The ultimate sanctions under title VI are the refusal to grant an applicationfor assistance and the termination of assistance being rendered. Before thesesanctions may be invoked, the Act requires completion of the procedures calledfor by section 602. That section require the department or agency concerned (1)to determine that compliance cannot be secured by voluntary means, (2) toconsider alternative courses of action consistent with achievement of theobjectives of the statutes authorizing the particular financial assistance, (3)to afford the applicant an opportunity for a hearing, and (4) to complete theother procedural steps outlined in section 602, including notification to theappropriate committees of the Congress.

In some instances, as outlined below, it is legally permissible temporarilyto defer action on an application for assistance, pending initiation andcompletion of section 602 procedures—including attempts to secure voluntary compliance with title VI. Normally, this course of action isappropriate only with respect to applications for noncontinuing assistance orinitial applications for programs of continuing assistance. It is not availablewhere Federal financial assistance is due and payable pursuant to a previouslyapproved application.

Whenever action upon an application is deferred pending the outcome of ahearing and subsequent section 602 procedures, the efforts to secure voluntarycompliance and the hearing and such subsequent procedures, if found necessary,should be conducted without delay and completed as soon as possible.

Compliance with the nondiscrimination mandate of title VI may often beobtained more promptly by appropriate court action than by hearings andtermination of assistance. Possibilities of judicial enforcement include (1) asuit to obtain specific enforcement of assurances, covenants running withfederally provided property, statements or compliance or desegregation plansfiled pursuant to agency regulations, (2) a suit to enforce compliance withother titles of the 1964 Act, other Civil Rights Acts, or constitutional orstatutory provisions requiring nondiscrimination, and (3) initiation of, orintervention or other participation in, a suit for other relief designed tosecure compliance.

The possibility of court enforcement should not be rejected withoutconsulting the Department of Justice. Once litigation has been begun, theaffected agency should consult with the Department of Justice before taking anyfurther action with respect to the noncomplying party.

A number of effective alternative courses not involving litigation may alsobe available in many cases. These possibilities include (1) consulting with orseeking assistance from other Federal agencies (such as the Contract ComplianceDivision of the Department of Labor) having authority to enforcenondiscrimination requirements; (2) consulting with or seeking assistance fromState or local agencies having such authority; (3) bypassing a recalcitrantcentral agency applicant in order to obtain assurances from, or to grantassistance to complying local agencies; and (4) bypassing all recalcitrant non-Federal agencies and providing assistance directly to the complying ultimatebeneficiaries. The possibility of utilizing such administrative alternativesshould be considered at all stages of enforcement and used as appropriate orfeasible.

Title VI requires that a concerted effort be made to persuade anynoncomplying applicant or recipient voluntarily to comply with title VI. Effortsto secure voluntary compliance should be undertaken at the outset in everynoncompliance situation and should be pursued through each stage of enforcementaction. Similarly, where an applicant fails to file an adequate assurance orapparently breaches its terms, notice should be promptly given of the nature ofthe noncompliance problem and of the possible consequences thereof, and animmediate effort made to secure voluntary compliance.

The following procedures are designed to apply in cases of noncomplianceinvolving applications for one-time or noncontinuing assistance and initialapplications for new or existing programs of continuing assistance.

Where the assurance, statement of compliance or plan of desegregationrequired by agency regulations has not been filed or where, in the judgment ofthe head of the agency in question, the filed assurance fails on its face tosatisfy the regulations, the agency head should defer action on the applicationpending prompt initiation and completion of section 602 procedures. Theapplicant should be notified immediately and attempts made to secure voluntarycompliance. If such efforts fail, the applicant should promptly be offered ahearing for the purpose of determining whether an adequate assurance has in factbeen filed.

If it is found that an adequate assurance has not been filed, and ifadministrative alternatives are ineffective or inappropriate, and courtenforcement is not feasible, section 602 procedures may be completed andassistance finally refused.

Where an otherwise adequate assurance, statement of compliance, or plan hasbeen filed in connection with an application for assistance, but prior tocompletion of action on the application the head of the agency in question hasreasonable grounds, based on a substantiated complaint, the agency's owninvestigation, or otherwise, to believe that the representations as tocompliance are in some material respect untrue or are not being honored, theagency head may defer action on the application pending prompt initiation andcompletion of section 602 procedures. The applicant should be notifiedimmediately and attempts made to secure voluntary compliance. If such effortsfail and court enforcement is determined to be ineffective or inadequate, ahearing should be promptly initiated to determine whether, in fact, there isnoncompliance.

If noncompliance is found, and if administrative alternatives are ineffectiveor inappropriate and court enforcement is still not feasible, section 602procedures may be completed and assistance finally refused.

The above-described deferral and related compliance procedures would normallybe appropriate in cases of an application for noncontinuing assistance. In thecase of an initial application for a new or existing program of continuingassistance, deferral would often be less appropriate because of the opportunityto secure full compliance during the life of the assistance program. In thosecases in which the agency does not defer action on the application, theapplicant should be given prompt notice of the asserted noncompliance; fundsshould be paid out for short periods only, with no long-term commitment ofassistance given; and the applicant advised that acceptance of the funds carriesan enforceable obligation of nondiscrimination and the risk of invocation ofsevere sanctions, if noncompliance in fact is found.

The following procedures are designed to apply in cases of noncomplianceinvolving all submissions seeking continuation or renewal under programs ofcontinuing assistance.

In cases in which commitments for Federal financial assistance have been madeprior to the effective date of title VI regulations and funds have not beenfully disbursed, or in which there is provision for future periodic payments tocontinue the program or activity for which a present recipient has previouslyapplied and qualified, or in which assistance is given without formalapplication pursuant to statutory direction or authorization, the responsibleagency may nonetheless require an assurance, statement of compliance, or plan inconnection with disbursement or further funds. However, once a particularprogram grant or loan has been made or an application for a certain type ofassistance for a specific or indefinite period has been approved, no funds dueand payable pursuant to that grant, loan, or application, may normally bedeferred or withheld without first completing the procedures prescribed insection 602.

Accordingly, where the assurance, statement of compliance, or plan requiredby agency regulations has not been filed or where, in the judgment of the headof the agency in question, the filed assurance fails on its face to satisfy theregulations, or there is reasonable cause to believe it untrue or not beinghonored, the agency head should, if efforts to secure voluntary compliance areunsuccessful, promptly institute a hearing to determine whether an adequateassurance has in fact been filed, or whether, in fact, there is noncompliance,as the case may be. There should ordinarily be no deferral of action on thesubmission or withholding of funds in this class of cases, although thelimitation of the payout of funds to short periods may appropriately be ordered.If noncompliance is found, and if administrative alternatives are ineffective orinappropriate and court enforcement is not feasible, section 602 procedures maybe completed and assistance terminated.

Special procedures may sometimes be required where there is noncompliancewith title VI regulations in connection with a program of such short totalduration that all assistance funds will have to be paid out before the agency'susual administrative procedures can be completed and where deferral inaccordance with these guidelines would be tantamount to a final refusal to grantassistance.

In such a case, the agency head may, although otherwise following theseguidelines, suspend normal agency procedures and institute expeditedadministrative proceedings to determine whether the regulations have beenviolated. He should simultaneously refer the matter to the Department of Justicefor consideration of possible court enforcement, including interim injunctiverelief. Deferral of action on an application is appropriate, in accordance withthese guidelines, for a reasonable period of time, provided such action isconsistent with achievement of the objectives of the statute authorizing thefinancial assistance in connection with the action taken. As in other cases,where noncompliance is found in the hearing proceeding, and if administrativealternatives are ineffective or inappropriate and court enforcement is notfeasible, section 602 procedures may be completed and assistance finallyrefused.

In situations in which applications for Federal assistance are approved bysome agency other than the Federal granting agency, the same rules andprocedures would apply. Thus, the Federal Agency should instruct the approvingagency—typically a State agency—to defer approval or refuse to grantfunds, in individual cases in which such action would be taken by the originalgranting agency itself under the above procedures. Provision should be made forappropriate notice of such action to the Federal agency which retainsresponsibility for compliance with section 602 procedures.

The Attorney General should be consulted in individual cases in which thehead of an agency believes that the objectives of title VI will be best achievedby proceeding other than as provided in these guidelines.

