Title VII of the Civil Rights Act of 1964 was enacted to prohibit discrimination on the basis of race, color, national origin, sex, and religion in the workplace. Title VII, in some form or another, applies to nearly all American employers with 15 or more employees. The Equal Employment Opportunity Commission (EEOC) is tasked with enforcing Title VII. Employers who discriminate against employees in violation of Title VII face the threat of civil litigation, including liability for damages and attorney fees.
To help employers avoid Title VII violations in the hiring process, the EEOC has created regulations setting forth uniform guidelines for employers to follow in selecting employees. These guidelines were designed to “provide a framework” for employers by setting forth the acceptable use of testing and other selection procedures. This article summarizes the EEOC uniform guidelines for employee selection procedures.
Discrimination Defined
The EEOC guidelines state, “Procedure having adverse impact constitutes discrimination unless justified.” They go on to say that any procedure used in the selection process that has an adverse impact on the members of any race or sex will be considered discriminatory unless the procedure is otherwise validated (see “validation” below). Similarly, employers are instructed that where two or more procedures serve an employer’s legitimate interest in selecting employees, the employer should use the procedure that has the lesser adverse impact on members of a particular sex or race.
Information on Impact
Pursuant to the guidelines, employers are to create and retain for inspection by the EEOC information disclosing the impact that their selection procedures, like screening tests, have upon the sexes and upon persons of different races. Generally, if this information discloses that the overall selection process does not have an adverse impact on any category of applicants, the EEOC does not require the employer to evaluate each individual component of the process. If, however, the information reveals that the overall selection process does have an adverse impact, the employer must evaluate the individual components.
Validation
When an impact study reveals that an employment selection procedure has an adverse impact on members of a particular sex or race, the employer must create and maintain documentation of validation studies for each individual component of the process that is found to have an adverse impact.
The following types of evidence are acceptable to meet this requirement:
- Documentation showing criterion-related validity of the selection procedure
- Documentation showing content validity of the selection procedure
- Documentation showing construct validity of the selection procedure
- Documentation from other studies showing validity of the selection procedure
- Documentation showing why a validity study cannot or need not be performed and why continued use of the procedure is consistent with the law
The guidelines state that while not all selection procedures have to be validated, formal or scored procedures that have an adverse impact should be validated if technically feasible. If validation is not possible, the procedure having the adverse impact should be eliminated. Where informal or non-scored procedures have an adverse impact, the employer should either eliminate the procedure having the adverse impact or convert the process to a more formal one that can be validated.