component of that process, including the
separate parts of a multipart selection procedure or any separate
procedure that is used as an alternative method of selection. However,
in the following circumstances the Federal enforcement agencies will
expect a user to evaluate the individual components for adverse impact
and may, where appropriate, take enforcement action with respect to the
individual components: (1) where the selection procedure is a
significant factor in the continuation of patterns of assignments of
incumbent employees caused by prior discriminatory employment practices,
(2) where the weight of court decisions or administrative
interpretations hold that a specific procedure (such as height or weight
requirements or no-arrest rec- ords) is not job related in the same or
similar circumstances. In unusual circumstances, other than those listed
in paragraphs (1) and (2) of this section, the Federal enforcement
agencies may request a user to evaluate the individual components for
adverse impact and may, where appropriate, take enforcement action with
respect to the individual component.
D. Adverse impact and the ``four-fifths rule.'' A selection rate for
any race, sex, or ethnic group which is less than four-fifths (\4/5\)
(or eighty percent) of the rate for the group with the highest rate will
generally be regarded by the Federal enforcement agencies as evidence of
adverse impact, while a greater than four-fifths rate will generally not
be regarded by Federal enforcement agencies as evidence of adverse
impact. Smaller differences in selection rate may nevertheless
constitute adverse impact, where they are significant in both
statistical and practical terms or where a user's actions have
discouraged applicants disproportionately on grounds of race, sex, or
ethnic group. Greater differences in selection rate may not constitute
adverse impact where the differences are based on small numbers and are
not statistically significant, or where special recruiting or other
programs cause the pool of minority or female candidates to be atypical
of the normal pool of applicants from that group. Where the user's
evidence concerning the impact of a selection procedure indicates
adverse impact but is based upon numbers which are too small to be
reliable, evidence concerning the impact of the procedure over a longer
period of time and/or evidence concerning the impact which the selection
procedure had when used in the same manner in similar circumstances
elsewhere may be considered in determining adverse impact. Where the
user has not maintained data on adverse impact as required by the
documentation section of applicable guidelines, the Federal enforcement
agencies may draw an inference of adverse impact of the selection
process from the failure of the user to maintain such data, if the user
has an underutilization of a group in the job category, as compared to
the group's representation in the relevant labor market or, in the case
of jobs filled from within, the applicable work force.
E. Consideration of user's equal employment opportunity posture. In
carrying out their obligations, the Federal enforcement agencies will
consider the general posture of the user with respect to equal
employment opportunity for the job or group of jobs in question. Where a
user has adopted an affirmative action program, the Federal enforcement
agencies will consider the provisions of that program, including the
goals and timetables which the user has adopted and the progress which
the user has made in carrying out that program and in meeting the goals
and timetables. While such affirmative action programs may in design and
execution be race, color, sex, or ethnic conscious, selection procedures
under such programs should be based upon the ability or relative ability
to do the work.