While primary responsibility for enforcement of title VI rests directly withthe head of each agency, in order to assure coordination of title VI enforcementand consistency among agencies, the Department of Justice should be notified inadvance of applications on which action is to be deferred, hearings to bescheduled, and refusals and terminations of assistance or other enforcementactions or procedures to be undertaken. The Department also should be keptadvised of the progress and results of hearings and other enforcementactions.

1. A request for a business review letter must be submitted inwriting to the Assistant Attorney General, Antitrust Division, Department ofJustice, Washington, DC 20530.

2. The Division will consider only requests with respect to proposed businessconduct, which may involve either domestic or foreign commerce.

3. The Division may, in its discretion, refuse to consider a request.

4. A business review letter shall have no application to any party which doesnot join in the request therefor.

5. The requesting parties are under an affirmative obligation to make fulland true disclosure with respect to the business conduct for which review isrequested. Each request must be accompanied by all relevant data includingbackground information, complete copies of all operative documents and detailedstatements of all collateral oral understandings, if any. All parties requestingthe review letter must provide the Division with whatever additional informationor documents the Division may thereafter request in order to review the matter.Such additional information, if furnished orally, shall be promptly confirmed inwriting. In connection with any request for review the Division will alsoconduct whatever independent investigation it believes is appropriate.

6. No oral clearance, release or other statement purporting to bind theenforcement discretion of the Division may be given. The requesting party mayrely upon only a written business review letter signed by the Assistant AttorneyGeneral in charge of the Antitrust Division or his delegate.

7. (a) If the business conduct for which review is requested is subject toapproval by a regulatory agency, a review request may be considered beforeagency approval has been obtained only where it appears that exceptional andunnecessary burdens might otherwise be imposed on the party or partiesrequesting review, or where the agency specifically requests that a party orparties request review. However, any business review letter issued in these asin any other circumstances will state only the Department's present enforcementintentions under the antitrust laws. It shall in no way be taken to indicate theDepartment's views on the legal or factual issues that may be raised before theregulatory agency, or in an appeal from the regulatory agency's decision. Inparticular, the issuance of such a letter is not to be represented to mean thatthe Division believes that there are no anticompetitive consequences warrantingagency consideration.

(b) The submission of a request for a business review, or its pendency, shallin no way alter any responsibility of any party to comply with the PremergerNotification provisions of the Antitrust Improvements Act of 1976, 15 U.S.C.18A, and the regulations promulgated thereunder, 16 CFR, part 801.

8. After review of a request submitted hereunder the Division may: state itspresent enforcement intention with respect to the proposed business conduct;decline to pass on the request; or take such other position or action as itconsiders appropriate.

9. A business review letter states only the enforcement intention of theDivision as of the date of the letter, and the Division remains completely freeto bring whatever action or proceeding it subsequently comes to believe isrequired by the public interest. As to a stated present intention not to bringan action, however, the Division has never exercised its right to bring acriminal action where there has been full and true disclosure at the time ofpresenting the request.

10. (a) Simultaneously upon notifying the requesting party of and Divisionaction described in paragraph 8, the business review request, and the Division'sletter in response shall be indexed and placed in a file available to the publicupon request.

(b) On that date or within thirty days after the date upon which the Divisiontakes any action as described in paragraph 8, the information supplied tosupport the business review request and any other information supplied by therequesting party in connection with the transaction that is the subject of thebusiness review request, shall be indexed and placed in a file with the requestand the Division's letter, available to the public upon request. This file shallremain open for one year, after which time it shall be closed and the documentseither returned to the requesting party or otherwise disposed of, at thediscretion of the Antitrust Division.

(c) Prior to the time the information described in subparagraphs (a) and (b)is indexed and made publicly available in accordance with the terms of thatsubparagraph, the requesting party may ask the Division to delay making publicsome or all of such information. However the requesting party must: (1) Specifyprecisely the documents or parts thereof that he asks not be made public; (2)state the minimum period of time during which nondisclosure is considerednecessary; and (3) justify the request for non-disclosure, both as to contentand time, by showing good cause therefor, including a showing that disclosurewould have a detrimental effect upon the requesting party's operations orrelationships with actual or potential customers, employees, suppliers(including suppliers of credit), stockholders, or competitors. The Department ofJustice, in its discretion, shall make the final determination as to whethergood cause for non-disclosure has been shown.

(d) Nothing contained in subparagraphs (a), (b) and (c) shall limit theDivision's right, in its discretion, to issue a press release describinggenerally the identity of the requesting party or parties and the nature ofaction taken by the Division upon the request.

(e) This paragraph reflects a policy determination by the Justice Departmentand is subject to any limitations on public disclosure arising from statutoryrestrictions, Executive Order, or the national interest.

11. Any requesting party may withdraw a request for review at any time. TheDivision remains free, however, to submit such comments to such requesting partyas it deems appropriate. Failure to take action after receipt of documents orinformation whether submitted pursuant to this procedure or otherwise, does notin any way limit or stop the Division from taking such action at such timethereafter as it deems appropriate. The Division reserves the right to retaindocuments submitted to it under this procedure or otherwise and to use them forall governmental purposes.

Sec. 14. Technical standards for validitystudies. The following minimum standards, as applicable, should be met inconducting a validity study. Nothing in these guidelines is intended to precludethe development and use of other professionally acceptable techniques withrespect to validation of selection procedures. Where it is not technicallyfeasible for a user to conduct a validity study, the user has the obligationotherwise to comply with these guidelines. See sections 6 and 7 above.

A. Validity studies should be based on review of information aboutthe job. Any validity study should be based upon a review of informationabout the job for which the selection procedure is to be used. The review shouldinclude a job analysis except as provided in section 14B(3) below with respectto criterion-related validity. Any method of job analysis may be used if itprovides the information required for the specific validation strategy used.

B. Technical standards for criterion-related validitystudies—(1) Technical feasibility. Users choosing tovalidate a selection procedure by a criterion-related validity strategy shoulddetermine whether it is technically feasible (as defined in section 16) toconduct such a study in the particular employment context. The determination ofthe number of persons necessary to permit the conduct of a meaningful criterion-related study should be made by the user on the basis of all relevantinformation concerning the selection procedure, the potential sample and theemployment situation. Where appropriate, jobs with substantially the same majorwork behaviors may be grouped together for validity studies, in order to obtainan adequate sample. These guidelines do not require a user to hire or promotepersons for the purpose of making it possible to conduct a criterion-relatedstudy.

(2) Analysis of the job. There should be a review of jobinformation to determine measures of work behavior(s) or performance that arerelevant to the job or group of jobs in question. These measures or criteria arerelevant to the extent that they represent critical or important job duties,work behaviors or work outcomes as developed from the review of job information.The possibility of bias should be considered both in selection of the criterionmeasures and their application. In view of the possibility of bias in subjectiveevaluations, supervisory rating techniques and instructions to raters should becarefully developed. All criterion measures and the methods for gathering dataneed to be examined for freedom from factors which would unfairly alter scoresof members of any group. The relevance of criteria and their freedom from biasare of particular concern when there are significant differences in measures ofjob performance for different groups.

(3) Criterion measures. Proper safeguards should be taken toinsure that scores on selection procedures do not enter into any judgments ofemployee adequacy that are to be used as criterion measures. Whatever criteriaare used should represent important or critical work behavior(s) or workoutcomes. Certain criteria may be used without a full job analysis if the usercan show the importance of the criteria to the particular employment context.These criteria include but are not limited to production rate, error rate,tardiness, absenteeism, and length of service. A standardized rating of overallwork performance may be used where a study of the job shows that it is anappropriate criterion. Where performance in training is used as a criterion,success in training should be properly measured and the relevance of thetraining should be shown either through a comparison of the content of thetraining program with the critical or important work behavior(s) of the job(s),or through a demonstration of the relationship between measures of performancein training and measures of job performance. Measures of relative success intraining include but are not limited to instructor evaluations, performancesamples, or tests. Criterion measures consisting of paper and pencil tests willbe closely reviewed for job relevance.

