Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures

This technical assistance document was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.

Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures

This joint EEOC-DOJ-OPM-DOL-Treasury document explains the 1978 Uniform Guidelines on Employee Selection Procedures (UGESP), and provides additional guidance to employers and other users, psychologists, and investigators, compliance officers and other Fed

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

FEDERAL REGISTER, / VOL. 44, NO. 43 / FRIDAY, MARCH 2, 1979

[6570-06-M]

Title 29—Labor

CHAPTER XIV—EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION

PART 1607—UNIFORM GUIDELINES
ON EMPLOYEE SELECTION PROCE¬DURES (1978)

Title 5—Administrative Personnel
OFFICE OF PERSONNEL
MANAGEMENT PART

300—EMPLOYMENT
(GENERAL)

Title 28—Judicial Administration
CHAPTER I—DEPARTMENT OF
JUSTICE

PART 50—STATEMENTS OF POLICY

Title 31—Money and Finance:
Treasury

CHAPTER 1—MONETARY OFFICES:
DEPARTMENT OF THE TREASURY

PART 51—FISCAL ASSISTANCE TO
STATE AND LOCAL GOVERNMENTS

Title 41—Public Contracts and
Property Management

CHAPTER 60—OFFICE OF FEDERAL
CONTRACT COMPLIANCE PROGRAMS,
DEPARTMENT OF LABOR

PART 60-3—UNIFORM GUIDELINES
ON EMPLOYEE SELECTION
PROCEDURES (1978)

Adoption of Questions and Answers To Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures

AGENCIES: Equal Employment Opportunity Commission, Office of Personnel Management, Department of Justice, Department of Labor and Department of Treasury.

ACTION: Adoption of questions and answers designedto clarify and provide a common interpretation of the Uniform Guidelines on Employee Selection Procedures.

SUMMARY: The Uniform Guidelines on Employee Selection Procedures were issued by the five Federal agencies having primary responsibility for the enforcement of Federal equal employment opportunity laws, to establish a uniform Federal government position. See 43 FR 38290, et seq. (Aug. 25, 1978) and 43 FR 40223 (Sept. 11, 1978). They became effective on September 25, 1978, The issuing agencies recognize the need for a common interpretation of the Uniform Guidelines, as well as the desirability of providing additional guidance to employers and other users, psychologists, and investigators, compliance officers and other Federal enforcement personnel. These Questions and Answers are intended to address that need and to provide such guidance.

EFFECTIVE DATE: March 2, 1979.

FOR FURTHER INFORMATION CONTACT:

A. Diane Graham, Assistant Director, Affirmative Employment Programs, Office of Personnel Management, 1900 E Street, NW., Washington, D.C. 20415, 202/632-4420.

James Hellings, Special Assistant to the Assistant Director, Intergovernmental Personnel Programs, Office of Personnel Management, 1900 E Street, NW., Washington, D.C. 20415, 202/632-6248.

Kenneth A. Millard, Chief, State and Local Section, Personnel Research and Development Center, Office of Personnel Management, 1900 E St., NW., Washington, D.C. 20415,202-632-6238.

Peter C. Robertson, Director, Office of Policy Implementation, Equal Employment Opportunity Commission, 2401 E Street, NW., Washington, D.C. 20506, 202/634-7060.

David L. Rose, Chief, Employment Section, Civil Rights Division, Department of Justice, 10th Street and Pennsylvania Avenue, NW., Washington, D.C. 20530, 202/633-3831.

Donald J. Schwartz, Psychologist, Office of Federal Contract Compliance Programs, Room C-3324, Department of Labor, 200 Constitution Avenue, NW., Washington, D.C. 20210, 202/523-9426.

Herman Schwartz, Chief Counsel, Office of Revenue Sharing, Department of the Treasury, 2401 E Street, NW., Washington, D.C. 20220, 202/ 634-5182.

James O. Taylor. Jr. Research Psychologist. Office of Systemic Programs, Equal Employment Opportunity Commission., 2401 E St., NW., Washington, D.C. 20506. 202/2543036.

INTRODUCTION

The problems addressed by the Uniform Guidelines on Employee Selection Procedures (43 FR 38290 et seq. August 25, 1978) are numerous and important, and some of them are complex. The history of the development of those Guidelines is set forth in the introduction to them (43 FR 38290-95). The experience of the agencies has been that a seriesof answers to commonly asked questions is helpful in providing guidance not only to employers and other users, but also to psychologists and others who are called upon to conduct validity studies, and to investigators, compliance officers and other Federal personnel who have enforcement responsibilities.

