The principles of disparate or unequal treatment must be
distinguished from the concepts of validation. A selection procedure--
even though validated against job performance in accordance with these
guidelines--cannot be imposed upon members of a race, sex, or ethnic
group where other employees, applicants, or members have not been
subjected to that standard. Disparate treatment occurs where members of
a race, sex, or ethnic group have been denied the same employment,
promotion, membership, or other employment opportunities as have been
available to other employees or applicants. Those employees or
applicants who have been denied equal treatment, because of prior
discriminatory practices or policies, must at least be afforded the same
opportunities as had existed for other employees or applicants during
the period of discrimination. Thus, the persons who were in the class of
persons discriminated against during the period the user followed the
discriminatory practices should be allowed the opportunity to qualify
under less stringent selection procedures previously followed, unless
the user demonstrates that the increased standards are required by
business necessity. This section does not prohibit a user who has not
previously followed merit standards from adopting merit standards which
are in compliance with these guidelines; nor does it preclude a user who
has previously used invalid or unvalidated selection procedures from
developing and using procedures which are in accord with these
guidelines.