(4) Representativeness of the sample. Whether the study ispredictive or concurrent, the sample subjects should insofar as feasible berepresentative of the candidates normally available in the relevant labor marketfor the job or group of jobs in question, and should insofar as feasible includethe races, sexes, and ethnic groups normally available in the relevant jobmarket. In determining the representativeness of the sample in a concurrentvalidity study, the user should take into account the extent to which thespecific knowledges or skills which are the primary focus of the test are thosewhich employees learn on the job.

Where samples are combined or compared, attention should be given to see thatsuch samples are comparable in terms of the actual job they perform, the lengthof time on the job where time on the job is likely to affect performance, andother relevant factors likely to affect validity differences; or that thesefactors are included in the design of the study and their effects identified.

(5) Statistical relationships. The degree of relationshipbetween selection procedure scores and criterion measures should be examined andcomputed, using professionally acceptable statistical procedures. Generally, aselection procedure is considered related to the criterion, for the purposes ofthese guidelines, when the relationship between performance on the procedure andperformance on the criterion measure is statistically significant at the 0.05level of significance, which means that it is sufficiently high as to have aprobability of no more than one (1) in twenty (20) to have occurred by chance.Absence of a statistically significant relationship between a selectionprocedure and job performance should not necessarily discourage otherinvestigations of the validity of that selection procedure.

(6) Operational use of selection procedures. Users shouldevaluate each selection procedure to assure that it is appropriate foroperational use, including establishment of cutoff scores or rank ordering.Generally, if other factors remain the same, the greater the magnitude of therelationship (e.g., correlation coefficient) between performance on a selectionprocedure and one or more criteria of performance on the job, and the greaterthe importance and number of aspects of job performance covered by the criteria,the more likely it is that the procedure will be appropriate for use. Relianceupon a selection procedure which is significantly related to a criterionmeasure, but which is based upon a study involving a large number of subjectsand has a low correlation coefficient will be subject to close review if it hasa large adverse impact. Sole reliance upon a single selection instrument whichis related to only one of many job duties or aspects of job performance willalso be subject to close review. The appropriateness of a selection procedure isbest evaluated in each particular situation and there are no minimum correlationcoefficients applicable to all employment situations. In determining whether aselection procedure is appropriate for operational use the followingconsiderations should also be taken into account: The degree of adverse impactof the procedure, the availability of other selection procedures of greater orsubstantially equal validity.

(7) Overstatement of validity findings. Users should avoidreliance upon techniques which tend to overestimate validity findings as aresult of capitalization on chance unless an appropriate safeguard is taken.Reliance upon a few selection procedures or criteria of successful jobperformance when many selection procedures or criteria of performance have beenstudied, or the use of optimal statistical weights for selection procedurescomputed in one sample, are techniques which tend to inflate validity estimatesas a result of chance. Use of a large sample is one safeguard: Cross-validationis another.

(8) Fairness. This section generally calls for studies ofunfairness where technically feasible. The concept of fairness or unfairness ofselection procedures is a developing concept. In addition, fairness studiesgenerally require substantial numbers of employees in the job or group of jobsbeing studied. For these reasons, the Federal enforcement agencies recognizethat the obligation to conduct studies of fairness imposed by the guidelinesgenerally will be upon users or groups of users with a large number of personsin a job class, or test developers; and that small users utilizing their ownselection procedures will generally not be obligated to conduct such studiesbecause it will be technically infeasible for them to do so.

(a) Unfairness defined. When members of one race, sex, orethnic group characteristically obtain lower scores on a selection procedurethan members of another group, and the differences in scores are not reflectedin differences in a measure of job performance, use of the selection proceduremay unfairly deny opportunities to members of the group that obtains the lowerscores.

(b) Investigation of fairness. Where a selection procedureresults in an adverse impact on a race, sex, or ethnic group identified inaccordance with the classifications set forth in section 4 above and that groupis a significant factor in the relevant labor market, the user generally shouldinvestigate the possible existence of unfairness for that group if it istechnically feasible to do so. The greater the severity of the adverse impact ona group, the greater the need to investigate the possible existence ofunfairness. Where the weight of evidence from other studies shows that theselection procedure predicts fairly for the group in question and for the sameor similar jobs, such evidence may be relied on in connection with the selectionprocedure at issue.

(c) General considerations in fairness investigations. Usersconducting a study of fairness should review the A.P.A. Standards regardinginvestigation of possible bias in testing. An investigation of fairness of aselection procedure depends on both evidence of validity and the manner in whichthe selection procedure is to be used in a particular employment context.Fairness of a selection procedure cannot necessarily be specified in advancewithout investigating these factors. Investigation of fairness of a selectionprocedure in samples where the range of scores on selection procedures orcriterion measures is severely restricted for any subgroup sample (as comparedto other subgroup samples) may produce misleading evidence of unfairness. Thatfactor should accordingly be taken into account in conducting such studies andbefore reliance is placed on the results.

(d) When unfairness is shown. If unfairness is demonstratedthrough a showing that members of a particular group perform better or poorer onthe job than their scores on the selection procedure would indicate throughcomparison with how members of other groups perform, the user may either reviseor replace the selection instrument in accordance with these guidelines, or maycontinue to use the selection instrument operationally with appropriaterevisions in its use to assure compatibility between the probability ofsuccessful job performance and the probability of being selected.

(e) Technical feasibility of fairness studies. In addition tothe general conditions needed for technical feasibility for the conduct of acriterion-related study (see section 16, below) an investigation of fairnessrequires the following:

(i) An adequate sample of persons in each group available for the study toachieve findings of statistical significance. Guidelines do not require a userto hire or promote persons on the basis of group classifications for the purposeof making it possible to conduct a study of fairness; but the user has theobligation otherwise to comply with these guidelines.

(ii) The samples for each group should be comparable in terms of the actualjob they perform, length of time on the job where time on the job is likely toaffect performance, and other relevant factors likely to affect validitydifferences; or such factors should be included in the design of the study andtheir effects identified.

(f) Continued use of selection procedures when fairness studies notfeasible. If a study of fairness should otherwise be performed, but is nottechnically feasible, a selection procedure may be used which has otherwise metthe validity standards of these guidelines, unless the technical infeasibilityresulted from discriminatory employment practices which are demonstrated byfacts other than past failure to conform with requirements for validation ofselection procedures. However, when it becomes technically feasible for the userto perform a study of fairness and such a study is otherwise called for, theuser should conduct the study of fairness.

C. Technical standards for content validity studies—(1)Appropriateness of content validity studies. Users choosing tovalidate a selection procedure by a content validity strategy should determinewhether it is appropriate to conduct such a study in the particular employmentcontext. A selection procedure can be supported by a content validity strategyto the extent that it is a representative sample of the content of the job.Selection procedures which purport to measure knowledges, skills, or abilitiesmay in certain circumstances be justified by content validity, although they maynot be representative samples, if the knowledge, skill, or ability measured bythe selection procedure can be operationally defined as provided in section14C(4) below, and if that knowledge, skill, or ability is a necessaryprerequisite to successful job performance.

A selection procedure based upon inferences about mental processes cannot besupported solely or primarily on the basis of content validity. Thus, a contentstrategy is not appropriate for demonstrating the validity of selectionprocedures which purport to measure traits or constructs, such as intelligence,aptitude, personality, commonsense, judgment, leadership, and spatial ability. Content validity is also not an appropriate strategy when the selectionprocedure involves knowledges, skills, or abilities which an employee will beexpected to learn on the job.

(2) Job analysis for content validity. There should be a jobanalysis which includes an analysis of the important work behavior(s) requiredfor successful performance and their relative importance and, if the behaviorresults in work product(s), an analysis of the work product(s). Any job analysisshould focus on the work behavior(s) and the tasks associated with them. If workbehavior(s) are not observable, the job analysis should identify and analyzethose aspects of the behavior(s) that can be observed and the observed workproducts. The work behavior(s) selected for measurement should be critical workbehavior(s) and/or important work behavior(s) constituting most of the job.

(3) Development of selection procedures. A selection proceduredesigned to measure the work behavior may be developed specifically from the joband job analysis in question, or may have been previously developed by the user,or by other users or by a test publisher.

