The principles of disparate or unequal treatment must be distinguished from the concepts of validation. A selection procedure—even though validated against job performance in accordance with these guidelines—cannot be imposed upon members of a race, sex, or ethnic group where other employees, applicants, or members have not been subjected to that standard. Disparate treatment occurs where members of a race, sex, or ethnic group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants. Those employees or applicants who have been denied equal treatment, because of prior discriminatory practices or policies, must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination. Thus, the persons who were in the class of persons discriminated against during the period the user followed the discriminatory practices should be allowed the opportunity to qualify under less stringent selection procedures previously followed, unless the user demonstrates that the increased standards are required by business necessity. This section does not prohibit a user who has not previously followed merit standards from adopting merit standards which are in compliance with these guidelines; nor does it preclude a user who has previously used invalid or unvalidated selection procedures from developing and using procedures which are in accord with these guidelines.
Notes of Decisions
Cited in
13
cases (
4 in the last 5 years), 1973–2026 · leading case:
Hardy v. Stumpf, 576 P.2d 1342 (Cal. 1978).
Hardy v. Stumpf, 576 P.2d 1342 (Cal. 1978).
· cites it 6× “" ( 29 C.F.R. § 1607.11 .) As the court explained in United States v.”
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).
· cites it 2× “See 29 CFR § 1607.11 . *435 (4) Albemarle's validation study dealt only with job-experienced, white workers; but the tests themselves are given to new job applicants, who are younger, largely inexperienced, and in many instances nonwhite.”
Laffey v. Nw. Airlines, Inc., 567 F.2d 429 (D.C. Cir. 1976).
“Those employees or applicants who have been denied equal treatment, because of prior discriminatory practices or policies, must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination.”
Fanchon Blake v. City of Los Angeles, 595 F.2d 1367 (9th Cir. 1979).
“at 385 ; 29 C.F.R. § 1607.11 (“no new test or other employee selection standard can be imposed upon a class of individuals protected by Title VII who, but for prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards…”
Leisner v. New York Tel. Co., 358 F. Supp. 359 (S.D.N.Y. 1973).
“” 29 CFR § 1607.11 . Given the wide discretion that interviewers and supervisors have to measure the “total person” and to waive some criteria if other criteria are satisfied, it is possible that, at least in some cases, the criteria have been applied more stringently with…”
Officers for Just. v. Civil Serv. Com'n, San Fran., 395 F. Supp. 378 (N.D. Cal. 1975).
“Guidelines, Disparate treatment, 29 C.F.R. § 1607.11 reads: The principle of disparate or unequal treatment must be distinguished from the concepts of test validation.”
Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 1976).
“(emphasis added) This Guideline does not require that the affected class member show that he would have been able to qualify in the absence of discrimination; it requires only that he show that he lost the opportunity to qualify.”
Roman (D. Colo. 2026).
· cites it 3× “Because there is no section 1607 of Title 29 of the United States Code, the Court understands the fifth claim to allege a violation of 29 C.F.R. § 1607.11 , which deals with employee selection procedures.”
Linda Stump v. Dep't of Def. (MSPB 2024).
· cites it 2× “On petition for review, the appellant states merely, “29 CFR 1607.11 Disparate Treatment. The Appellant believes that she clearly demonstrated that the Agency discriminated on her.”
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