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.
October 27, 2014
This responds to your letters to U.S. Equal Employment Opportunity Commission (EEOC) Chair Jenny Yang and Commissioner Chai Feldblum about applying the Uniform Guidelines on Employee Selection Procedures (UGESP) and its recordkeeping requirements to federal agency hiring practices. As you know, the EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the bases of race, color, sex, national origin, and religion by employers, including federal executive agencies. Under Title VII, a practice or standard that has a statistically significant negative effect on a protected group is unlawful unless it is job related and consistent with business necessity. The UGESP details methods for validating tests and selection procedures that are found to have a disparate impact based on race, sex or ethnic group, and thus for determining whether they meet the Title VII standard of job related and consistent with business necessity.
The EEOC is one of four federal agencies that jointly issued the UGESP in 1978. Another UGESP-issuing agency, the Office of Personnel Management’s precursor, the Civil Service Commission, at the time handled all government personnel matters including federal employee discrimination claims.(1) Since issuance of the UGESP, the Civil Service Commission’s authority over employment discrimination claims against the federal government has been transferred to the EEOC.(2)
The EEOC has applied the UGESP’s requirements to federal agencies where relevant. More specifically, the EEOC’s Office of Federal Operations has found that UGESP record keeping requirements apply to federal agencies; that EEOC may make adverse inferences from an agency’s failure to comply with these requirements; and that where evidence of a disparate impact exists, an employer must provide validity studies or other evidence to show that the practice causing the disparate impact is job related and consistent with business necessity.(3)
We hope this information is helpful to you. Please note, however, that this informal discussion does not constitute a “written interpretation or opinion” of the EEOC as detailed in section 713 of Title VII or EEOC Regulations 29 C.F.R. § 1601.93.
Carol R. Miaskoff
Acting Associate Legal Counsel
1 The other UGESP agencies were the Departments of Labor and Justice.
2 The Civil Service Commission’s authority over federal employee discrimination claims was transferred to EEOC under President Carter’s “Reorganization Plan Number 1 of 1978”. 43 Fed. Reg. 19807 (May 9, 1978).
3 See generally, General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (finding no ADEA violation in a contract that provided full health care benefits only to retirees who were over age 50 by a certain date, because “the statute does not mean to stop an employer from favoring an older employee over a younger one.”).
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