(4) Standards for demonstrating content validity. Todemonstrate the content validity of a selection procedure, a user should showthat the behavior(s) demonstrated in the selection procedure are arepresentative sample of the behavior(s) of the job in question or that theselection procedure provides a representative sample of the work product of thejob. In the case of a selection procedure measuring a knowledge, skill, orability, the knowledge, skill, or ability being measured should be operationallydefined. In the case of a selection procedure measuring a knowledge, theknowledge being measured should be operationally defined as that body of learnedinformation which is used in and is a necessary prerequisite for observableaspects of work behavior of the job. In the case of skills or abilities, theskill or ability being measured should be operationally defined in terms ofobservable aspects of work behavior of the job. For any selection proceduremeasuring a knowledge, skill, or ability the user should show that (a) theselection procedure measures and is a representative sample of that knowledge,skill, or ability; and (b) that knowledge, skill, or ability is used in and is anecessary prerequisite to performance of critical or important work behavior(s).In addition, to be content valid, a selection procedure measuring a skill orability should either closely approximate an observable work behavior, or itsproduct should closely approximate an observable work product. If a testpurports to sample a work behavior or to provide a sample of a work product, themanner and setting of the selection procedure and its level and complexityshould closely approximate the work situation. The closer the content and thecontext of the selection procedure are to work samples or work behaviors, thestronger is the basis for showing content validity. As the content of theselection procedure less resembles a work behavior, or the setting and manner ofthe administration of the selection procedure less resemble the work situation,or the result less resembles a work product, the less likely the selectionprocedure is to be content valid, and the greater the need for other evidence ofvalidity.

(5) Reliability. The reliability of selection proceduresjustified on the basis of content validity should be a matter of concern to theuser. Whenever it is feasible, appropriate statistical estimates should be madeof the reliability of the selection procedure.

(6) Prior training or experience. A requirement for orevaluation of specific prior training or experience based on content validity,including a specification of level or amount of training or experience, shouldbe justified on the basis of the relationship between the content of thetraining or experience and the content of the job for which the training orexperience is to be required or evaluated. The critical consideration is theresemblance between the specific behaviors, products, knowledges, skills, orabilities in the experience or training and the specific behaviors, products,knowledges, skills, or abilities required on the job, whether or not there isclose resemblance between the experience or training as a whole and the job as awhole.

(7) Content validity of training success. Where a measure ofsuccess in a training program is used as a selection procedure and the contentof a training program is justified on the basis of content validity, the useshould be justified on the relationship between the content of the trainingprogram and the content of the job.

(8) Operational use. A selection procedure which is supportedon the basis of content validity may be used for a job if it represents acritical work behavior (i.e., a behavior which is necessary for performance ofthe job) or work behaviors which constitute most of the important parts of thejob.

(9) Ranking based on content validity studies. If a user canshow, by a job analysis or otherwise, that a higher score on a content validselection procedure is likely to result in better job performance, the resultsmay be used to rank persons who score above minimum levels. Where a selectionprocedure supported solely or primarily by content validity is used to rank jobcandidates, the selection procedure should measure those aspects of performancewhich differentiate among levels of job performance.

D. Technical standards for construct validity studies—(1)Appropriateness of construct validity studies. Construct validityis a more complex strategy than either criterion-related or content validity.Construct validation is a relatively new and developing procedure in theemployment field, and there is at present a lack of substantial literatureextending the concept to employment practices. The user should be aware that theeffort to obtain sufficient empirical support for construct validity is both anextensive and arduous effort involving a series of research studies, whichinclude criterion related validity studies and which may include contentvalidity studies. Users choosing to justify use of a selection procedure by thisstrategy should therefore take particular care to assure that the validity studymeets the standards set forth below.

(2) Job analysis for construct validity studies. There shouldbe a job analysis. This job analysis should show the work behavior(s) requiredfor successful performance of the job, or the groups of jobs being studied, thecritical or important work behavior(s) in the job or group of jobs beingstudied, and an identification of the construct(s) believed to underliesuccessful performance of these critical or important work behaviors in the jobor jobs in question. Each construct should be named and defined, so as todistinguish it from other constructs. If a group of jobs is being studied thejobs should have in common one or more critical or important work behaviors at acomparable level of complexity.

(3) Relationship to the job. A selection procedure should thenbe identified or developed which measures the construct identified in accordwith paragraph (2) above. The user should show by empirical evidence that theselection procedure is validly related to the construct and that the constructis validly related to the performance of critical or important work behavior(s).The relationship between the construct as measured by the selection procedureand the related work behavior(s) should be supported by empirical evidence fromone or more criterion-related studies involving the job or jobs in questionwhich satisfy the provisions of section 14B above.

(4) Use of construct validity study without new criterion-relatedevidence—(a) Standards for use. Until such time asprofessional literature provides more guidance on the use of construct validityin employment situations, the Federal agencies will accept a claim of constructvalidity without a criterion-related study which satisfies section 14B aboveonly when the selection procedure has been used elsewhere in a situation inwhich a criterion-related study has been conducted and the use of a criterion-related validity study in this context meets the standards for transportabilityof criterion-related validity studies as set forth above in section 7. However,if a study pertains to a number of jobs having common critical or important workbehaviors at a comparable level of complexity, and the evidence satisfiesparagraphs 14B (2) and (3) above for those jobs with criterion-related validityevidence for those jobs, the selection procedure may be used for all the jobs towhich the study pertains. If construct validity is to be generalized to otherjobs or groups of jobs not in the group studied, the Federal enforcementagencies will expect at a minimum additional empirical research evidence meetingthe standards of paragraphs section 14B (2) and (3) above for the additionaljobs or groups of jobs.

(b) Determination of common work behaviors. In determiningwhether two or more jobs have one or more work behavior(s) in common, the usershould compare the observed work behavior(s) in each of the jobs and shouldcompare the observed work product(s) in each of the jobs. If neither theobserved work behavior(s) in each of the jobs nor the observed work product(s)in each of the jobs are the same, the Federal enforcement agencies will presumethat the work behavior(s) in each job are different. If the work behaviors arenot observable, then evidence of similarity of work products and any otherrelevant research evidence will be considered in determining whether the workbehavior(s) in the two jobs are the same.

Sec. 15. Documentation of impact andvalidity evidence—A. Required information. Users ofselection procedures other than those users complying with section 15A(1) belowshould maintain and have available for each job information on adverse impact ofthe selection process for that job and, where it is determined a selectionprocess has an adverse impact, evidence of validity as set forth below.

(1) Simplified recordkeeping for users with less than 100employees. In order to minimize recordkeeping burdens on employers whoemploy one hundred (100) or fewer employees, and other users not required tofile EEO-1, et seq., reports, such users may satisfy the requirements ofthis section 15 if they maintain and have available records showing, for eachyear:

(a) The number of persons hired, promoted, and terminated for each job, bysex, and where appropriate by race and national origin;

(b) The number of applicants for hire and promotion by sex and whereappropriate by race and national origin; and

(c) The selection procedures utilized (either standardized or notstandardized).

These records should be maintained for each race or national origin group(see section 4 above) constituting more than two percent (2%) of the labor forcein the relevant labor area. However, it is not necessary to maintain records byrace and/or national origin (see section 4 above) if one race or national origingroup in the relevant labor area constitutes more than ninety-eight percent(98%) of the labor force in the area. If the user has reason to believe that aselection procedure has an adverse impact, the user should maintain anyavailable evidence of validity for that procedure (see sections 7A and 8).

(2) Information on impact—(a) Collection ofinformation on impact. Users of selection procedures other than thosecomplying with section 15A(1) above should maintain and have available for eachjob records or other information showing whether the total selection process forthat job has an adverse impact on any of the groups for which records are calledfor by sections 4B above. Adverse impact determinations should be made at leastannually for each such group which constitutes at least 2 percent of the laborforce in the relevant labor area or 2 percent of the applicable workforce. Wherea total selection process for a job has an adverse impact, the user shouldmaintain and have available records or other information showing whichcomponents have an adverse impact. Where the total selection process for a jobdoes not have an adverse impact, information need not be maintained forindividual components except in circumstances set forth in subsection 15A(2)(b)below. If the determination of adverse impact is made using a procedure otherthan the “four-fifths rule,” as defined in the first sentence ofsection 4D above, a justification, consistent with section 4D above, for theprocedure used to determine adverse impact should be available.

