UNIFORM EMPLOYEE SELECTION GUIDELINES
INTERPRETATION AND CLARIFICATION (Questions and Answers)
Equal Employment Opportunity Commission
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Table of Contents
I.Purpose and Scope. 3
II.Adverse Impact, the Bottom Line and Affirmative
Action. 4
III. General Questions Concerning Validity and the
Use of Selection Procedures 10
IV.Technical Standards 14
A. CRITERION-RELATED VALIDITY. 16
B. CONTENT VALIDITY. 18
C. CONSTRUCT VALIDITY. 19
V. Records and Documentation. 19
The following series of questions and answers are designed to clarify
and interpret, but not to modify, the uniform Guidelines on Employee
Selection Procedures that were adopted on August 25, 1978, by the
Equal Employment Opportunity Commission (29 CFR 1607), Office of
Personnel Management (5 CFR 300), U.S. Department of Justice (28
CFR, Ch. 1, Part 50), U.S. Treasury Department (31 CFR, Ch. 1, Part
51) and the Office of Federal Contract Compliance Programs (41 CFR,
Ch. 60, Part 68-3). Supplemental questions and answers (No. 91 through
93) became effective as of May 2, 1980 (45 F.R. 29350).
I. Purpose and Scope
1. Q. What is the purpose of the Guidelines?
A. The guidelines are designed to aid in the achievement of our
nation's goal of equal employment opportunity without discrimination
on the grounds of race, color, sex, religion or national origin.
The Federal agencies have adopted the Guidelines to provide a uniform
set of principles governing use of employee selection procedures
which is consistent with applicable legal standards and validation
standards generally accepted by the psychological profession and
which the Government will apply in the discharge of its responsibilities.
2. Q. What is the basic principle of the Guidelines?
A. A selection process which has an adverse impact on the employment
opportunities of members of a race, color, religion, sex, or national
origin group (referred to as "race, sex, and ethnic group,"
as defined in Section 16P) and thus disproportionately screens them
out is unlawfully discriminatory unless the process or its component
procedures have been validated in accord with the Guidelines, or
the user otherwise justifies them in accord with Federal law. See
Sections 3 and 6. 1 This principle was adopted by the Supreme Court
unanimously in Griggs v. Duke Power Co., 401 U.S. 424, and was ratified
and endorsed by the Congress when it passed the Equal Employment
Opportunity Act of 1972, which amended Title VII of the Civil Rights
Act of 1964.
3. Q. Who is covered by the Guidelines?
A. The Guidelines apply to private and public employers, labor
organizations, employment agencies, apprenticeship committees, licensing
and certification boards (see Question 7), and contractors or subcontractors,
who are covered by one or more of the following provisions of Federal
equal employment opportunity law: Title VII of the Civil Rights
Act of 1964, as amended by the Equal Employment Opportunity Act
of 1972 (hereinafter Title VII); Executive Order 11246, as amended
by Executive Orders 11375 and 12086 (hereinafter Executive Order
11246); the State and Local Fiscal Assistance Act of 1972, as amended;
Omnibus Crime Control and Safe Streets Act of 1968, as amended;
and the Intergovernmental Personnel Act of 1970, as amended. Thus,
under Title VII, the Guidelines apply to the Federal Government
with regard to Federal employment. Through Title VII they apply
to most private employers who have 15 or more employees for 20 weeks
or more a calendar year, and to most employment agencies, labor
organizations and apprenticeship committees. They apply to state
and local governments which employ 15 or more employees, or which
receive revenue sharing funds, or which receive funds from the Law
Enforcement Assistance Administration to impose and strengthen law
enforcement and criminal justice, or which receive grants or other
federal assistance under a program which requires maintenance of
personnel standards on a merit basis. They apply through Executive
Order 11246 to contractors and subcontractors of the Federal Government
and to contractors and subcontractors under federally-assisted construction
contracts.
4. Q. Are college placement offices and similar organizations
considered to be users subject to the Guidelines?
A. Placement offices may or may not be subject to the Guidelines
depending on what services they offer. If a placement office uses
a selection procedure as a basis for any employment decision, it
is covered under the definition of "user". Section 16.
For example, if a placement office selects some students for referral
to an employer but rejects others, it is covered. However, if the
placement office refers all interested students to an employer,
it is not covered, even though it may offer office space and provision
for informing the students of job openings. The Guidelines are intended
to cover all users of employee selection procedures, including employment
agencies, who are subject to Federal equal employment opportunity
law.
5. Q. Do the Guidelines apply only to written tests?
A. No. They apply to all selection procedures used to make employment
decisions, including interviews, review of experience or education
from application forms, work samples, physical requirements, and
evaluations of performance. Sections 2B and 16Q, and see Question
6.
6. Q. What practices are covered by the Guidelines?
A. The Guidelines apply to employee selection procedures which
are used in making employment decisions, such as hiring, retention,
promotion, transfer, demotion, dismissal or referral. Section 2B.
Employee selection procedures include job requirements (physical,
education, experience), and evaluation of applicants or candidates
on the basis of application forms, interviews, performance tests,
paper and pencil tests, performance in training programs or probationary
periods, and any other procedures used to make an employment decision
whether administered by the employer or by an employment agency.
See Section 2B.
7. Q. Do the Guidelines apply to the licensing and certification
functions of state and local governments?
A. The Guidelines apply to such functions to the extent that they
are covered by Federal law. Section 2B. The courts are divided on
the issue of such coverage. The Government has taken the position
that at least some kinds of licensing and certification which deny
persons access to employment opportunity may be enjoined in an action
brought pursuant to Section 707 of the Civil Rights Act of 1964,
as amended.
8. Q. What is the relationship between Federal equal employment
opportunity law, embodied in these Guidelines, and State and Local
government merit system laws or regulations requiring rank ordering
of candidates and selection from a limited number of the top candidates?
A. The Guidelines permit ranking where the evidence of validity
is sufficient to support that method of use. State or local laws
which compel rank ordering generally do so on the assumption that
the selection procedure is valid. Thus, if there is adverse impact
and the validity evidence does not adequately support that method
of use, proper interpretation of such a state law would require
validation prior to ranking. Accordingly, there is no necessary
or inherent conflict between Federal law and State or local laws
of the kind described.
Under the Supremacy Clause of the Constitution (Art. VI, Cl. 2),
however, Federal law or valid regulation overrides any contrary
provision of state or local law. Thus, if there is any conflict,
Federal equal opportunity law prevails. For example, in Rosenfeld
v. So. Pacific Co., 444 F.2d 1219 (9th Cir., 1971), the court held
invalid state protective laws which prohibited the employment of
women in jobs entailing long hours or heavy labor, because the state
laws were in conflict with Title VII. Where a State or local official
believes that there is a possible conflict, the official may wish
to consult with the State Attorney General, County or City attorney,
or other legal official to determine how to comply with the law.
II.Adverse Impact, the Bottom Line and Affirmative
Action
9. Q. Do the Guidelines require that only validated selection
procedures be used?
A. No. Although validation of selection procedures is desirable
in personnel management, the Uniform Guidelines require users to
produce evidence of validity only when the selection procedure adversely
affects the opportunities of a race, sex, or ethnic group for hire,
transfer, promotion, retention or other employment decision. If
there is no adverse impact, there is no validation requirement under
the Guidelines. Sections 1B and 3A. See also, Section 6A.
10. Q. What is adverse impact?
A. Under the Guidelines adverse impact is a substantially different
rate of selection in hiring, promotion or other employment decision
which works to the disadvantage of members of a race, sex or ethnic
group. Sections 4D and 16B. See Questions 11 and 12.
11. Q. What is a substantially different rate of selection?
A. The agencies have adopted a rule of thumb under which they will
generally consider a selection rate for any race, sex, or ethnic
group which is less than four-fifths (4/5ths) or eighty percent
(80%) of the selection rate for the group with the highest selection
rate as a substantially different rate of selection. See Section
4D. This "4/5ths" or "80%" rule of thumb is
not intended as a legal definition, but is a practical means of
keeping the attention of the enforcement agencies on serious discrepancies
in rates of hiring, promotion and other selection decisions.
For example, if the hiring rate for whites other than Hispanics
is 60%, for American Indians 45%, for Hispanics 48%, and for Blacks
51%, and each of these groups constitutes more than 2% of the labor
force in the relevant labor area (see Question 16), a comparison
should be made of the selection rate for each group with that of
the highest group (whites). These comparisons show the following
impact ratios: American Indians 45/60 or 75%; Hispanics 48/60 or
80%; and Blacks 51/60 or 85%. Applying the 4/5ths or 80% rule of
thumb, on the basis of the above information alone, adverse impact
is indicated for American Indians but not for Hispanics or Blacks.
12. Q. How is adverse impact determined?
A. Adverse impact is determined by a four-step process.
(1) Calculate the rate of selection for each group (divide the
number of persons selected from a group by the number of applicants
from that group).
(2) Observe which group has the highest selection rate.
(3) Calculate the impact ratios, by comparing the selection rate
for each group with that of the highest group (divide the selection
rate for a group by the selection rate for the highest group).
(4) Observe whether the selection rate for any group is substantially
less (i.e., usually less then 4/5ths or 80%) than the selection
rate for the highest group. If it is, adverse impact is indicated
in most circumstances. See Section 4D.
For example:
Applicants |
Hires |
Selection
Rate/Percent Hired |
80 White
|
48
|
48/80 or 60%
|
40
Black |
12 |
12/40
or 30% |
A comparison of the black selection rate (30%) with the white selection
rate (60%) shows that the black rate is 30/60, or one-half (or 50%)
of the white rate. Since the one-half (50%) is less than 4/5ths
(80%) adverse impact is usually indicated.
The determination of adverse impact is not purely arithmetic however;
and other factors may be relevant. See, Section 4D.
13. Q. Is adverse impact determined on the basis of the
overall selection process or for the components in that process?
A. Adverse impact is determined first for the overall selection
process for each job. If the overall selection process has an adverse
impact, the adverse impact of the individual selection procedure
should be analyzed. For any selection procedures in the process
having an adverse impact which the user continues to use in the
same manner, the user is expected to have evidence of validity satisfying
the Guidelines. Sections 4C and 5D. If there is no adverse impact
for the overall selection process, in most circumstances there is
no obligation under the Guidelines to investigate adverse impact
for the components, or to validate the selection procedures used
for that job. Section 4C. But see Question 25.