The Federal agencies which issued the Uniform Guidelines—the Departments of Justice and Labor, the Equal Employment Opportunity Commission, the Civil Service Commission (which has been succeeded in relevant part by the Office of Personnel Management), and the Office of Revenue Sharing, Treasury Department—recognize that the goal of a uniform position on these issues can best be achieved through a common interpretation of the same guidelines. The following Questions and Answers are part of such a common interpretation. The material included is intended to interpret and clarify, but not to modify, the provisions of the Uniform Guidelines. The questions selected are commonly asked questions in the field and those suggested by the Uniform Guidelines themselves and by the extensive comments received on the various sets of proposed guidelines prior to their adoption. Terms are used in the questions and answers as they are defined in the Uniform Guidelines.

The agencies recognize that additional questions may be appropriate for similar treatment ata later date and contemplate working together to provide additional guidance in interpreting the Uniform Guidelines. Users and other interested persons are invited to submit additional questions.

ELEANOR HOLMES NORTON,
Chair, Equal Employment
Opportunity Commission.

ALAN K. CAMPBELL,
Director, Office of
Personnel Management.

DREW S. DAYS III,
Assistant Attorney General,
Civil Rights Division,
Department of Justice.

WELDEN ROUGEAU,
Director, Office of Federal
Contract Compliance,
Department of Labor.

KENT A, PETERSON,
Acting Deputy Director,
Office of Revenue Sharing.

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.* 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 officers 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. Stateor 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

III. GENERAL QUESTIONS CONCERNING VALIDITY AND THE USE OF SELECTION PROCEDURES

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.
   

IV. TECHNICAL STANDARDS

A. CRITERION-RELATED VALIDITY

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 theapplicability of the study in the new setting, such as performance standards, work methods, representativeness of the sample in terms of experience or other relevant factors, and the currency of the study.
   

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 associationsor 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

C. CONSTRUCT VALIDITY

V. RECORDS AND DOCUMENTATION

1. 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.
2. 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 isa representative sample of the content of the job.
3. Construct Validity A definition of the construct, how itrelates 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.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 29 CFR Part 1607 OFFICE OF PERSONNEL
MANAGEMENT 5 CFR Part 300 DEPARTMENT OF JUSTICE 28 CFR Part 50 DEPARTMENT OF THE TREASURY 31 CFR Part 51 DEPARTMENT OF LABOR Office of Federal Contract
Compliance Programs 41 CFR Part 60-3

Adoption of Additional Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures

AGENCIES: Equal Employment Opportunity Commission, Office of Personnel Management, Department of Justice, Department of Labor and Department of the Treasury. ACTION: Adoption of additional questions and answers designed to clarify and provide a common interpretation of the Uniform Guidelines on Employee Selection Procedures. SUMMARY: The agencies which issued the Uniform Guidelines on Employee Selection Procedures (43 FR 38290 et seq., August 25, 1978 and 43 FR 40223, Sept. 11, 1978, 29 CFR Part 1607, 41 CFR Part 60-3, 28 CFR 50.14, 5 CFR 300.103(c), and 31 CFR 51.53) have previously recognized the need for a common interpretation of the Uniform Guidelines, as well as the desirability of providing additional guidance to users, psychologists and enforcement personnel, by publishing Questions and Answer (44 FR 11996, March 2, 1979). These Additional Questions and Answers are intended to provide additional guidance in interpreting the Uniform Guidelines. EFFECTIVE DATE: May 2, 1980 FOR FURTHER INFORMATION CONTACT: Pamela Dillon, Chief, Branch of Special Analyses, Room N5718, Office of Federal Contract Compliance Programs, Department of Labor, Washington, D.C. 20210, 202-633-6924. Frederick Dorsey, Director, Office of Policy Implementation, Equal Employment Opportunity Commission, 2401 E Street, N.W., Washington, D.C. 20506, 202-634-7060. A. Diane Graham, Assistant Director, Affirmative Employment Programs, Office of Personnel Management, 1900 E Street, N.W., Washington, D.C. 20415, 202-632-4420. James Hellings, Special Assistant to the Assistant Director, Intergovernmental Personnel Programs, Office of Personnel Management. 1900 E Street, N.W., Washington, D.C. 20415, 202-632-6248. Arnold Intrater, Chief Counsel, Office of Revenue Sharing, Department of the Treasury, 2401 E Street, N.W., Washington, D.C. 20220, 202-634-5182. Kenneth A. Millard, Chief, State and Local Branch, Personnel Research and Development Center, Office of Personnel Management. 1900 E Street, N.W., Washington, D.C. 20414, 202-632-6238. David L. Rose, Chief, Federal Enforcement Section, Civil Rights Division, Department of Justice, 10th Street and Pennsylvania Avenue, N.W. Washington, D.C. 20530, 202-633-3831. Donald J. Schwartz, Personnel Research Psychologist. Office of Systemic Programs, Equal Employment Opportunity Commission, 2401 E Street, N.W., Washington, D.C. 20506, 202-634-6960.