(b) When adverse impact has been eliminated in the total selectionprocess. Whenever the total selection process for a particular job has hadan adverse impact, as defined in section 4 above, in any year, but no longer hasan adverse impact, the user should maintain and have available the informationon individual components of the selection process required in the precedingparagraph for the period in which there was adverse impact. In addition, theuser should continue to collect such information for at least two (2) yearsafter the adverse impact has been eliminated.

(c) When data insufficient to determine impact. Where there hasbeen an insufficient number of selections to determine whether there is anadverse impact of the total selection process for a particular job, the usershould continue to collect, maintain and have available the information onindividual components of the selection process required in section 15(A)(2)(a)above until the information is sufficient to determine that the overallselection process does not have an adverse impact as defined in section 4 above,or until the job has changed substantially.

(3) Documentation of validity evidence—(a) Types of evidence. Where a total selection process has an adverseimpact (see section 4 above) the user should maintain and have available foreach component of that process which has an adverse impact, one or more of thefollowing types of documentation evidence:

(i) Documentation evidence showing criterion-related validity of theselection procedure (see section 15B, below).

(ii) Documentation evidence showing content validity of the selectionprocedure (see section 15C, below).

(iii) Documentation evidence showing construct validity of the selectionprocedure (see section 15D, below).

(iv) Documentation evidence from other studies showing validity of theselection procedure in the user's facility (see section 15E, below).

(v) Documentation evidence showing why a validity study cannot or need not beperformed and why continued use of the procedure is consistent with Federal law.

(b) Form of report. This evidence should be compiled in areasonably complete and organized manner to permit direct evaluation of thevalidity of the selection procedure. Previously written employer or consultantreports of validity, or reports describing validity studies completed before theissuance of these guidelines are acceptable if they are complete in regard tothe documentation requirements contained in this section, or if they satisfiedrequirements of guidelines which were in effect when the validity study wascompleted. If they are not complete, the required additional documentationshould be appended. If necessary information is not available the report of thevalidity study may still be used as documentation, but its adequacy will beevaluated in terms of compliance with the requirements of these guidelines.

(c) Completeness. In the event that evidence of validity isreviewed by an enforcement agency, the validation reports completed after theeffective date of these guidelines are expected to contain the information setforth below. Evidence denoted by use of the word “(Essential)” isconsidered critical. If information denoted essential is not included, thereport will be considered incomplete unless the user affirmatively demonstrateseither its unavailability due to circumstances beyond the user's control orspecial circumstances of the user's study which make the information irrelevant.Evidence not so denoted is desirable but its absence will not be a basis forconsidering a report incomplete. The user should maintain and have available theinformation called for under the heading “Source Data” in sections15B(11) and 15D(11). While it is a necessary part of the study, it need not besubmitted with the report. All statistical results should be organized andpresented in tabular or graphic form to the extent feasible.

B. Criterion-related validity studies. Reports of criterion-related validity for a selection procedure should include the followinginformation:

(1) User(s), location(s), and date(s) of study. Dates andlocation(s) of the job analysis or review of job information, the date(s) andlocation(s) of the administration of the selection procedures and collection ofcriterion data, and the time between collection of data on selection proceduresand criterion measures should be provided (Essential). If the study wasconducted at several locations, the address of each location, including city andState, should be shown.

(2) Problem and setting. An explicit definition of thepurpose(s) of the study and the circumstances in which the study was conductedshould be provided. A description of existing selection procedures and cutoffscores, if any, should be provided.

(3) Job analysis or review of job information. A description ofthe procedure used to analyze the job or group of jobs, or to review the jobinformation should be provided (Essential). Where a review of job informationresults in criteria which may be used without a full job analysis (see section14B(3)), the basis for the selection of these criteria should be reported(Essential). Where a job analysis is required a complete description of the workbehavior(s) or work outcome(s), and measures of their criticality or importanceshould be provided (Essential). The report should describe the basis on whichthe behavior(s) or outcome(s) were determined to be critical or important, suchas the proportion of time spent on the respective behaviors, their level ofdifficulty, their frequency of performance, the consequences of error, or otherappropriate factors (Essential). Where two or more jobs are grouped for avalidity study, the information called for in this subsection should be providedfor each of the jobs, and the justification for the grouping (see section14B(1)) should be provided (Essential).

(4) Job titles and codes. It is desirable to provide the user'sjob title(s) for the job(s) in question and the corresponding job title(s) andcode(s) from U.S. Employment Service's Dictionary of Occupational Titles.

(5) Criterion measures. The bases for the selection of thecriterion measures should be provided, together with references to the evidenceconsidered in making the selection of criterion measures (essential). A fulldescription of all criteria on which data were collected and means by which theywere observed, recorded, evaluated, and quantified, should be provided(essential). If rating techniques are used as criterion measures, the appraisalform(s) and instructions to the rater(s) should be included as part of thevalidation evidence, or should be explicitly described and available(essential). All steps taken to insure that criterion measures are free fromfactors which would unfairly alter the scores of members of any group should bedescribed (essential).

(6) Sample description. A description of how the researchsample was identified and selected should be included (essential). The race,sex, and ethnic composition of the sample, including those groups set forth insection 4A above, should be described (essential). This description shouldinclude the size of each subgroup (essential). A description of how the researchsample compares with the relevant labor market or work force, the method bywhich the relevant labor market or work force was defined, and a discussion ofthe likely effects on validity of differences between the sample and therelevant labor market or work force, are also desirable. Descriptions ofeducational levels, length of service, and age are also desirable.

(7) Description of selection procedures. Any measure,combination of measures, or procedure studied should be completely andexplicitly described or attached (essential). If commercially availableselection procedures are studied, they should be described by title, form, andpublisher (essential). Reports of reliability estimates and how they wereestablished are desirable.

(8) Techniques and results. Methods used in analyzing datashould be described (essential). Measures of central tendency (e.g., means) andmeasures of dispersion (e.g., standard deviations and ranges) for all selectionprocedures and all criteria should be reported for each race, sex, and ethnicgroup which constitutes a significant factor in the relevant labor market(essential). The magnitude and direction of all relationships between selectionprocedures and criterion measures investigated should be reported for eachrelevant race, sex, and ethnic group and for the total group (essential). Wheregroups are too small to obtain reliable evidence of the magnitude of therelationship, need not be reported separately. Statements regarding thestatistical significance of results should be made (essential). Any statisticaladjustments, such as for less then perfect reliability or for restriction ofscore range in the selection procedure or criterion should be described andexplained; and uncorrected correlation coefficients should also be shown(essential). Where the statistical technique categorizes continuous data, suchas biserial correlation and the phi coefficient, the categories and the bases onwhich they were determined should be described and explained (essential).Studies of test fairness should be included where called for by the requirementsof section 14B(8) (essential). These studies should include the rationale bywhich a selection procedure was determined to be fair to the group(s) inquestion. Where test fairness or unfairness has been demonstrated on the basisof other studies, a bibliography of the relevant studies should be included(essential). If the bibliography includes unpublished studies, copies of thesestudies, or adequate abstracts or summaries, should be attached (essential).Where revisions have been made in a selection procedure to assure compatabilitybetween successful job performance and the probability of being selected, thestudies underlying such revisions should be included (essential). Allstatistical results should be organized and presented by relevant race, sex, andethnic group (essential).

(9) Alternative procedures investigated. The selectionprocedures investigated and available evidence of their impact should beidentified (essential). The scope, method, and findings of the investigation,and the conclusions reached in light of the findings, should be fully described(essential).

(10) Uses and applications. The methods considered for use ofthe selection procedure (e.g., as a screening device with a cutoff score, forgrouping or ranking, or combined with other procedures in a battery) andavailable evidence of their impact should be described (essential). Thisdescription should include the rationale for choosing the method for operationaluse, and the evidence of the validity and utility of the procedure as it is tobe used (essential). The purpose for which the procedure is to be used (e.g.,hiring, transfer, promotion) should be described (essential). If weights areassigned to different parts of the selection procedure, these weights and thevalidity of the weighted composite should be reported (essential). If theselection procedure is used with a cutoff score, the user should describe theway in which normal expectations of proficiency within the work force weredetermined and the way in which the cutoff score was determined (essential).