14. Q. The Guidelines designate the "total selection
process" as the initial basis for determining the impact of
selection procedures. What is meant by the "total selection
process"?
A. The "total selection process" refers to the combined
effect of all selection procedures leading to the final employment
decision such as hiring or promoting. For example, appraisal of
candidates for administrative assistant positions in an organization
might include initial screening based upon an application blank
and interview, a written test, a medical examination, a background
check, and a supervisor's interview. These in combination are the
total selection process. Additionally, where there is more than
one route to the particular kind of employment decision, the total
selection process encompasses the combined results of all routes.
For example, an employer may select some applicants for a particular
kind of job through appropriate written and performance tests. Others
may be selected through an internal upward mobility program, on
the basis of successful performance in a directly related trainee
type of position. In such a case, the impact of the total selection
process would be the combined effect of both avenues of entry.
15. Q. What is meant by the terms "applicant"
and "candidate" as they are used in the Uniform Guidelines?
A. The precise definition of the term "applicant" depends
upon the user's recruitment and selection procedures. The concept
of an applicant is that of a person who has indicated an interest
in being considered for hiring, promotion, or other employment opportunities.
This interest might be expressed by completing an application form,
or might be expressed orally, depending upon the employer's practice.
The term "candidate" has been included to cover those
situations where the initial step by the user involves consideration
of current employees for promotion, or training, or other employment
opportunities, without inviting applications. The procedure by which
persons are identified as candidates is itself a selection procedure
under the Guidelines.
A person who voluntarily withdraws formally or informally at any
stage of the selection process is no longer an applicant or candidate
for purposes of computing adverse impact. Employment standards imposed
by the user which discourage disproportionately applicants of a
race, sex or ethnic group may, however, require justification. Records
should be kept for persons who were applicants or candidates at
any stage of the process.
16. Q. Should adverse impact determinations be made for
all groups regardless of their size?
A. No. Section 15A(2) calls for annual adverse impact determinations
to be made for each group which constitutes either 2% or more of
the total labor force in the relevant labor area, or 2% of more
of the applicable workforce. Thus, impact determinations should
be made for any employment decision for each group which constitutes
2% or more of the labor force in the relevant labor area. For hiring,
such determination should also be made for groups which constitute
more than 2% of the applicants; and for promotions, determinations
should also be made for those groups which constitute at least 2%
of the user's workforce. There are record keeping obligations for
all groups, even those which are less than 2%. See Question 86.
17. Q. In determining adverse impact, do you compare the
selection rates for males and females, and blacks and whites, or
do you compare selection rates for white males, white females, black
males and black females?
A. The selection rates for males and females are compared, and
the selection rates for the race and ethnic groups are compared
with the selection rate of the race or ethnic group with the highest
selection rate. Neutral and objective selection procedures free
of adverse impact against any race, sex or ethnic group are unlikely
to have an impact against a subgroup. Thus there is no obligation
to make comparisons for subgroups (e.g., white male, white female,
black male, black female). However, there are obligations to keep
records (see Question 87), and any apparent exclusion of a subgroup
may suggest the presence of discrimination.
18. Q. Is it usually necessary to calculate the statistical
significance of differences in selection rates when investigating
the existence of adverse impact?
A. No. Adverse impact is normally indicated when one selection
rate is less than 80% of the other. The federal enforcement agencies
normally will use only the 80% (4/5ths) rule of thumb, except where
large numbers of selections are made. See Questions 20 and 22.
19. Q. Does the 4/5ths rule of thumb mean that the Guidelines
will tolerate up to 20% discrimination?
A. No. The 4/5ths rule of thumb speaks only to the question of
adverse impact, and is not intended to resolve the ultimate question
of unlawful discrimination. Regardless of the amount of difference
in selection rates, unlawful discrimination may be present, and
may be demonstrated through appropriate evidence. The 4/5ths rule
merely establishes a numerical basis for drawing an initial inference
and for requiring additional information.
With respect to adverse impact, the Guidelines expressly state
(section 4D) that differences in selection rates of less than 20%
may still amount to adverse impact where the differences are significant
in both statistical and practical terms. See Question 20. In the
absence of differences which are large enough to meet the 4/5ths
rule of thumb or a test of statistical significance, there is no
reason to assume that the differences are reliable, or that they
are based upon anything other than chance.
20. Q. Why is the 4/5ths rule called a rule of thumb?
A. Because it is not intended to be controlling in all circumstances.
If, for the sake of illustration, we assume that nationwide statistics
show that use of an arrest record would disqualify 10% of all Hispanic
persons but only 4% of all whites other than Hispanic (hereafter
non-Hispanic), the selection rate for that selection procedure is
90% for Hispanics and 96% for non-Hispanics. Therefore, the 4/5
rule of thumb would not indicate the presence of adverse impact
(90% is approximately 94% of 96%). But in this example, the information
is based upon nationwide statistics, and the sample is large enough
to yield statistically significant results, and the difference (Hispanics
are 21/2 times as likely to be disqualified as non-Hispanics) is
large enough to be practically significant. Thus, in this example
the enforcement agencies would consider a disqualification based
on an arrest record alone as having an adverse impact. Likewise,
in Gregory v. Litton Industries, 472 F.2d 631 (9th Cir., 1972),
the court held that the employer violated Title VII by disqualifying
persons from employment solely on the basis of an arrest record,
where that disqualification had an adverse impact on blacks and
was not shown to be justified by business necessity.
On the other hand, a difference of more than 20% in rates of selection
may not provide a basis for finding adverse impact if the number
of persons selected is very small. For example, if the employer
selected three males and one female from an applicant pool of 20
males and 10 females, the 4/5ths rule would indicate adverse impact
(selection rate for women is 10%; for men 15%; 10/15 or 662/3% is
less than 80%), yet the number of selections is too small to warrant
a determination of adverse impact. In these circumstances, the enforcement
agency would not require validity evidence in the absence of additional
information (such as selection rates for a longer period of time)
indicating adverse impact. For record keeping requirements, see
Section 15A(2)(c) and Questions 84 and 85.
21. Q. Is evidence of adverse impact sufficient to warrant
a validity study or an enforcement action where the numbers involved
are so small that it is more likely than not that the difference
could have occurred by chance?
For example:
Applicants |
Not
Hired |
Hired |
Selection
Rate/Percent Hired |
80 White
|
64 |
16
|
20
|
20 Black
|
17 |
3
|
15
|
White Selection Rate .......................................
20
Black Selection Rate .......................................
15
15 divided by 20 = 75% (which is less than 80%).
|
A. No. If the numbers of persons and the difference in selection
rates are so small that it is likely that the difference could have
occurred by chance, the Federal agencies will not assume the existence
of adverse impact, in the absence of other evidence. In this example,
the difference in selection rates is too small, given the small
number of black applicants, to constitute adverse impact in the
absence of other information (see Section 4D). If only one more
black had been hired instead of a white the selection rate for blacks
(20%) would be higher than that for whites (18.7%). Generally, it
is inappropriate to require validity evidence or to take enforcement
action where the number of persons and the difference in selection
rates are so small that the selection of one different person for
one job would shift the result from adverse impact against one group
to a situation in which that group has a higher selection rate than
the other group.
On the other hand, if a lower selection rate continued over a period
of time, so as to constitute a pattern, then the lower selection
rate would constitute adverse impact, warranting the need for validity
evidence.
22. Q. Is it ever necessary to calculate the statistical
significance of differences in selection rates to determine whether
adverse impact exists?
A. Yes. Where large numbers of selections are made, relatively
small differences in selection rates may nevertheless constitute
adverse impact if they are both statistically and practically significant.
See Section 4D and Question 20. For that reason, if there is a small
difference in selection rates (one rate is more than 80% of the
other), but large numbers of selections are involved, it would be
appropriate to calculate the statistical significance of the difference
in selection rates.
23. Q. When the 4/5th rule of thumb shows adverse impact,
is there adverse impact under the Guidelines?
A. There usually is adverse impact, except where the number of
persons selected and the difference in selection rates are very
small. See Section 4D and Questions 20 and 21.
24. Q. Why do the Guidelines rely primarily upon the 4/5ths
rule of thumb, rather than tests of statistical significance?
A. Where the sample of persons selected is not large, even a large
real difference between groups is likely not to be confirmed by
a test of statistical significance (at the usual .05 level of significance).
For this reason, the Guidelines do not rely primarily upon a test
of statistical significance, but use the 4/5ths rule of thumb as
a practical and easy-to-administer measure of whether differences
in selection rates are substantial. Many decisions in day-to-day
life are made without reliance upon a test of statistical significance.
25. Q. Are there any circumstances in which the employer
should evaluate components of a selection process, even though the
overall selection process results in no adverse impact?
A. Yes, there are such circumstances: (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. Assume, for example, an employer who traditionally hired
blacks as employees for the "laborer" department in a
manufacturing plant, and traditionally hired only whites as skilled
craftsmen. Assume further that the employer in 1962 began to use
a written examination not supported by a validity study to screen
incumbent employees who sought to enter the apprenticeship program
for skilled craft jobs. The employer stopped making racial assignments
in 1972. Assume further that for the last four years, there have
been special recruitment efforts aimed at recent black high school
graduates and that the selection process, which includes the written
examination, has resulted in the selection of black applicants for
apprenticeship in approximately the same rates as white applicants.
In those circumstances, if the written examination had an adverse
impact, its use would tend to keep incumbent black employees in
the laborer department, and deny them entry to apprenticeship programs.
For that reason, the enforcement agencies would expect the user
to evaluate the impact of the written examination, and to have validity
evidence for the use of the written examination if it has an adverse
impact.
(2) Where the weight of court decisions or administrative interpretations
holds that a specific selection procedure is not job related in
similar circumstances.
For example, courts have held that because an arrest is not a determination
of guilt, an applicant's arrest record by itself does not indicate
inability to perform a job consistent with the trustworthy and efficient
operation of a business. Yet a no arrest record requirement has
a nationwide adverse impact on some minority groups. Thus, an employer
who refuses to hire applicants solely on the basis of an arrest
record is on notice that this policy may be found to be discriminatory.
