A. Procedure having adverse impact constitutes discrimination unless
justified. The use of any selection procedure which has an adverse
impact on the hiring, promotion, or other employment or membership
opportunities of members of any race, sex, or ethnic group will be
considered to be discriminatory and inconsistent with these guidelines,
unless the procedure has been validated in accordance with these
guidelines, or the provisions of section 6 of this part are satisfied.
B. Consideration of suitable alternative selection procedures. Where
two or more selection procedures are available which serve the user's
legitimate interest in efficient and trustworthy workmanship, and which
are substantially equally valid for a given purpose, the user should use
the procedure which has been demonstrated to have the lesser adverse
impact. Accordingly, whenever a validity study is called for by these
guidelines, the user should include, as a part of the validity study, an
investigation of suitable alternative selection procedures and suitable
alternative methods of using the selection procedure which have as
little adverse impact as possible, to determine the appropriateness of
using or validating them in accord with these guidelines. If a user has
made a reasonable effort to become aware of such alternative procedures
and validity has been demonstrated in accord with these guidelines, the
use of the test or other selection procedure may continue until such
time as it should reasonably be reviewed for currency. Whenever the user
is shown an alternative selection procedure with evidence of less
adverse impact and substantial evidence of validity for the same job in
similar circumstances, the user should investigate it to determine the
appropriateness of using or validating it in accord with these
guidelines. This subsection is not intended to preclude the combination
of procedures into a significantly more valid procedure, if the use of
such a combination has been shown to be in compliance with the
guidelines.