(11) Source data. Each user should maintain records showing allpertinent information about individual sample members and raters where they areused, in studies involving the validation of selection procedures. These recordsshould be made available upon request of a compliance agency. In the case ofindividual sample members these data should include scores on the selectionprocedure(s), scores on criterion measures, age, sex, race, or ethnic groupstatus, and experience on the specific job on which the validation study wasconducted, and may also include such things as education, training, and priorjob experience, but should not include names and social security numbers.Records should be maintained which show the ratings given to each sample memberby each rater.

(12) Contact person. The name, mailing address, and telephonenumber of the person who may be contacted for further information about thevalidity study should be provided (essential).

(13) Accuracy and completeness. The report should describe thesteps taken to assure the accuracy and completeness of the collection, analysis,and report of data and results.

C. Content validity studies. Reports of content validity for aselection procedure should include the following information:

(1) User(s), location(s) and date(s) of study. Dates andlocation(s) of the job analysis should be shown (essential).

(2) Problem and setting. An explicit definition of thepurpose(s) of the study and the circumstances in which the study was conductedshould be provided. A description of existing selection procedures and cutoffscores, if any, should be provided.

(3) Job analysis—Content of the job. A description of themethod used to analyze the job should be provided (essential). The workbehavior(s), the associated tasks, and, if the behavior results in a workproduct, the work products should be completely described (essential). Measuresof criticality and/or importance of the work behavior(s) and the method ofdetermining these measures should be provided (essential). Where the jobanalysis also identified the knowledges, skills, and abilities used in workbehavior(s), an operational definition for each knowledge in terms of a body oflearned information and for each skill and ability in terms of observablebehaviors and outcomes, and the relationship between each knowledge, skill, orability and each work behavior, as well as the method used to determine thisrelationship, should be provided (essential). The work situation should bedescribed, including the setting in which work behavior(s) are performed, andwhere appropriate, the manner in which knowledges, skills, or abilities areused, and the complexity and difficulty of the knowledge, skill, or ability asused in the work behavior(s).

(4) Selection procedure and its content. Selection procedures,including those constructed by or for the user, specific training requirements,composites of selection procedures, and any other procedure supported by contentvalidity, should be completely and explicitly described or attached (essential).If commercially available selection procedures are used, they should bedescribed by title, form, and publisher (essential). The behaviors measured orsampled by the selection procedure should be explicitly described (essential).Where the selection procedure purports to measure a knowledge, skill, orability, evidence that the selection procedure measures and is a representativesample of the knowledge, skill, or ability should be provided (essential).

(5) Relationship between the selection procedure and the job.The evidence demonstrating that the selection procedure is a representative worksample, a representative sample of the work behavior(s), or a representativesample of a knowledge, skill, or ability as used as a part of a work behaviorand necessary for that behavior should be provided (essential). The user shouldidentify the work behavior(s) which each item or part of the selection procedureis intended to sample or measure (essential). Where the selection procedurepurports to sample a work behavior or to provide a sample of a work product, acomparison should be provided of the manner, setting, and the level ofcomplexity of the selection procedure with those of the work situation(essential). If any steps were taken to reduce adverse impact on a race, sex, orethnic group in the content of the procedure or in its administration, thesesteps should be described. Establishment of time limits, if any, and how theselimits are related to the speed with which duties must be performed on the job,should be explained. Measures of central tend- ency (e.g., means) and measuresof dispersion (e.g., standard deviations) and estimates of reliability should bereported for all selection procedures if available. Such reports should be madefor relevant race, sex, and ethnic subgroups, at least on a statisticallyreliable sample basis.

(6) Alternative procedures investigated. The alternativeselection procedures investigated and available evidence of their impact shouldbe identified (essential). The scope, method, and findings of the investigation,and the conclusions reached in light of the findings, should be fully described(essential).

(7) Uses and applications. The methods considered for use ofthe selection procedure (e.g., as a screening device with a cutoff score, forgrouping or ranking, or combined with other procedures in a battery) andavailable evidence of their impact should be described (essential). Thisdescription should include the rationale for choosing the method for operationaluse, and the evidence of the validity and utility of the procedure as it is tobe used (essential). The purpose for which the procedure is to be used (e.g.,hiring, transfer, promotion) should be described (essential). If the selectionprocedure is used with a cutoff score, the user should describe the way in whichnormal expectations of proficiency within the work force were determined and theway in which the cutoff score was determined (essential). In addition, if theselection procedure is to be used for ranking, the user should specify theevidence showing that a higher score on the selection procedure is likely toresult in better job performance.

(8) Contact person. The name, mailing address, and telephonenumber of the person who may be contacted for further information about thevalidity study should be provided (essential).

(9) Accuracy and completeness. The report should describe thesteps taken to assure the accuracy and completeness of the collection, analysis,and report of data and results.

D. Construct validity studies. Reports of construct validityfor a selection procedure should include the following information:

(1) User(s), location(s), and date(s) of study. Date(s) andlocation(s) of the job analysis and the gathering of other evidence called forby these guidelines should be provided (essential).

(2) Problem and setting. An explicit definition of thepurpose(s) of the study and the circumstances in which the study was conductedshould be provided. A description of existing selection procedures and cutoffscores, if any, should be provided.

(3) Construct definition. A clear definition of theconstruct(s) which are believed to underlie successful performance of thecritical or important work behavior(s) should be provided (essential). Thisdefinition should include the levels of construct performance relevant to thejob(s) for which the selection procedure is to be used (essential). There shouldbe a summary of the position of the construct in the psychological literature,or in the absence of such a position, a description of the way in which thedefinition and measurement of the construct was developed and the psychologicaltheory underlying it (essential). Any quantitative data which identify or definethe job constructs, such as factor analyses, should be provided (essential).

(4) Job analysis. A description of the method used to analyzethe job should be provided (essential). A complete description of the workbehavior(s) and, to the extent appropriate, work outcomes and measures of theircriticality and/or importance should be provided (essential). The report shouldalso describe the basis on which the behavior(s) or outcomes were determined tobe important, such as their level of difficulty, their frequency of performance,the consequences of error or other appropriate factors (essential). Where jobsare grouped or compared for the purposes of generalizing validity evidence, thework behavior(s) and work product(s) for each of the jobs should be described,and conclusions concerning the similarity of the jobs in terms of observablework behaviors or work products should be made (essential).

(5) Job titles and codes. It is desirable to provide theselection procedure user's job title(s) for the job(s) in question and thecorresponding job title(s) and code(s) from the United States EmploymentService's dictionary of occupational titles.

(6) Selection procedure. The selection procedure used as ameasure of the construct should be completely and explicitly described orattached (essential). If commercially available selection procedures are used,they should be identified by title, form and publisher (essential). The researchevidence of the relationship between the selection procedure and the construct,such as factor structure, should be included (essential). Measures of centraltendency, variability and reliability of the selection procedure should beprovided (essential). Whenever feasible, these measures should be providedseparately for each relevant race, sex and ethnic group.

(7) Relationship to job performance. The criterion-relatedstudy(ies) and other empirical evidence of the relationship between theconstruct measured by the selection procedure and the related work behavior(s)for the job or jobs in question should be provided (essential). Documentation ofthe criterion-related study(ies) should satisfy the provisions of section 15Babove or section 15E(1) below, except for studies conducted prior to theeffective date of these guidelines (essential). Where a study pertains to agroup of jobs, and, on the basis of the study, validity is asserted for a job inthe group, the observed work behaviors and the observed work products for eachof the jobs should be described (essential). Any other evidence used indetermining whether the work behavior(s) in each of the jobs is the same shouldbe fully described (essential).

(8) Alternative procedures investigated. The alternativeselection procedures investigated and available evidence of their impact shouldbe identified (essential). The scope, method, and findings of the investigation,and the conclusions reached in light of the findings should be fully described(essential).

(9) Uses and applications. The methods considered for use ofthe selection procedure (e.g., as a screening device with a cutoff score, forgrouping or ranking, or combined with other procedures in a battery) andavailable evidence of their impact should be described (essential). Thisdescription should include the rationale for choosing the method for operationaluse, and the evidence of the validity and utility of the procedure as it is tobe used (essential). The purpose for which the procedure is to be used (e.g.,hiring, transfer, promotion) should be described (essential). If weights areassigned to different parts of the selection procedure, these weights and thevalidity of the weighted composite should be reported (essential). If theselection procedure is used with a cutoff score, the user should describe theway in which normal expectations of proficiency within the work force weredetermined and the way in which the cutoff score was determined (essential).