Gregory v. Litton Industries, 472 F.2d 631 (9th Cir., 1972) (excluding
persons from employment solely on the basis of arrests, which has
an adverse impact, held to violate Title VII). Similarly, a minimum
height requirement disproportionately disqualifies women and some
national origin groups, and has been held not to be job related
in a number of cases. For example, in Dothard v. Rawlinson, 433
U.S. 321 (1977), the Court held that height and weight requirements
not shown to be job related were violative of Title VII. Thus an
employer using a minimum height requirement should have evidence
of its validity.
(3) In addition, there may be other circumstances in which an enforcement
agency may decide to request an employer to evaluate components
of a selection process, but such circumstances would clearly be
unusual. Any such decision will be made only at a high level in
the agency. Investigators and compliance officers are not authorized
to make this decision.
26. Q. Does the bottom line concept of Section 4C apply
to the administrative processing of charges of discrimination filed
with an issuing agency, alleging that a specific selection procedure
is discriminatory?
A. No. The bottom line concept applies only to enforcement actions
as defined in Section 16 of the Guidelines. Enforcement actions
include only court enforcement actions and other similar proceedings
as defined in Section 16I. The EEOC administrative processing of
charges of discrimination (investigation, finding of reasonable
cause/no cause, and conciliation) required by Section 706(b) of
Title VII are specificallly exempted from the bottom line concept
by the definition of an enforcement action. The bottom line concept
is a result of a decision by the various enforcement agencies that,
as a matter of prosecutorial discretion, they will devote their
limited enforcement resources to the most serious offenders of equal
employment opportunity laws. Since the concept is not a rule of
law, it does not affect the discharge by the EEOC of its statutory
responsibilities to investigate charges of discrimination, render
an administrative finding on its investigation, and engage in voluntary
conciliation efforts. Similarly, with respect to the other issuing
agencies, the bottom line concept applies not to the processing
of individual charges, but to the initiation of enforcement action.
27. Q. An employer uses one test or other selection procedure
to select persons for a number of different jobs. Applicants are
given the test, and the successful applicants are then referred
to different departments and positions on the basis of openings
available and their interests. The Guidelines appear to require
assessment of adverse impact on a job-by-job basis (Section 15A[2][a]).
Is there some way to show that the test as a whole does not have
adverse impact even though the proportions of members of each race,
sex or ethnic group assigned to different jobs may vary?
A. Yes, in some circumstances. The Guidelines require evidence
of validity only for those selection procedures which have an adverse
impact, and which are part of a selection process which has an adverse
impact. If the test is administered and used in the same fashion
for a variety of jobs, the impact of that test can be assessed in
the aggregate. The records showing the results of the test, and
the total number of persons selected, generally would be sufficient
to show the impact of the test. If the test has no adverse impact,
it need not be validated.
But the absence of adverse impact of the test in the aggregate
does not end the inquiry. For there may be discrimination or adverse
impact in the assignment of individuals to, or in the selection
of persons for, particular jobs. The Guidelines call for records
to be kept and determinations of adverse impact to be made of the
overall selection process on a job by job basis. Thus, if there
is adverse impact in the assignment or selection procedures for
a job even though there is no adverse impact from the test, the
user should eliminate the adverse impact from the assignment procedure
or justify the assignment procedure.
28. Q. The Uniform Guidelines apply to the requirements
of Federal law prohibiting employment practices which discriminate
on the grounds of race, color, religion, sex or national origin.
However, records are required to be kept only by sex and by specified
race and ethnic groups. How can adverse impact be determined for
religious groups and for national origin groups other than those
specified in Section 4B of the Guidelines?
A. The groups for which records are required to be maintained are
the groups for which there is extensive evidence of continuing discriminatory
practices. This limitation is designed in part to minimize the burden
on employers for record keeping which may not be needed.
For groups for which records are not required, the person(s) complaining
may obtain information from the employer or others (voluntarily
or through legal process) to show that adverse impact has taken
place. When that has been done, the various provisions of the Uniform
Guidelines are fully applicable.
Whether or not there is adverse impact, Federal equal employment
opportunity law prohibits any deliberate discrimination or disparate
treatment on grounds of religion or national origin, as well as
on grounds of sex, color, or race.
Whenever "ethnic" is used in the Guidelines or in these
Questions and Answers, it is intended to include national origin
and religion, as set forth in the statutes, executive orders, and
regulations prohibiting discrimination. See Section 16P.
29. Q. What is the relationship between affirmative action
and the requirements of the Uniform Guidelines?
A. The two subjects are different, although related. Compliance
with the Guidelines does not relieve users of their affirmative
action obligations, including those of Federal contractors and subcontractors
under Executive Order 11246. Section 13.
The Guidelines encourage the development and effective implementation
of affirmative action plans or programs in two ways. First, in determining
whether to institute action against a user on the basis of a selection
procedure which has adverse impact and which has not been validated,
the enforcement agency will take into account the general equal
employment opportunity posture of the user with respect to the job
classifications for which the procedure is used and the progress
which has been made in carrying out any affirmative action program,
Section 4E. If the user has demonstrated over a substantial period
of time that it is in fact appropriately utilizing in the job or
group of jobs in question the available race, sex or ethnic groups
in the relevant labor force, the enforcement agency will generally
exercise its discretion by not initiating enforcement proceedings
based on adverse impact in relation to the applicant flow. Second,
nothing in the Guidelines is intended to preclude the use of selection
procedures, consistent with Federal law, which assist in the achievement
of affirmative action objectives. Section 13A. See also, Questions
30 and 31.
30. Q. When may a user be race, sex or ethnic-conscious?
A. The Guidelines recognize that affirmative action programs may
be race, sex or ethnic conscious in appropriate circumstances, (See
Sections 4E and 13; See also Section 7, Appendix). In addition to
obligatory affirmative action programs (See Question 29), the Guidelines
encourage the adoption of voluntary affirmative action programs.
Users choosing to engage in voluntary affirmative action are referred
to EEOC's Guidelines on Affirmative Action (44 FR 4422, January
19, 1979). A user may justifiably be race, sex or ethnic-conscious
in circumstances where it has reason to believe that qualified persons
of specified race, sex or ethnicity have been or may be subject
to the exclusionary effects of its selection procedures or other
employment practices in its work force or particular jobs therein.
In establishing long and short range goals, the employer may use
the race, sex, or ethnic classification as the basis for such goals
(Section 17[3][a]).
In establishing a recruiting program, the employer may direct its
recruiting activities to locations or institutions which have a
high proportion of the race, sex, or ethnic group which has been
excluded or underutilized (section 17[3][b]). In establishing the
pool of qualified persons from which final selections are to be
made, the employer may take reasonable steps to assure that members
of the excluded or underutilized race, sex, or ethnic group are
included in the pool (Section 17[3][e]).
Similarly, the employer may be race, sex or ethnic-conscious in
determining what changes should be implemented if the objectives
of the programs are not being met (Section 17[3][g]).
Even apart from affirmative action programs a user may be race,
sex or ethnic-conscious in taking appropriate and lawful measures
to eliminate adverse impact from selection procedures (Section 6A).
31. Q. Section 6A authorizes the use of alternative selection
procedures to eliminate adverse impact, but does not appear to address
the issue of validity. Thus, the use of alternative selection procedures
without adverse impact seems to be presented as an option in lieu
of validation. Is that its intent?
A. Yes. Under Federal equal employment opportunity law the use
of any selection procedure which has an adverse impact on any race,
sex or ethnic group is discriminatory unless the procedure has been
properly validated, or the use of the procedure is otherwise justified
under Federal law. Griggs v. Duke Power Co., 401 U.S. 424 (1971);
Section 3A. If a selection procedure has an adverse impact, therefore,
Federal equal employment opportunity law authorizes the user to
choose lawful alternative procedures which eliminate the adverse
impact rather than demonstrating the validity of the original selection
procedure.
Many users, while wishing to validate all of their selection procedures,
are not able to conduct the validity studies immediately. Such users
have the option of choosing alternative techniques which eliminate
adverse impact, with a view to providing a basis for determining
subsequently which selection procedures are valid and have as little
adverse impact as possible.
Apart from Federal equal employment opportunity law, employers
have economic incentives to use properly validated selection procedures.
Nothing in Section 6A should be interpreted as discouraging the
use of properly validated selection procedures; but Federal equal
employment opportunity law does not require validity studies to
be conducted unless there is adverse impact. See Section 2C.
III. General Questions Concerning Validity and the
Use of Selection Procedures
32. Q. What is "validation" according to the Uniform
Guidelines?
A. Validation is the demonstration of the job relatedness of a
selection procedure. The Uniform Guidelines recognize the same three
validity strategies recognized by the American Psychological Association:
(1) Criterion-related validity--a statistical demonstration of
a relationship between scores on a selection procedure and job performance
of a sample of workers.
(2) Content validity--a demonstration that the content of a selection
procedure is representative of important aspects of performance
on the job.
(3) Construct validity--a demonstration that (a) a selection procedure
measures a construct (something believed to be an underlying human
trait or characteristic, such as honesty) and (b) the construct
is important for successful job performance.
33. Q. What is the typical process by which validity studies
are reviewed by an enforcement agency?
A. The validity study is normally requested by an enforcement officer
during the course of a review. The officer will first determine
whether the user's data show that the overall selection process
has an adverse impact, and if so, which component selection procedures
have an adverse impact. See Section 15A(3). The officer will then
ask for the evidence of validity for each procedure which has an
adverse impact. See Sections 15B, C, and D. This validity evidence
will be referred to appropriate personnel for review. Agency findings
will then be communicated to the user.
34. Q. Can a user send its validity evidence to an enforcement
agency before a review, so as to assure its validity?
A. No. Enforcement agencies will not review validity reports except
in the context of investigations or reviews. Even in those circumstances,
validity evidence will not be reviewed without evidence of how the
selection procedure is used and what impact its use has on various
race, sex, and ethnic groups.
35. Q. May reports of validity prepared by publishers of commercial
tests and printed in test manuals or other literature be helpful
in meeting the Guidelines?
A. They may be. However, it is the user's responsibility to determine
that the validity evidence is adequate to meet the Guidelines. See
Section 7, and Questions 43 and 66. Users should not use selection
procedures which are likely to have an adverse impact without reviewing
the evidence of validity to make sure that the standards of the
Guidelines are met.
The following questions and answers (36-81) assume that a selection
procedure has an adverse impact and is part of a selection process
that has an adverse impact.
