The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.


Title VII: UGESP

February 3, 2005

Dear

This letter responds to your question concerning whether the Uniform Guidelines on Employee Selection Procedures (UGESP) require validation of your client's employment testing procedures. Your January 7, 2005 letter describes a procedure whereby applicants for entry-level jobs, after being offered employment generally, undergo a test of their physical abilities. According to your letter, this test is used to "match" applicants with the physical requirements of different jobs. You claim that the test is a post-offer medical exam and is not a "selection in or out tool."

The Americans with Disabilities Act (ADA) rules concerning disability-related questions and medical examinations[1] and UGESP requirements are not mutually exclusive. In other words, your client's test could be considered both a medical exam subject to ADA requirements, and a selection procedure subject to UGESP.

Further, the need for validation can be triggered by the existence of an adverse impact for a particular job, even where an overall selection procedure shows no adverse impact. The UGESP enforcement agencies addressed this issue in question 27 of its Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection, 44 Fed. Reg. 11996, 12000 (Mar. 2, 1979) (hereinafter "Q&A"). For your convenience, this Q&A is reprinted below:

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.

As you have acknowledged, only a very small percentage of women qualify for the most physically demanding jobs under your client's testing procedure. Thus, an adverse impact exists, and the selection procedure for this job category should be validated. For further reference, both the UGESP regulations and the Q&A[2] provide detailed information concerning how and under what circumstances validation or other justifications may be accomplished.

Additionally, even assuming that all employees receive the same pay and future advancement opportunities once they begin working, your client's selection procedure may have an economic impact. Under your client's selection procedure, as you have explained it, applicants do not actually begin working until a position becomes available within their assigned job category applicant pool. If an employee qualifies for the hardest to fill, most demanding job category, positions may be immediately available. If, however, an employee only qualifies for a job category with a large pool of qualified candidates, she may wait a significant length of time before being hired to actually start working (and earning a paycheck). Thus, even though the employees receive the same starting pay, there may be economic consequences to assigning their job categories.

Please note, the EEOC cannot determine whether your client's testing procedure is compliant with Title VII outside the context of an investigation. Enforcement agencies, including EEOC, do not assure the validity of a procedure prior to a review or investigation. See Q&A, Q. 34, 44 Fed. Reg. 11996, 12001 (Mar. 2, 1979). As such, this letter does not constitute an official opinion of the Equal Employment Opportunity Commission. We hope this letter provides you with general guidance to aid your efforts to counsel your client.

Sincerely,

Raymond L. Peeler
Senior Attorney Advisor


[1] Under the ADA, if the test is considered a physical agility or physical fitness test, it must be performed pre-offer. If, on the other hand, it is considered a medical examination, it must be conducted post-offer. For further guidance on this issue, including criteria for deciding whether your client's test is a medical examination under the ADA, please consult EEOC's ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (Oct. 10, 1995), available on our web site at www.eeoc.gov/policy/guidance.html. If the test is a medical examination, we question whether administering it prior to the offer of a particular job complies with the ADA. See EEOC Enforcement Guidance on the Application of the ADA to Contingent Workers Placed by Temporary Agencies and other Staffing Firms, at Q. 2 (Dec. 22, 2000), also available at www.eeoc.gov/policy/guidance.html. (noting that a staffing firm that refers clients to a roster for future employment has not made an offer of employment until the individual is assigned to a particular position with an employer).

[2] A second Q&A was published at 45 Fed. Reg. 29530 (May 2, 1980).


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