(10) Accuracy and completeness. The report should describe thesteps taken to assure the accuracy and completeness of the collection, analysis,and report of data and results.

(11) Source data. Each user should maintain records showing allpertinent information relating to its study of construct validity.

(12) Contact person. The name, mailing address, and telephonenumber of the individual who may be contacted for further information about thevalidity study should be provided (essential).

E. Evidence of validity from other studies. When validity of aselection procedure is supported by studies not done by the user, the evidencefrom the original study or studies should be compiled in a manner similar tothat required in the appropriate section of this section 15 above. In addition,the following evidence should be supplied:

(1) Evidence from criterion-related validity studies—a.Job information. A description of the important job behavior(s) ofthe user's job and the basis on which the behaviors were determined to beimportant should be provided (essential). A full description of the basis fordetermining that these important work behaviors are the same as those of the jobin the original study (or studies) should be provided (essential).

b. Relevance of criteria. A full description of the basis onwhich the criteria used in the original studies are determined to be relevantfor the user should be provided (essential).

c. Other variables. The similarity of important applicant poolor sample characteristics reported in the original studies to those of the usershould be described (essential). A description of the comparison between therace, sex and ethnic composition of the user's relevant labor market and thesample in the original validity studies should be provided (essential).

d. Use of the selection procedure. A full description should beprovided showing that the use to be made of the selection procedure isconsistent with the findings of the original validity studies (essential).

e. Bibliography. A bibliography of reports of validity of theselection procedure for the job or jobs in question should be provided(essential). Where any of the studies included an investigation of testfairness, the results of this investigation should be provided (essential).Copies of reports published in journals that are not commonly available shouldbe described in detail or attached (essential). Where a user is relying uponunpublished studies, a reasonable effort should be made to obtain these studies.If these unpublished studies are the sole source of validity evidence theyshould be described in detail or attached (essential). If these studies are notavailable, the name and address of the source, an adequate abstract or summaryof the validity study and data, and a contact person in the source organizationshould be provided (essential).

(2) Evidence from content validity studies. See section 14C(3)and section 15C above.

(3) Evidence from construct validity studies. See sections14D(2) and 15D above.

F. Evidence of validity from cooperative studies. Where aselection procedure has been validated through a cooperative study, evidencethat the study satisfies the requirements of sections 7, 8 and 15E should beprovided (essential).

G. Selection for higher level job. If a selection procedure isused to evaluate candidates for jobs at a higher level than those for which theywill initially be employed, the validity evidence should satisfy thedocumentation provisions of this section 15 for the higher level job or jobs,and in addition, the user should provide: (1) A description of the jobprogression structure, formal or informal; (2) the data showing how manyemployees progress to the higher level job and the length of time needed to makethis progression; and (3) an identification of any anticipated changes in thehigher level job. In addition, if the test measures a knowledge, skill orability, the user should provide evidence that the knowledge, skill or abilityis required for the higher level job and the basis for the conclusion that theknowledge, skill or ability is not expected to develop from the training orexperience on the job.

H. Interim use of selection procedures. If a selectionprocedure is being used on an interim basis because the procedure is not fullysupported by the required evidence of validity, the user should maintain andhave available (1) substantial evidence of validity for the procedure, and (2) areport showing the date on which the study to gather the additional evidencecommenced, the estimated completion date of the study, and a description of thedata to be collected (essential).

Sec. 16. Definitions. The followingdefinitions shall apply throughout these guidelines:

A. Ability. A present competence to perform an observablebehavior or a behavior which results in an observable product.

B. Adverse impact. A substantially different rate of selectionin hiring, promotion, or other employment decision which works to thedisadvantage of members of a race, sex, or ethnic group. See section 4 of theseguidelines.

C. Compliance with these guidelines. Use of a selectionprocedure is in compliance with these guidelines if such use has been validatedin accord with these guidelines (as defined below), or if such use does notresult in adverse impact on any race, sex, or ethnic group (see section 4,above), or, in unusual circumstances, if use of the procedure is otherwisejustified in accord with Federal law. See section 6B, above.

D. Content validity. Demonstrated by data showing that thecontent of a selection procedure is representative of important aspects ofperformance on the job. See section 5B and section 14C.

E. Construct validity. Demonstrated by data showing that theselection procedure measures the degree to which candidates have identifiablecharacteristics which have been determined to be important for successful jobperformance. See section 5B and section 14D.

F. Criterion-related validity. Demonstrated by empirical datashowing that the selection procedure is predictive of or significantlycorrelated with important elements of work behavior. See sections 5B and 14B.

G. Employer. Any employer subject to the provisions of theCivil Rights Act of 1964, as amended, including State or local governments andany Federal agency subject to the provisions of section 717 of the Civil RightsAct of 1964, as amended, and any Federal contractor or subcontractor orfederally assisted construction contractor or subcontractor covered by ExecutiveOrder 11246, as amended.

H. Employment agency. Any employment agency subject to theprovisions of the Civil Rights Act of 1964, as amended.

I. Enforcement action. For the purposes of section 4 aproceeding by a Federal enforcement agency such as a lawsuit or anadministrative proceeding leading to debarment from or withholding, suspension,or termination of Federal Government contracts or the suspension or withholdingof Federal Government funds; but not a finding of reasonable cause or a concil-ation process or the issuance of right to sue letters under title VII or underExecutive Order 11246 where such finding, conciliation, or issuance of notice ofright to sue is based upon an individual complaint.

J. Enforcement agency. Any agency of the executive branch ofthe Federal Government which adopts these guidelines for purposes of theenforcement of the equal employment opportunity laws or which has responsibilityfor securing compliance with them.

K. Job analysis. A detailed statement of work behaviors andother information relevant to the job.

L. Job description. A general statement of job duties andresponsibilities.

M. Knowledge. A body of information applied directly to theperformance of a function.

N. Labor organization. Any labor organization subject to theprovisions of the Civil Rights Act of 1964, as amended, and any committeesubject thereto controlling apprenticeship or other training.

O. Observable. Able to be seen, heard, or otherwise perceivedby a person other than the person performing the action.

P. Race, sex, or ethnic group. Any group of personsidentifiable on the grounds of race, color, religion, sex, or national origin.

Q. Selection procedure. Any measure, combination of measures,or procedure used as a basis for any employment decision. Selection proceduresinclude the full range of assessment techniques from traditional paper andpencil tests, performance tests, training programs, or probationary periods andphysical, educational, and work experience requirements through informal orcasual interviews and unscored application forms.

R. Selection rate. The proportion of applicants or candidateswho are hired, promoted, or otherwise selected.

S. Should. The term “should” as used in theseguidelines is intended to connote action which is necessary to achievecompliance with the guidelines, while recognizing that there are circumstanceswhere alternative courses of action are open to users.

T. Skill. A present, observable competence to perform a learnedpsychomoter act.

U. Technical feasibility. The existence of conditionspermitting the conduct of meaningful criterion-related validity studies. Theseconditions include: (1) An adequate sample of persons available for the study toachieve findings of statistical significance; (2) having or being able to obtaina sufficient range of scores on the selection procedure and job performancemeasures to produce validity results which can be expected to be representativeof the results if the ranges normally expected were utilized; and (3) having orbeing able to devise unbiased, reliable and relevant measures of job performanceor other criteria of employee adequacy. See section 14B(2). With respect toinvestigation of possible unfairness, the same considerations are applicable toeach group for which the study is made. See section 14B(8).

V. Unfairness of selection procedure. A condition in whichmembers of one race, sex, or ethnic group characteristically obtain lower scoreson a selection procedure than members of another group, and the differences arenot reflected in differences in measures of job performance. See section 14B(7).

W. User. Any employer, labor organization, employment agency,or licensing or certification board, to the extent it may be covered by Federalequal employment opportunity law, which uses a selection procedure as a basisfor any employment decision. Whenever an employer, labor organization, oremployment agency is required by law to restrict recruitment for any occupationto those applicants who have met licensing or certification requirements, thelicensing or certifying authority to the extent it may be covered by Federalequal employment opportunity law will be considered the user with respect tothose licensing or certification requirements. Whenever a State employmentagency or service does no more than administer or monitor a procedure aspermitted by Department of Labor regulations, and does so without makingreferrals or taking any other action on the basis of the results, the Stateemployment agency will not be deemed to be a user.