36. Q. How can users justify continued use of a procedure
on a basis other than validity?
A. Normally, the method of justifying selection procedures with
an adverse impact and the method to which the Guidelines are primarily
addressed, is validation. The method of justification of a procedure
by means other than validity is one to which the Guidelines are
not addressed. See Section 6B. In Griggs v. Duke Power Co., 401
U.S. 424, the Supreme Court indicated that the burden on the user
was a heavy one, but that the selection procedure could be used
if there was a "business necessity" for its continued
use; therefore, the Federal agencies will consider evidence that
a selection procedure is necessary for the safe and efficient operation
of a business to justify continued use of a selection procedure.
37. Q. Is the demonstration of a rational relationship (as
that term is used in constitutional law) between a selection procedure
and the job sufficient to meet the validation requirements of the
Guidelines?
A. No. The Supreme Court in Washington v. Davis, 426 U.S. 229 (1976)
stated that different standards would be applied to employment discrimination
allegations arising under the Constitution than would be applied
to employment discrimination allegations arising under Title VII.
The Davis case arose under the Constitution, and no Title VII violation
was alleged. The Court applied a traditional constitutional law
standard of "rational relationship" and said that it would
defer to the "seemingly reasonable acts of administrators and
executives." However, it went on to point out that under Title
VII, the appropriate standard would still be an affirmative demonstration
of the relationship between the selection procedure and measures
of job performance by means of accepted procedures of validation
and it would be an "insufficient response to demonstrate some
rational basis" for a selection procedure having an adverse
impact. Thus, the mere demonstration of a rational relationship
between a selection procedure and the job does not meet the requirement
of Title VII of the Civil Rights Act of 1964, or of Executive Order
11246, or the State and Local Fiscal Assistance Act of 1972, as
amended (the revenue sharing act) or the Omnibus Crime Control and
Safe Streets Act of 1968, as amended, and will not meet the requirements
of these Guidelines for a validity study. The three validity strategies
called for by these Guidelines all require evidence that the selection
procedure is related to successful performance on the job. That
evidence may be obtained through local validation or through validity
studies done elsewhere.
38. Q. Can a user rely upon written or oral assertions of
validity instead of evidence of validity?
A. No. If a user's selection procedures have an adverse impact,
the user is expected to produce evidence of the validity of the
procedures as they are used. Thus, the unsupported assertion by
anyone, including representatives of the Federal government or State
Employment Services, that a test battery or other selection procedure
has been validated is not sufficient to satisfy the Guidelines.
39. Q. Are there any formal requirements imposed by these
Guidelines as to who is allowed to perform a validity study?
A. No. A validity study is judged on its own merits, and may be
performed by any person competent to apply the principles of validity
research, including a member of the user's staff or a consultant.
However, it is the user's responsibility to see that the study meets
validity provisions of the Guidelines, which are based upon professionally
accepted standards. See Question 42.
40. Q. What is the relationship between the validation provisions
of the Guidelines and other statements of psychological principles,
such as the Standards for Educational and Psychological Tests, published
by the American Psychological Association (Wash., D.C., 1974) (hereinafter
"American Psychological Association Standards")?
A. The validation provisions of the Guidelines are designed to
be consistent with the generally accepted standards of the psychological
profession. These Guidelines also interpret Federal equal employment
opportunity law, and embody some policy determinations of an administrative
nature. To the extent that there may be differences between particular
provisions of the Guidelines and expressions of validation principles
found elsewhere, the Guidelines will be given precedence by the
enforcement agencies.
41. Q. When should a validity study be carried out?
A. When a selection procedure has adverse impact on any race, sex
or ethnic group, the Guidelines generally call for a validity study
or the elimination of adverse impact. See Sections 3A and 6, and
Questions 9, 31, and 36. If a selection procedure has adverse impact,
its use in making employment decisions without adequate evidence
of validity would be inconsistent with the Guidelines. Users who
choose to continue the use of a selection procedure with an adverse
impact until the procedure is challenged increase the risk that
they will be found to be engaged in discriminatory practices and
will be liable for back pay awards, plaintiffs' attorneys' fees,
loss of Federal contracts, subcontracts or grants, and the like.
Validation studies begun on the eve of litigation have seldom been
found to be adequate. Users who choose to validate selection procedures
should consider the potential benefit from having a validation study
completed or well underway before the procedures are administered
for use in employment decisions.
42. Q. Where can a user obtain professional advice concerning
validation of selection procedures?
A. Many industrial and personnel psychologists validate selection
procedures, review published evidence of validity and make recommendations
with respect to the use of selection procedures. Many of these individuals
are members or fellows of Division 14 (Industrial and Organizational
Psychology) or Division 5 (Evaluation and Measurement) of the American
Psychological Association. They can be identified in the membership
directory of that organization. A high level of qualification is
represented by a diploma in Industrial Psychology awarded by the
American Board of Professional Psychology.
Individuals with the necessary competence may come from a variety
of backgrounds. The primary qualification is pertinent training
and experience in the conduct of validation research.
Industrial psychologists and other persons competent in the field
may be found as faculty members in colleges and universities (normally
in the departments of psychology or business administration) or
working as individual consultants or as members of a consulting
organization.
Not all psychologists have the necessary expertise. States have
boards which license and certify psychologists, but not generally
in a specialty such as industrial psychology. However, State psychological
associations may be a source of information as to individuals qualified
to conduct validation studies. Addresses of State psychological
associations or other sources of information may be obtained from
the American Psychological Association, 1200 Seventeenth Street,
NW., Washington, D.C. 20036.
43. Q. Can a selection procedure be a valid predictor of
performance on a job in a certain location and be invalid for predicting
success on a different job or the same job in a different location?
A. Yes. Because of differences in work behaviors, criterion measures,
study samples or other factors, a selection procedure found to have
validity in one situation does not necessarily have validity in
different circumstances. Conversely, a selection procedure not found
to have validity in one situation may have validity in different
circumstances. For these reasons, the Guidelines require that certain
standards be satisfied before a user may rely upon findings of validity
in another situation. Section 7 and Section 14D. See also, Question
66. Cooperative and multi-unit studies are however encouraged, and,
when those standards of the Guidelines are satisfied, validity evidence
specific to each location is not required. See Section 7C and Section
8.
44. Q. Is the user of a selection procedure required to
develop the procedure?
A. No. A selection procedure developed elsewhere may be used. However,
the user has the obligation to show that its use for the particular
job is consistent with the Guidelines. See Section 7.
45. Q. Do the Guidelines permit users to engage in cooperative
efforts to meet the Guidelines?
A. Yes. The Guidelines not only permit but encourage such efforts.
Where users have participated in a cooperative study which meets
the validation standards of these Guidelines and proper account
has been taken of variables which might affect the applicability
of the study to specific users, validity evidence specific to each
user will not be required. Section 8.
46. Q. Must the same method for validation be used for all
parts of a selection process?
A. No. For example, where a selection process includes both a physical
performance test and an interview, the physical test might be supported
on the basis of content validity, and the interview on the basis
of a criterion-related study.
47. Q. Is a showing of validity sufficient to assure the
lawfulness of the use of a selection procedure?
A. No. The use of the selection procedure must be consistent with
the validity evidence. For example, if a research study shows only
that, at a given passing score the test satisfactorily screens out
probable failures, the study would not justify the use of substantially
different passing scores, or of ranked lists of those who passed.
See Section 5G. Similarly, if the research shows that a battery
is valid when a particular set of weights is used, the weights actually
used must conform to those that were established by the research.
48. Q. Do the Guidelines call for a user to consider and
investigate alternative selection procedures when conducting a validity
study?
A. Yes. The Guidelines call for a user, when conducting a validity
study, to make a reasonable effort to become aware of suitable alternative
selection procedures and methods of use which have as little adverse
impact as possible, and to investigate those which are suitable.
Section 3B.
An alternative procedure may not previously have been used by the
user for the job in question and may not have been extensively used
elsewhere. Accordingly, the preliminary determination of the suitability
of the alternative selection procedure for the user and job in question
may have to be made on the basis of incomplete information. If on
the basis of the evidence available, the user determines that the
alternative selection procedure is likely to meet its legitimate
needs, and is likely to have less adverse impact than the existing
selection procedure, the alternative should be investigated further
as a part of the validity study. The extent of the investigation
should be reasonable. Thus, the investigation should continue until
the user has reasonably concluded that the alternative is not useful
or not suitable, or until a study of its validity has been completed.
Once the full validity study has been completed, including the evidence
concerning the alternative procedure, the user should evaluate the
results of the study to determine which procedure should be used.
See Section 3B and Question 50.
49. Q. Do the Guidelines call for a user continually to
investigate "suitable alternative selection procedures and
suitable alternative methods of using the selection procedure which
have as little adverse impact as possible?"
A. No. There is no requirement for continual investigation. A reasonable
investigation of alternatives is called for by the Guidelines as
a part of any validity study. Once the study is complete and validity
has been found, however, there is generally no obligation to conduct
further investigations, until such time as a new study is called
for. See, Sections 3B and 5K. If a government agency, complainant,
civil rights organization or other person having a legitimate interest
shows such a user an alternative procedure with less adverse impact
and with substantial evidence of validity for the same job in similar
circumstances, the user is obliged to investigate only the particular
procedure which has been presented. Section 3B.
50. Q. In what circumstances do the Guidelines call for
the use of an alternative selection procedure or an alternative
method of using the procedure?
A. The alternative selection procedure (or method of use) should
be used when it has less adverse impact and when the evidence shows
that its validity is substantially the same or greater for the same
job in similar circumstances. Thus, if under the original selection
procedure the selection rate for black applicants was only one half
(50 percent) that of the selection rate for white applicants, whereas
under the alternative selection procedure the selection rate for
blacks is two-thirds (67 percent) that of white applicants, the
new alternative selection procedure should be used when the evidence
shows substantially the same or greater validity for the alternative
than for the original procedure. The same principles apply to a
new user who is deciding what selection procedure to institute.
51. Q. What are the factors to be considered in determining
whether the validity for one procedure is substantially the same
as or greater than that of another procedure?
A. In the case of a criterion-related validity study, the factors
include the importance of the criteria for which significant relationships
are found, the magnitude of the relationship between selection procedure
scores and criterion measures, and the size and composition of the
samples used. For content validity, the strength of validity evidence
would depend upon the proportion of critical and/or important job
behaviors measured, and the extent to which the selection procedure
resembles actual work samples or work behaviors. Where selection
procedures have been validated by different strategies, or by construct
validity, the determination should be made on a case-by-case basis.