Introduction

Because of the number and importance of the issues addressed in the Uniform Guidelines on Employee Selection Procedures (43 FR 38290), and the dual needs of providing a common interpretation and providing guidance to employers and other users, psychologists and others who are called upon to conduct validity studies, and Federal personnel who have enforcement responsibilities, the five issuing Federal agencies adopted and issued Questions and Answers (44 FR 11996, Mar. 2, 1979) to clarify and interpret the Uniform Guidelines. The issuing agencies recognized that it might be appropriate to address additional questions at a later date. By letter dated October 22, 1979, the American Psychological Association, acting through its Committee on Psychological Tests and Assessment, brought to the attention of the government concerns as to the consistency of the Uniform Guidelines with the "Standards for Educational, and Psychological Tests," referred to in the guidelines as the "A.P.A. Standards". The Committee noted in its letter of October 22, 1979, that it had found a high degree of consistency between the proposed Uniform Guidelines and the A.P.A. Standards on February 17, 1978, and that an attempt to resolve remaining inconsistencies was made in the published Uniform Guidelines. Stressing the view that the real impact of the Guidelines can only be fully assessed after agency instructions have been issued and applied, and after court rulings, however the Committee raised areas of possible inconsistency between the Uniform Guidelines, as applied, and the A.P.A. Standards. In particular, the letter raises (among others) three specific concerns: (1) that the Guidelines might call for "a more rigid demand for a search for alternatives than we would deem consistent with acceptable professional practices"; (2) that, with respect to criteria for criterion related validity studies, the Guidelines failed adequately to recognize that "a total absence of bias can never be assured" and that the standards of the profession required only that "there has been a competent professional handling of this problem"; and (3) for criterion related validity studies "in some circumstances there may exist just one or two critical job duties, and that in such cases sole reliance on such a single selection procedure relevant to the critical duties would be entirely appropriate". Staff of the Federal agencies responded, by letter of January 17, 1980, that "some of the problems discussed in your letter may be due to a lack of a clearly articulated position of the Federal agencies on these matters, rather than to actual differences between the Uniform Guidelines and professional standards." The letter of January 17, 1980, enclosed a draft of three additional Questions and Answers designed to clarify the agencies' interpretation of those three issues, and requested comments on the additional Questions and Answers, and on the consistency of the Uniform Guidelines so interpreted with professional standards. By letter of February 11, 1980, the American Psychological Association, acting through it Committee on Psychological Tests and Assessment, found each of the Questions and Answers to be helpful and has judged "given the accuracy of our interpretation of these Q's and A's, that these guidelines have attained consistency with the Standards in those areas in which comparisons can now be meaningfully made." The validation provisions of the Uniform Guidelines are intended to reflect the standards of the psychological profession (Section 5C, Uniform Guidelines). The issuing agencies are of the view that the three additional Questions and Answers accurately reflect the proper interpretation of the Uniform Guidelines with respect to the three areas of concern raised by the A.P.A. Accordingly, the agencies hereby adopt the three Questions and Answers set forth below to clarify and provide a common interpretation of the Uniform Guidelines. These three additional Questions and Answers supplement the original Questions and Answers published on March 2, 1979. (44 FR 11996). As with the originals, these Questions and Answers use terms as they are defined in the Uniform Guidelines, and are intended to interpret and clarify, but not to modify, the provisions of the Uniform Guidelines. Questions and Answers 91 and 92 are published exactly as written and attached to the letter of January 17, 1980. As the letter from the A.P.A. correctly noted, the Answer to Question 91 implies that the obligation of a user to study unpublished, professionally available research reports is dependent not only on the degree of adverse impact, but also upon the absolute number of persons who might be adversely affected. Where the number of persons affected is likely to be large, a thorough inquiry into unpublished sources is likely to be appropriate, but where the number is small, a cursory review may be sufficient. The answer to Question 93 has been modified by the addition of an example, as suggested by the letter from A.P.A., and by clarifying language at the end of the last sentence. The agencies recognize that additional questions may arise at a later date that warrant a formal, uniform response, and contemplate working together to provide additional guidance interpreting the Uniform Guidelines.

Supplemental Questions and Answers

* Section references throughout these, questions and answers are to the sections of the Uniform Guidelines on Employee Selection Procedures (herein referred to as "Guidelines") that were published by the Equal Employment Opportunity Commission, the Civil Service Commission, the Department of Labor, and the Department of Justice on Aug 25, 1978. 43 FR 38290. The Uniform Guidelines were adopted by the Office of Revenue Sharing of the Department of Treasury, on September 11, 1978. 43 FR 40223