X. Validated in accord with these guidelines or properlyvalidated. A demonstration that one or more validity study or studiesmeeting the standards of these guidelines has been conducted, includinginvestigation and, where appropriate, use of suitable alternative selectionprocedures as contemplated by section 3B, and has produced evidence of validitysufficient to warrant use of the procedure for the intended purpose under thestandards of these guidelines.

Y. Work behavior. An activity performed to achieve theobjectives of the job. Work behaviors involve observable (physical) componentsand unobservable (mental) components. A work behavior consists of theperformance of one or more tasks. Knowledges, skills, and abilities are notbehaviors, although they may be applied in work behaviors.

17. Policy statement on affirmative action (seesection 13B). The Equal Employment Opportunity Coordinating Council wasestablished by act of Congress in 1972, and charged with responsibility fordeveloping and implementing agreements and policies designed, among otherthings, to eliminate conflict and inconsistency among the agencies of theFederal Government responsible for administering Federal law prohibitingdiscrimination on grounds of race, color, sex, religion, and national origin.This statement is issued as an initial response to the requests of a number ofState and local officials for clarification of the Government's policiesconcerning the role of affirmative action in the overall equal employmentopportunity program. While the Coordinating Council's adoption of this statementexpresses only the views of the signatory agencies concerning this importantsubject, the principles set forth below should serve as policy guidance forother Federal agencies as well.

(1) Equal employment opportunity is the law of the land. In the public sectorof our society this means that all persons, regardless of race, color, religion,sex, or national origin shall have equal access to positions in the publicservice limited only by their ability to do the job. There is ample evidence inall sectors of our society that such equal access frequently has been denied tomembers of certain groups because of their sex, racial, or ethniccharacteristics. The remedy for such past and present discrimination is twofold.

On the one hand, vigorous enforcement of the laws against discrimination isessential. But equally, and perhaps even more important are affirmative,voluntary efforts on the part of public employers to assure that positions inthe public service are genuinely and equally accessible to qualified persons,without regard to their sex, racial, or ethnic characteristics. Without suchefforts equal employment opportunity is no more than a wish. The importance ofvoluntary affirmative action on the part of employers is underscored by titleVII of the Civil Rights Act of 1964, Executive Order 11246, and related laws andregulations—all of which emphasize voluntary action to achieve equalemployment opportunity.

As with most management objectives, a systematic plan based on soundorganizational analysis and problem identification is crucial to theaccomplishment of affirmative action objectives. For this reason, the Councilurges all State and local governments to develop and implement results orientedaffirmative action plans which deal with the problems so identified.

The following paragraphs are intended to assist State and local governmentsby illustrating the kinds of analyses and activities which may be appropriatefor a public employer's voluntary affirmative action plan. This statement doesnot address remedies imposed after a finding of unlawful discrimination.

(2) Voluntary affirmative action to assure equal employment opportunity isappropriate at any stage of the employment process. The first step in theconstruction of any affirmative action plan should be an analysis of theemployer's work force to determine whether percentages of sex, race, or ethnicgroups in individual job classifications are substantially similar to thepercentages of those groups available in the relevant job market who possess thebasic job-related qualifications.

When substantial disparities are found through such analyses, each element ofthe overall selection process should be examined to determine which elementsoperate to exclude persons on the basis of sex, race, or ethnic group. Suchelements include, but are not limited to, recruitment, testing, rankingcertification, interview, recommendations for selection, hiring, promotion, etc.The examination of each element of the selection process should at a minimuminclude a determination of its validity in predicting job performance.

(3) When an employer has reason to believe that its selection procedures havethe exclusionary effect described in paragraph 2 above, it should initiateaffirmative steps to remedy the situation. Such steps, which in design andexecution may be race, color, sex, or ethnic “conscious,” include,but are not limited to, the following:

(a) The establishment of a long-term goal, and short-range, interim goals andtimetables for the specific job classifications, all of which should take intoaccount the availability of basically qualified persons in the relevant jobmarket;

(b) A recruitment program designed to attract qualified members of the groupin question;

(c) A systematic effort to organize work and redesign jobs in ways thatprovide opportunities for persons lacking “journeyman” levelknowledge or skills to enter and, with appropriate training, to progress in acareer field;

(d) Revamping selection instruments or procedures which have not yet beenvalidated in order to reduce or eliminate exclusionary effects on particulargroups in particular job classifications;

(e) The initiation of measures designed to assure that members of theaffected group who are qualified to perform the job are included within the poolof persons from which the selecting official makes the selection;

(f) A systematic effort to provide career advancement training, bothclassroom and on-the-job, to employees locked into dead end jobs; and

(g) The establishment of a system for regularly monitoring the effectivenessof the particular affirmative action program, and procedures for making timelyadjustments in this program where effectiveness is not demonstrated.

(4) The goal of any affirmative action plan should be achievement of genuineequal employment opportunity for all qualified persons. Selection under suchplans should be based upon the ability of the applicant(s) to do the work. Suchplans should not require the selection of the unqualified, or the unneeded, norshould they require the selection of persons on the basis of race, color, sex,religion, or national origin. Moreover, while the Council believes that thisstatement should serve to assist State and local employers, as well as Federalagencies, it recognizes that affirmative action cannot be viewed as astandardized program which must be accomplished in the same way at all times inall places.

Accordingly, the Council has not attempted to set forth here either theminimum or maximum voluntary steps that employers may take to deal with theirrespective situations. Rather, the Council recognizes that under applicableauthorities, State and local employers have flexibility to formulate affirmativeaction plans that are best suited to their particular situations. In thismanner, the Council believes that affirmative action programs will best servethe goal of equal employment opportunity.

Respectfully submitted,

Harold R. Tyler, Jr.,

Deputy Attorney General and Chairman of the Equal EmploymentCoordinating Council.

Michael H. Moskow,

Under Secretary of Labor.

Ethel Bent Walsh,

Acting Chairman, Equal Employment Opportunity Commission.

Robert E. Hampton,

Chairman, Civil Service Commission.

Arthur E. Flemming,

Chairman, Commission on Civil Rights.

Because of its equal employment opportunity responsibilities under the Stateand Local Government Fiscal Assistance Act of 1972 (the revenue sharing act),the Department of Treasury was invited to participate in the formulation of thispolicy statement; and it concurs and joins in the adoption of this policystatement.

Done this 26th day of August 1976.

Richard Albrecht,

General Counsel, Department of the Treasury.

Section 18. Citations. The official title of these guidelinesis “Uniform Guidelines on Employee Selection Procedures (1978)”. TheUniform Guidelines on Employee Selection Procedures (1978) are intended toestablish a uniform Federal position in the area of prohibiting discriminationin employment practices on grounds of race, color, religion, sex, or nationalorigin. These guidelines have been adopted by the Equal Employment OpportunityCommission, the Department of Labor, the Department of Justice, and the CivilService Commission.

The official citation is:

“Section __, Uniform Guidelines on Employee Selection Procedure (1978);43 FR __ (August 25, 1978).”

The short form citation is:

“Section __, U.G.E.S.P. (1978); 43 FR __ (August 25, 1978).”

When the guidelines are cited in connection with the activities of one of theissuing agencies, a specific citation to the regulations of that agency can beadded at the end of the above citation. The specific additional citations are asfollows:

29 CFR Part 1607

41 CFR Part 60-3

28 CFR 50.14

5 CFR 300.103(c)

Normally when citing these guidelines, the section number immediatelypreceding the title of the guidelines will be from these guidelines series1-18. If a section number from the codification for an individual agencyis needed it can also be added at the end of the agency citation. For example,section 6A of these guidelines could be cited for EEOC as follows:“Section 6A, Uniform Guidelines on Employee Selection Procedures (1978);43 FR __, (August 25, 1978); 29 CFR part 1607, section 6A.”

Eleanor Holmes Norton,

Chair, Equal Employment Opportunity Commission.

Alan K. Campbell,

Chairman, Civil Service Commission.

Ray Marshall,

Secretary of Labor.

Griffin B. Bell,

Attorney General.