52. Q. The Guidelines require consideration of alternative
procedures and alternative methods of use, in light of the evidence
of validity and utility and the degree of adverse impact of the
procedure. How can a user know that any selection procedure with
an adverse impact is lawful?
A. The Uniform Guidelines (Section 5G) expressly permit the use
of a procedure in a manner supported by the evidence of validity
and utility, even if another method of use has a lesser adverse
impact. With respect to consideration of alternative selection procedures,
if the user made a reasonable effort to become aware of alternative
procedures, has considered them and investigated those which appear
suitable as a part of the validity study, and has shown validity
for a procedure, the user has complied with the Uniform Guidelines.
The burden is then on the person challenging the procedure to show
that there is another procedure with better or substantially equal
validity which will accomplish the same legitimate business purposes
with less adverse impact. Section 3B. See also, Albemarle Paper
Co. v. Moody, 422 U.S. 405.
53. Q. Are the Guidelines consistent with the decision of
the Supreme Court in Furnco Construction Corp. v. Waters, -- U.S.
--, 98 S.Ct. 2943 (1978) where the Court stated: "Title VII
*** does not impose a duty to adopt a hiring procedure that maximizes
hiring of minority employees."
A. Yes. The quoted statement in Furnco v. Waters was made on a
record where there was no adverse impact in the hiring process,
no different treatment, no intentional discrimination, and no contractual
obligations under E.O. 11246. Section 3B of the Guidelines is predicated
upon a finding of adverse impact. Section 3B indicates that, when
two or more selection procedures are available which serve a legitimate
business purpose with substantially equal validity, the user should
use the one which has been demonstrated to have the lesser adverse
impact. Part V of the Overview of the Uniform Guidelines, in elaborating
on this principle, states: "Federal equal employment opportunity
law has added a requirement to the process of validation. In conducting
a validation study, the employer should consider available alternatives
which will achieve its legitimate purpose with lesser adverse impact."
Section 3B of the Guidelines is based on the principle enunciated
in the Supreme Court decision in Albermarle Paper Co. v. Moody,
422 U.S. 405 (1975) that, even where job relatedness has been proven,
the availability of other tests or selection devices which would
also serve the employer's legitimate interest in "efficient
and trustworthy workmanship" without a similarly undesirable
racial effect would be evidence that the employer was using its
tests merely as a pretext for discrimination.
Where adverse impact still exists, even though the selection procedure
has been validated, there continues to be an obligation to consider
alternative procedures which reduce or remove that adverse impact
if an opportunity presents itself to do so without sacrificing validity.
Where there is no adverse impact, the Furnco principle rather than
the Albermarle principle is applicable.
IV. Technical Standards
54. Q. How does a user choose which validation strategy
to use?
A. A user should select a validation strategy or strategies which
are (1) appropriate for the type of selection procedure, the job,
and the employment situation, and (2) technically and administratively
feasible. Whatever method of validation is used, the basic logic
is one of prediction; that is, the presumption that level of performance
on the selection procedure will, on the average, be indicative of
level of performance on the job after selection. Thus, a criterion-related
study, particularly a predictive one, is often regarded as the closet
to such an ideal. See American Psychological Association Standards,
pp. 26-27.
Key conditions for a criterion-related study are a substantial
number of individuals for inclusion in the study, and a considerable
range of performance on the selection and criterion measures. In
addition, reliable and valid measures of job performance should
be available, or capable of being developed. Section 14B(1). Where
such circumstances exist, a user should consider use of the criterion-related
strategy.
Content validity is appropriate where it is technically and administratively
feasible to develop work samples or measures of operationally defined
skills, knowledges, or abilities which, are a necessary prerequisite
to observable work behaviors. Content validity is not appropriate
for demonstrating the validity of tests of mental processes or aptitudes
or characteristics; and is not appropriate for knowledges, skills
or abilities which an employee will be expected to learn on the
job. Section 14C(1).
The application of a construct validity strategy to support employee
selection procedures is newer and less developed than criterion-related
or content validity strategies. Continuing research may result in
construct validity becoming more widely used. Because construct
validity represents a generalization of findings, one situation
in which construct validity might hold particular promise is that
where it is desirable to use the same selection procedures for a
variety of jobs. An overriding consideration in whether or not to
consider construct validation is the availability of an individual
with a high level of expertise in this field.
In some situations only one kind of validation study is likely
to be appropriate. More than one strategy may be possible in other
circumstances, in which case administrative considerations such
as time and expense may be decisive. A combination of approaches
may be feasible and desirable.
55. Q. Why do the Guidelines recognize only content, construct,
and criterion-related validity?
A. These three validation strategies are recognized in the Guidelines
since they represent the current professional consensus. If the
professional community recognizes new strategies or substantial
modifications of existing strategies, they will be considered and,
if necessary, changes will be made in the Guidelines. Section 5A.
56. Q. Why don't the Uniform Guidelines state a preference
for criterion-related validity over content or construct validity?
A. Generally accepted principles of the psychological profession
support the use of criterion-related, content or construct validity
strategies as appropriate. American Psychological Association Standards,
E, pp. 25-26. This use was recognized by the supreme Court in Washington
v. Davis, 426 U.S. 229, 247, fn. 13. Because the Guidelines describe
the conditions under which each validity strategy is inappropriate,
there is no reason to state a general preference for any one validity
strategy.
57. Q. Are the Guidelines intended to restrict the development
of new testing strategies, psychological theories, methods of job
analysis or statistical techniques?
A. No. The Guidelines are concerned with the validity and fairness
selection procedures used in making employment decisions, and are
not intended to limit research and new developments. See Question
55.
58. Q. Is a full job analysis necessary for all validity
studies?
A. It is required for all content and construct studies, but not
for all criterion-related studies. See Sections 14A and 14B(2).
Measures of the results or outcomes of work behaviors such as production
rate or error rate may be used without a full job analysis where
a review of information about the job shows that these criteria
are important to the employment situation of the user. Similarly,
measures such as absenteeism, tardiness or turnover may be used
without a full job analysis if these behaviors are shown by a review
of information about the job to be important in the specific situation.
A rating of overall job performance may be used without a full job
analysis only if the user can demonstrate its appropriateness for
the specific job and employment situation through a study of the
job. The Supreme Court held in Albemarle Paper Co. v. Moody, 422
U.S. 405 (1975), that measures of overall job performance should
be carefully developed and their use should be standardized and
controlled.
59. Q. Section 5J on interim use requires the user to have
available substantial evidence of validity. What does this mean?
A. For purposes of compliance with 5J, "substantial evidence"
means evidence which may not meet all the validation requirements
of the Guidelines but which raises a strong inference that validity
pursuant to these standards will soon be shown. Section 5J is based
on the proposition that it would not be an appropriate allocation
of Federal resources to bring enforcement proceedings against a
user who would soon be able to satisfy fully the standards of the
Guidelines. For example, a criterion-related study may have produced
evidence which meets almost all of the requirements of the Guidelines
with the exception that the gathering of the data of test fairness
is still in progress and the fairness study has not yet produced
results. If the correlation coefficient for the group as a whole
permits the strong inference that the selection procedure is valid,
then the selection procedure may be used on an interim basis pending
the completion of the fairness study.
60. Q. What are the potential consequences to a user when
a selection procedure is used on an interim basis?
A. The fact that the Guidelines permit interim use of a selection
procedure under some conditions does not immunize the user from
liability for back pay, attorney fees and the like, should use of
the selection procedure later be found to be in violation of the
Guidelines. Section 5J. For this reason, users should take steps
to come into full compliance with the Guidelines as soon as possible.
It is also appropriate for users to consider ways of minimizing
adverse impact during the period of interim use.
61. Q. Must provisions for retesting be allowed for job-knowledge
tests, where knowledge of the test content would assist in scoring
well on it the second time?
A. The primary intent of the provision for retesting is that an
applicant who was not selected should be given another chance. Particularly
in the case of job-knowledge tests, security precautions may preclude
retesting with the same test after a short time. However, the opportunity
for retesting should be provided for the same job at a later time,
when the applicant may have acquired more of the relevant job knowledges.
62. Q. Under what circumstances may a selection procedure
be used for ranking?
A. Criterion-related and construct validity strategies are essentially
empirical, statistical processes showing a relationship between
performance on the selection procedure and performance on the job.
To justify ranking under such validity strategies, therefore, the
user need show mathematical support for the proposition that persons
who receive higher scores on the procedure are likely to perform
better on the job.
Content validity, on the other hand, is primarily a judgmental
process concerned with the adequacy of the selection procedure as
a sample of the work behaviors. Use of a selection procedure on
a ranking basis may be supported by content validity if there is
evidence from job analysis or other empirical data that what is
measured by the selection procedure is associated with differences
in levels of job performance. Section 14C(9); see also Section 5G.
Any conclusion that a content validated procedure is appropriate
for ranking must rest on an inference that higher scores on the
procedure are related to better job performance. The more closely
and completely the selection procedure approximates the important
work behaviors, the easier it is to make such an inference. Evidence
that better performance on the procedure is related to greater productivity
or to performance of behaviors of greater difficulty may also support
such an inference.
Where the content and context of the selection procedure are unlike
those of the job, as, for example, in many paper-and-pencil job
knowledge tests, it is difficult to infer an association between
levels of performance on the procedure and on the job. To support
a test of job knowledge on a content validity basis, there must
be evidence of a specific tie-in between each item of knowledge
tested and one or more work behaviors. See Question 79. To justify
use of such a test for ranking, it would also have to be demonstrated
from empirical evidence either that mastery of more difficult work
behaviors, or that mastery of a greater scope of knowledge corresponds
to a greater scope of important work behaviors.
For example, for a particular warehouse worker job, the job analysis
may show that lifting a 50-pound object is essential, but the job
analysis does not show that lifting heavier objects is essential
or would result in significantly better job performance. In this
case a test of ability to lift 50 pounds could be justified on a
content validity basis for a pass/fail determination. However, ranking
of candidates based on relative amount of weight that can be lifted
would be inappropriate.
In another instance, a job analysis may reflect that, for the job
of machine operator, reading of simple instructions is not a major
part of the job but is essential. Thus, reading would be a critical
behavior under the Guidelines. See Section 14C(8). Since the job
analysis in this example did not also show that the ability to read
such instructions more quickly or to understand more complex materials
would be likely to result in better job performance, a reading test
supported by content validity alone should be used on a pass/fail
rather than a ranking basis. In such circumstances, use of the test
for ranking would have to be supported by evidence from a criterion-related
(or construct) validity study.
On the other hand, in the case of a person to be hired for a typing
pool, the job analysis may show that the job consists almost entirely
of typing from manuscript, and that productivity can be measured
directly in terms of finished typed copy. For such a job, typing
constitutes not only a critical behavior, but it constitutes most
of the job. A higher score on a test which measured words per minute
typed, with adjustments for errors, would therefore be likely to
predict better job performance than a significantly lower score.
Ranking or grouping based on such a typing test would therefore
be appropriate under the Guidelines.
63. Q. If selection procedures are administered by an employment
agency or a consultant for an employer, is the employer relieved
of responsibilities under the Guidelines?
A. No. The employer remains responsible. It is therefore expected
that the employer will have sufficient information available to
show: (a) What selection procedures are being used on its behalf;
(b) the total number of applicants for referral by race, sex and
ethnic group; (c) the number of persons, by race, sex and ethnic
group, referred to the employer; and (d) the impact of the selection
procedures and evidence of the validity of any such procedure having
an adverse impact as determined above.
A. CRITERION-RELATED VALIDITY
64. Q. Under what circumstances may success in training
be used as a criterion in criterion-related validity studies?
A. Success in training is an appropriate criterion when it is (1)
necessary for successful job performance or has been shown to be
related to degree of proficiency on the job and (2) properly measured.
Section 14B(3). The measure of success in training should be carefully
developed to ensure that factors which are not job related do not
influence the measure of training success. Section 14B(3).
65. Q. When may concurrent validity be used?
A. A concurrent validity strategy assumes that the findings from
a criterion-related validity study of current employees can be applied
to applicants for the same job. Therefore, if concurrent validity
is to be used, differences between the applicant and employee groups
which might affect validity should be taken into account. The user
should be particularly concerned with those differences between
the applicant group and current employees used in the research sample
which are caused by work experience or other work related events
or by prior selection of employees and selection of the sample.
See Section 14B(4).
66. Q. Under what circumstances can a selection procedure
be supported (on other than an interim basis) by a criterion-related
validity study done elsewhere?
A. A validity study done elsewhere may provide sufficient evidence
if four conditions are met (Sec. 7B):
1. The evidence from the other studies clearly demonstrates that
the procedure was valid in its use elsewhere.
2. The job(s) for which the selection procedure will be used closely
matches the job(s) in the original study as shown by a comparison
of major work behaviors as shown by the job analyses in both contexts.
3. Evidence of fairness from the other studies is considered for
those groups constituting a significant factor in the user's labor
market. Section 7B(3). Where the evidence is not available the user
should conduct an internal study of test fairness, if technically
feasible. Section 7B(3).
4. Proper account is taken of variables which might affect the
applicability of the study in the new setting, such as performance
standards, work methods, representative ness of the sample in terms
of experience or other relevant factors, and the currency of the
study.
67. Q. What does "unfairness of selection procedure"
mean?
A. When a specific score on a selection procedure has a different
meaning in terms of expected job performance for members of one
race, sex or ethnic group than the same score does for members of
another group, the use of that selection procedure may be unfair
for members of one of the groups. See section 16V. For example,
if members of one group have an average score of 40 on the selection
procedure, but perform on the job as well as another group which
has an average score of 50, then some uses of the selection procedure
would be unfair to the members of the lower scoring group. See Question
70.
68. Q. When should the user investigate the question of
fairness?
A. Fairness should be investigated generally at the same time that
a criterion-related validity study is conducted, or as soon thereafter
as feasible. Section 14B(8).
69. Q. Why do the Guidelines require that users look for
evidence of unfairness?
A. The consequences of using unfair selection procedures are severe
in terms of discriminating against applicants on the basis of race,
sex or ethnic group membership. Accordingly, these studies should
be performed routinely where technically feasible and appropriate,
whether or not the probability of finding unfairness is small. Thus,
the Supreme Court indicated in Albermarle Paper Co. v. Moody, 422
U.S. 405, that a validation study was "materially deficient"
because, among other reasons, it failed to investigate fairness
where it was not shown to be unfeasible to do so. Moreover, the
American Psychological Association Standards published in 1974 call
for the investigation of test fairness in criterion-related studies
wherever feasible (pp. 43-44).
70. Q. What should be done if a selection procedure is unfair
for one or more groups in the relevant labor market?
A. The Guidelines discuss three options. See Section 14B(8)(d).
First, the selection instrument may be replaced by another validated
instrument which is fair to all groups. Second, the selection instrument
may be revised to eliminate the sources of unfairness. For example,
certain items may be found to be the only ones which cause the unfairness
to a particular group, and these items may be deleted or replaced
by others. Finally, revisions may be made on the method of use of
the selection procedure to ensure that the probability of being
selected is compatible with the probability of successful job performance.
The Federal enforcement agencies recognize that there is serious
debate in the psychological profession on the question of test fairness,
and that information on that concept is developing. Accordingly,
the enforcement agencies will consider developments in this field
in evaluating actions occasioned by a finding of test unfairness.
71. Q. How is test unfairness related to differential validity
and to differential prediction?
A. Test unfairness refers to use of selection procedures based
on scores when members of one group characteristically obtain lower
scores than members of another group, and the differences are not
reflected in measures of job performance. See Sections 16V and 14B(8)(a),
and Question 67.
Differential validity and test unfairness are conceptually distinct.
Differential validity is defined as a situation in which a given
instrument has significantly different validity coefficients for
different race, sex or ethnic groups. Use of a test may be unfair
to some groups even when differential validity is not found.
Differential prediction is a central concept for one definition
of test unfairness. Differential prediction occurs when the use
of the same set of scores systematically over predicts or under
predicts job performance for members of one group as compared to
members of another group.
Other definitions of test unfairness which do not relate to differential
prediction may, however, also be appropriately applied to employment
decisions. Thus these Guidelines are not intended to choose between
fairness models as long as the model selected is appropriate to
the manner in which the selection procedure is used.
72. Q. What options does a user have if a criterion-related
study is appropriate but is not feasible because there are not enough
persons in the job?
A. There are a number of options the user should consider, depending
upon the particular facts and circumstances such as:
1. Change the procedure so as to eliminate adverse impact (see
Section 6A);
2. Validate a procedure through a content validity strategy, if
appropriate (see Section 14C and Questions 54 and 74);
3. Use a selection procedure validated elsewhere in conformity
with the Guidelines (see Sections 7-8 and Question 66);
4. Engage in a cooperative study with other facilities or users
(in cooperation with such users either bilaterally or through industry
or trade associations or governmental groups), or participate in
research studies conducted by the state employment security system.
Where different locations are combined, care is needed to insure
that the jobs studied are in fact the same and that the study is
adequate and in conformity with the Guidelines (see Sections 8 and
14 and Question 45).
5. Combine essentially similar jobs into a single study sample.
See Section 14B(1).
B. CONTENT VALIDITY
73. Q. Must a selection procedure supported by content validity
be an actual "on the jobö sample of work behaviors?
A. No. The Guidelines emphasize the importance of a close approximation
between the content of the selection procedure and the observable
behaviors or products of the job, so as to minimize the inferential
leap between performance on the selection procedure and job performance.
However, the Guidelines also permit justification on the basis of
content validity of selection procedures measuring knowledges, skills,
or abilities which are not necessarily samples of work behaviors
if: (1) The knowledge, skill, or ability being measured is operationally
defined in accord with Section 14C(4); and (2) that knowledge, skill,
or ability is a prerequisite for critical or important work behaviors.
In addition users may justify a requirement for training, or for
experience obtained from prior employment or volunteer work, on
the basis of content validity, even though the prior training or
experience does not duplicate the job. See Section 14B(6).
74. Q. Is the use of a content validity strategy appropriate
for a procedure measuring skills or knowledges which are taught
in training after initial employment?
A. Usually not. The Guidelines state (Section 14C[1]) that content
validity is not appropriate where the selection procedure involves
knowledges, skills, or abilities which the employee will be expected
to learn "on the job". The phrase "on the job"
is intended to apply to training which occurs after hiring, promotion
or transfer. However, if an ability, such as speaking and understanding
a language, takes a substantial length of time to learn, is required
for successful job performance, and is not taught to those initial
hires who possess it in advance, a test for that ability may be
supported on a content validity basis.
75. Q. Can a measure of a trait or construct be validated
on the basis of content validity?
A. No. Traits or constructs are by definition underlying characteristics
which are intangible and are not directly observable. They are therefore
not appropriate for the sampling approach of content validity. Some
selection procedures, while labeled as construct measures, may actually
be samples of observable work behaviors. Whatever the label, if
the operational definitions are in fact based upon observable work
behaviors, a selection procedure measuring those behaviors may be
appropriately supported by a content validity strategy. For example,
while a measure of the construct "dependability" should
not be supported on the basis of content validity, promptness and
regularity of attendance in a prior work record are frequently inquired
into as a part of a selection procedure, and such measures may be
supported on the basis of content validity.
76. Q. May a test which measures what the employee has learned
in a training program be justified for use in employment decisions
on the basis of content validity?
A. Yes. While the Guidelines (Section 14C[1]) note that content
validity is not an appropriate strategy for knowledges, skills or
abilities which an employee "will be expected to learn on the
job," nothing in the Guidelines suggests that a test supported
by content validity is not appropriate for determining what the
employee has learned on the job, or in a training program. If the
content of the test is relevant to the job, it may be used for employment
decisions such as retention or assignment. See Section 14C(7).
77. Q. Is a task analysis necessary to support a selection
procedure based on content validity?
A. A description of all tasks is not required by the Guidelines.
However, the job analysis should describe all important work behaviors
and their relative importance and their level of difficulty. Sections
14C(2) and 15C(3). The job analysis should focus on observable work
behaviors and, to the extent appropriate, observable work products,
and the tasks associated with the important observable work behaviors
and/or work products. The job analysis should identify how the critical
or important work behaviors are used in the job, and should support
the content of the selection procedure.
78. Q. What is required to show the content validity of
a paper-and-pencil test that is intended to approximate work behaviors?
A. Where a test is intended to replicate a work behavior, content
validity is established by a demonstration of the similarities between
the test and the job with respect to behaviors, products, and the
surrounding environmental conditions. Section 14B(4).
Paper-and-pencil tests which are intended to replicate a work behavior
are most likely to be appropriate where work behaviors are performed
in paper and pencil form (e.g., editing and bookkeeping). Paper-and-pencil
test of effectiveness in interpersonal relations (e.g., sales or
supervision), or of physical activities (e.g., automobile repair)
or ability to function properly under danger (e.g., firefighters)
generally are not close enough approximations of work behaviors
to show content validity.
The appropriateness of tests of job knowledge, whether or not in
pencil and paper form, is addressed in Question 79.
79. Q. What is required to show the content validity of
a test of a job knowledge?
A. There must be a defined, well recognized body of information,
and knowledge of the information must be prerequisite to performance
of the required work behaviors. The work behavior(s) to which each
knowledge is related should be identified on an item-by-item basis.
The test should fairly sample the information that is actually used
by the employee on the job, so that the level of difficulty of the
test items should correspond to the level of difficulty of the knowledge
as used in the work behavior. See Section 14C(1) and (4).
80. Q. Under content validity, may a selection procedure
for entry into a job be justified on the grounds that the knowledges,
skills or abilities measured by the selection procedure are prerequisites
to successful performance in a training program?
A. Yes, but only if the training material and the training program
closely approximate the content and level of difficulty of the job
and if the knowledges, skills or abilities are not those taught
in the training program. For example, if training materials are
at a level of reading difficulty substantially in excess of the
reading difficulty of materials used on the job, the Guidelines
would not permit justification on a content validity basis of a
reading test based on those training materials for entry into the
job.
Under the Guidelines a training program itself is a selection procedure
if passing it is a prerequisite to retention or advancement. See
Section 2C and 14C(17). As such, the content of the training program
may only be justified by the relationship between the program and
critical or important behaviors of the job itself, or through a
demonstration of the relationship between measures of performance
in training and measures of job performance.
Under the example given above, therefore, where the requirements
in the training materials exceed those on the job, the training
program itself could not be validated on a content validity basis
if passing it is a basis for retention or promotion.
C. CONSTRUCT VALIDITY
81. Q. In Section 5, "General Standards for Validity
Studies," construct validity is identified as no less acceptable
than criterion-related and content validity. However, the specific
requirements for construct validity, in Section 14D, seem to limit
the generalizability of construct validity to the rules governing
criterion-related validity. Can this apparent inconsistency be reconciled?
A. Yes. In view of the developing nature of construct validation
for employment selection procedures, the approach taken concerning
the generalizability of construct validity (section 14D) is intended
to be a cautious one. However, construct validity may be generalized
in circumstances where transportability of tests supported on the
basis of criterion-related validity would not be appropriate. In
establishing transportability of criterion-related validity, the
jobs should have substantially the same major work behaviors. Section
7B(2). Construct validity, on the other hand, allows for situations
where only some of the important work behaviors are the same. Thus,
well-established measures of the construct which underlie particular
work behaviors and which have been shown to be valid for some jobs
may be generalized to other jobs which have some of the same work
behaviors but which are different with respect to other work behaviors.
Section 14D(4).
As further research and professional guidance on construct validity
in employment situations emerge, additional extensions of construct
validity for employee selection may become generally accepted in
the profession. The agencies encourage further research and professional
guidance with respect to the appropriate use of construct validity.
V. Records and Documentation
82. Q. Do the Guidelines have simplified record keeping
for small users (employers who employ one hundred or fewer employees
and other users not required to file EEO-1, et seq. reports)?
A. Yes. Although small users are fully covered by Federal equal
employment opportunity law, the Guidelines have reduced their record-keeping
burden. See option in Section 15A(1). Thus, small users need not
make adverse impact determinations nor are they required to keep
applicant data on a job-by-job basis. The agencies also recognize
that a small user may find that some or all validation strategies
are not feasible. See Question 54. If a small user has reason to
believe that its selection procedures have adverse impact and validation
is not feasible, it should consider other options. See Sections
7A and 8 and Questions 31, 36, 45, 66, and 72.
83. Q. Is the requirement in the Guidelines that users maintain
records of the race, national origin, and sex of employees and applicants
constitutional?
A. Yes. For example, the United States Court of Appeals for the
First Circuit rejected a challenge on constitutional and other grounds
to the Equal Employment Opportunity Commission regulations requiring
State and local governmental units to furnish information as to
race, national origin and sex of employees. United States v. New
Hampshire, 539 F.2d 277 (1st Cir. 1976), cert. denied, sub nom.
New Hampshire v. United States, 429 U.S. 1023. The Court held that
the record keeping and reporting requirements promulgated under
Title VII of the Civil Rights Act of 1964, as amended, were reasonably
necessary for the Federal agency to determine whether the state
was in compliance with Title VII and thus were authorized and constitutional.
The same legal principles apply to record keeping with respect to
applicants.
Under the Supremacy Clause of the Constitution, the Federal law
requiring maintenance of records identifying race, sex and national
origin overrides any contrary provision of State law. See Question
8.
The agencies recognize, however, that such laws have been enacted
to prevent misuse of this information. Thus, employers should take
appropriate steps to ensure proper use of all data. See Question
88.
84. Q. Is the user obliged to keep records which show whether
its selection processes have an adverse impact on race, sex, or
ethnic groups?
A. Yes. Under the Guidelines users are obliged to maintain evidence
indicating the impact which their selection processes have on identifiable
race, sex or ethnic groups. Sections 4 A and B. If the selection
process for a job does have an adverse impact on one or more such
groups, the user is expected to maintain records showing the impact
for the individual procedures. Section 15A(2).
85. Q. What are the record keeping obligations of a user
who cannot determine whether a selection process for a job has adverse
impact because it makes an insufficient number of selections for
that job in a year?
A. In such circumstances the user should collect, maintain, and
have available information on the impact of the selection process
and the component procedures until it can determine that adverse
impact does not exist for the overall process or until the job has
changed substantially. Section 15A(2)(c).
86. Q. Should applicant and selection information be maintained
for race or ethnic groups constituting less than 2% of the labor
force and the applicants?
A. Small employers and other small users are not obliged to keep
such records. Section 15A(1). Employers with more than 100 employees
and other users required to file EEO-1 et seq. reports should maintain
records and other information upon which impact determinations could
be made, because section 15A2 requires the maintenance of such information
for "any of the groups for which records are called for by
section 4B above." See also, Section 4A.
No user, regardless of size, is required to make adverse impact
determinations for race or ethnic groups constituting less than
2% of the labor force and the applicants. See Question 16.
87. Q. Should information be maintained which identifies
applicants and persons selected both by sex and by race or ethnic
group?
A. Yes. Although the Federal agencies have decided not to require
computations of adverse impact by subgroups (white males, black
males, white females, black females--see Question 17), the Guidelines
call for record keeping which allows identification of persons by
sex, combined with race or ethnic group, so as to permit the identification
of discriminatory practices on any such basis. Section 4A and 4B.
88. Q. How should a user collect data on race, sex or ethnic
classifications for purposes of determining the impact of selection
procedures?
A. The Guidelines have not specified any particular procedure,
and the enforcement agencies will accept different procedures that
capture the necessary information. Where applications are made in
person, a user may maintain a log or applicant flow chart based
upon visual observation, identifying the number of persons expressing
an interest, by sex and by race or national origin; may in some
circumstances rely upon personal knowledge of the user; or may rely
upon self-identification. Where applications are not made in person
and the applicants are not personally known to the employer, self-identification
may be appropriate. Wherever a self-identification form is used,
the employer should advise the applicant that identification by
race, sex and national origin is sought, not for employment decisions,
but for record-keeping in compliance with Federal law. Such self-identification
forms should be kept separately from the application, and should
not be a basis for employment decisions; and the applicants should
be so advised. See Section 4B.
89. Q. What information should be included in documenting
a validity study for purposes of these Guidelines?
A. Generally, reports of validity studies should contain all the
information necessary to permit an enforcement agency to conclude
whether a selection procedure has been validated. Information that
is critical to this determination is denoted in Section 15 of the
Guidelines by the word "(essential)."
Any reports completed after September 25, 1978, (the effective
date of the Guidelines) which do not contain this information will
be considered incomplete by the agencies unless there is good reason
for not including the information. Users should therefore prepare
validation reports according to the format of Section 15 of the
Guidelines, and should carefully document the reasons if any of
the information labeled "(essential)" is missing.
The major elements for all types of validation studies include
the following:
When and where the study was conducted.
A description of the selection procedure, how it is used, and the
results by race, sex, and ethnic group.
How the job was analyzed or reviewed and what information was obtained
from this job analysis or review.
The evidence demonstrating that the selection procedure is related
to the job. The nature of this evidence varies, depending upon the
strategy used.
What alternative selection procedures and alternative methods of
using the selection procedure were studied and the results of this
study.
The name, address and telephone number of a contact person who
can provide further information about the study.
The documentation requirements for each validation strategy are
set forth in detail in Section 15 B, C, D, E, F, and G. Among the
requirements for each validity strategy are the following:
Criterion-Related Validity
A description of the criterion measures of job performance, how
and why they were selected, and how they were used to evaluate employees.
A description of the sample used in the study, how it was selected,
and the size of each race, sex, or ethnic group in it.
A description of the statistical methods used to determine whether
scores on the selection procedure are related to scores on the criterion
measures of job performance, and the results of these statistical
calculations.
Content Validity
The content of the job, as identified from the job analysis.
The content of the selection procedure.
The evidence demonstrating that the content of the selection procedure
is a representative sample of the content of the job.
Construct Validity
A definition of the construct and how it relates to other constructs
in the psychological literature.
The evidence that the selection procedure measures the construct.
The evidence showing that the measure of the construct is related
to work behaviors which involve the construct.
90. Q. Although the records called for under "Source
Data", Section 15B(11) and section 15D(11), are not listed
as "Essential", the Guidelines state that each user should
maintain such records, and have them available upon request of a
compliance agency. Are these records necessary? Does the absence
of complete records preclude the further use of research data compiled
prior to the issuance of the Guidelines?
A. The Guidelines require the maintenance of these records in some
form "as a necessary part of the study." Section 15A(3)(c).
However, such records need not be compiled or maintained in any
specific format. The term "Essential" as used in the Guidelines
refers to information considered essential to the validity report.
Section 15A(3)(b). The Source Data records need not be included
with reports of validation or other formal reports until and unless
they are specifically requested by a compliance agency. The absence
of complete records does not preclude use of research data based
on those records that are available. Validation studies submitted
to comply with the requirements of the Guidelines may be considered
inadequate to the extent that important data are missing or there
is evidence that the collected data are inaccurate.
91. Q. What constitutes a "reasonable investigation
of alternatives" as that phrase is used in the Answer to Question
49?
A. The Uniform Guidelines call for a reasonable investigation of
alternatives for a proposed selection procedure as a part of any
validity study. See Section 3B and Questions 48 and 49. A reasonable
investigation of alternatives would begin with a search of the published
literature (test manuals and journal articles) to develop a list
of currently available selection procedures that have in the past
been found to be valid for the job in question or for similar jobs.
A further review would then be required of all selection procedures
at least as valid as the proposed procedure to determine if any
offer the probability of lesser adverse impact. Where the information
on the proposed selection procedure indicates a low degree of validity
and high adverse impact, and where the published literature does
not suggest a better alternative, investigation of other sources
(for example, professionally-available, unpublished research studies)
may also be necessary before continuing use of the proposed procedure
can be justified. In any event, a survey of the enforcement agencies
alone does not constitute a reasonable investigation of alternatives.
Professional reporting of studies of validity and adverse impact
is encouraged within the constraints of practicality.
92. Q. Do significant differences between races, sexes,
or ethnic groups on criterion measures mean that the criterion measures
are biased?
A. Not necessarily. However, criterion instruments should be carefully
constructed and data collection procedures should be carefully controlled
to minimize the possibility of bias. See Section 14B(2). All steps
taken to ensure that criterion measures are free from factors which
would unfairly alter the scores of members of any group should be
described in the validation report, as required by Section 15B(5)
of the Guidelines.
93. Q. Can the use of a selection procedure which has been
shown to be significantly related to only one or two job duties
be justified under the Guidelines?
A. Yes. For example, where one or two work behaviors are the only
critical or important ones, the sole use of a selection procedure
which is related only to these behaviors may be appropriate. For
example, a truck driver has the major duty of driving; and in addition
handles customer accounts. Use of a selection procedure related
only to truck driving might be acceptable, even if it showed no
relationship to the handling of customer accounts. However, one
or two significant relationships may occur by chance when many relationships
are examined. In addition, in most practical situations, there are
many critical and/or important work behaviors or work outcomes.
For these reasons, reliance upon one or two significant relationships
will be subject to close review, particularly where they are not
the only important or critical ones.
[Questions and Answers 91-93 read as added, effective May 2,
1980.]
94. Proposed. Q. Do federal employment nondiscrimination laws apply to employers and other UGESP-covered entities when they use the Internet and related electronic data processing technologies for recruitment and selection?
A. Yes. Title VII and Executive Order 11246, as amended; apply when covered employers use the Internet and related electronic data processing technologies for recruitment and selection. Title VII covers private and public employers, employment agencies, and labor organizations as these terms are defined at 42 U.S.C. 2000e; id. at 2000e–16 (Federal Government). Title VII covers discrimination on the bases of race, color, religion, sex, or national origin. Executive Order 11246, as amended, which covers Federal Government contractors, their subcontractors, and their vendors, also prohibits employment discrimination because of race, color, religion, sex, or national origin.
95. Proposed. Q. Is Internet recruitment, like traditional recruitment, exempt from UGESP requirements?
A. Yes. As a business practice, recruitment involves identifying and attracting potential recruits to apply for jobs. Under UGESP, ‘‘recruitment practices are not considered * * * to be selection procedures,’’ 21 and the UGESP requirements geared to monitoring selection procedures do not apply. Just as recruiters traditionally researched paper copies of professional and employer publications and listings to identify potential recruits, so recruiters now search huge bodies of information online—which include new resources such as personal Web sites and a variety of resume databases—for the same purpose. Online recruitment also involves organizing the search results into usable formats.
96. Proposed. Q. For recordkeeping purposes, what is meant by the term ‘‘applicant’’ in the context of the Internet and related electronic data processing technologies?
A. The term ‘applicant’ is discussed in the 1979 set of questions and answers promulgated by the agencies to clarify and provide a common interpretation of UGESP.22 Question & Answer 15 of that publication states:
The precise definition of the term ‘applicant’ depends upon the user’s recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities.
In order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred:
- The employer has acted to fill a particular position;
- The individual has followed the employer’s standard procedures for submitting applications; and
- The individual has indicated an interest in the particular position.
To elaborate on the three prongs of this test:
1. The employer has acted to fill a particular position.
An example under the first prong is:
Example A: Individuals who register online for Customer Service Representative positions with an Internet and cable television service provider are asked to complete online personal profiles for the employer’s resume database. The company acts to fill two vacancies at its Greater New York Service Center, and identifies 200 recruits from the database who have indicated that they are available to work in the New York area. One hundred of these people respond affirmatively and timely to the employer’s inquiry about current interest in the particular New York vacancies. Even if the employer chooses to interview only 25 people for the position, all 100 are UGESP ‘‘applicants.’’
2. The individual has followed the employer’s standard procedures for submitting applications. If everyone who applies online must complete an online personal profile, only those individuals who do so can be UGESP applicants. If job seekers must use an electronic kiosk or contact a store manager to apply for a sales position, only those who do so can be UGESP applicants. If an employer e-mails online job seekers to ask if they are currently interested in a particular vacancy, only those who meet the employer’s deadline can be UGESP applicants. These procedures and directions must be nondiscriminatory because recruitment and the application processes are subject to Title VII and Executive Order 11246.
3. The individual has indicated an interest in the particular position. The core of being an ‘‘applicant’’ is asking to be hired to do a particular job for a specific employer. An individual can only accurately assess her interest in an employment opportunity of which she is aware.
With respect to Internet recruiting, this means that people who post resumes in third party resume banks or on personal Web sites are not UGESP ‘‘applicants’’ for all employers who search those sites. By posting a resume, the individual is advertising her credentials to the world and indicating a willingness to consider applying for new positions that may be brought to her attention. The individual is not indicating an interest in a particular position with a specific employer. If an employer contacts this individual about a particular position after finding her resume or personal profile online, and the individual indicates an interest in that position, then the individual becomes a UGESP ‘‘applicant,’’ if she also meets the second prong of the test set forth above. Similarly, if an employer contacts an individual about a particular position in response to an unsolicited resume submitted online, and the individual indicates an interest in that position, then the individual becomes a UGESP ‘‘applicant’’ if she also meets the second prong of the test. Furthermore, even if the individual expresses an interest in a whole category of positions in response to an employer’s solicitation—for example, marketing opportunities—the individual is not an applicant but is identifying the kinds of positions in which she may be interested. She is not indicating an interest in a particular position with a specific employer. It is only with respect to a particular position that an individual can assess her interest and choose whether or not to apply.
If an individual submits a resume or personal profile repeatedly to the same employer (for example, by adding numerous online job listings to her ‘‘shopping cart’’) or simply sends resumes (for example, by using automated online tools that identify job listings and submit resumes), the individual again is identifying the kinds of positions in which she is interested and is not automatically an applicant.
In certain circumstances, however, actions by a job seeker in response to an employer-hosted job listing will display hallmarks of an actual, individual assessment of interest in a particular position that the employer is acting to fill. For example, a job seeker’s interest in a particular position becomes evident when the job seeker complies with an employer’s procedural requirements that are unique to that position. Thus, completion and submission of an electronic application form, which form is unique for a particular position, indicates that the job seeker has a specific interest in that particular position.
Example B: Game Park is hiring park rangers, who perform specified duties and receive a starting salary within a particular range. Game Park posts an announcement on its Web page stating that it is accepting applications for its next park ranger training class, which starts in six months, and that all people who complete the required forms within one month will be evaluated for entrance into the class. Job seekers are directed to complete a detailed questionnaire asking about their experience in wildlife management, forest fire prevention, firearm safety and first aid. This profile is only suitable for the position of park ranger; it cannot be used for other Game Park positions. When these profiles are compiled into a database, all of the job seekers will be ‘‘applicants’’ if they satisfy the second prong of the above-referenced test.
97. Proposed. Q. Are all the search criteria that employers use subject to disparate impact analysis?
A. Yes. All search criteria used are subject to disparate impact analysis. Disparate impact analysis can be based on Census or workforce data. If a disparate impact is shown, the employer must demonstrate that its criteria are job-related and consistent with business necessity for the job in question. 42 U.S.C. 2000e–2(k).
Example C: An employer has two large printing plants. The company’s employment Web page encourages individuals who visit to register to be considered as printers by submitting personal profiles online. Some basic identifying information is required, and one question asks for total years of printing experience. The employer authorizes the hiring of three new printers at one of the plants. To identify job seekers, Human Resources turns to several resources including its internal database. Even before it identifies those who properly followed the employer’s online procedures and who are actually interested in these positions at this time, the employer searches the database to identify job seekers with two years printing experience. The search identifies 120 individuals, of whom only 50 express an interest in the positions and followed all the application procedures. These 50 people are UGESP applicants. However, the impact of the employer’s screen for two years’ printing experience can be analyzed using workforce and Census data. For example, the experience requirement could be assessed based on relevant labor force statistics. If a disparate impact on a protected group were shown, then the employer would have to show that two years of experience was job-related and consistent with business necessity for its printing positions.
98. Proposed. Q. Are employment tests, including those administered online, subject to UGESP?
A. Yes. Online tests, including tests of specific or general skills, are selection procedures rather than recruitment under UGESP because the test results are used as ‘‘a basis for making employment decisions.’’ 24 Employers and recruiters who use such tests should maintain records or other information ‘‘which will disclose the impact which its tests * * * have upon employment opportunities of persons by identifiable race, sex or ethnic group.’’ 25 If employment tests have a disparate impact, they are lawful only if they are ‘‘job-related for the position in question and consistent with business necessity.’’ 42 U.S.C. 2000e–2(k)(1)(A)(i).
[Questions and Answers 94-98 are proposed guidelines.]
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