29 C.F.R. § 1607.16

Definitions

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The following definitions shall apply throughout these guidelines:

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

B. Adverse impact. A substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group. See section 4 of these guidelines.

C. Compliance with these guidelines. Use of a selection procedure is in compliance with these guidelines if such use has been validated in accord with these guidelines (as defined below), or if such use does not result in adverse impact on any race, sex, or ethnic group (see section 4, above), or, in unusual circumstances, if use of the procedure is otherwise justified in accord with Federal law. See section 6B, above.

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

E. Construct validity. Demonstrated by data showing that the selection procedure measures the degree to which candidates have identifiable characteristics which have been determined to be important for successful job performance. See section 5B and section 14D.

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

G. Employer. Any employer subject to the provisions of the Civil Rights Act of 1964, as amended, including State or local governments and any Federal agency subject to the provisions of section 717 of the Civil Rights Act of 1964, as amended, and any Federal contractor or subcontractor or federally assisted construction contractor or subcontactor covered by Executive Order 11246, as amended.

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

I. Enforcement action. For the purposes of section 4 a proceeding by a Federal enforcement agency such as a lawsuit or an administrative proceeding leading to debarment from or withholding, suspension, or termination of Federal Government contracts or the suspension or withholding of 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 under Executive Order 11246 where such finding, conciliation, or issuance of notice of right to sue is based upon an individual complaint.

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

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

L. Job description. A general statement of job duties and responsibilities.

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

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

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

P. Race, sex, or ethnic group. Any group of persons identifiable 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 procedures include the full range of assessment techniques from traditional paper and pencil tests, performance tests, training programs, or probationary periods and physical, educational, and work experience requirements through informal or casual interviews and unscored application forms.

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

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

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

U. Technical feasibility. The exist- ence of conditions permitting the conduct of meaningful criterion-related validity studies. These conditions include: (1) An adequate sample of persons available for the study to achieve findings of statistical significance; (2) having or being able to obtain a sufficient range of scores on the selection procedure and job performance measures to produce validity results which can be expected to be representative of the results if the ranges normally expected were utilized; and (3) having or being able to devise unbiased, reliable and relevant measures of job performance or other criteria of employee adequacy. See section 14B(2). With respect to investigation of possible unfairness, the same considerations are applicable to each group for which the study is made. See section 14B(8).

V. Unfairness of selection procedure. A condition in which members of one race, sex, or ethnic group characteristically obtain lower scores on a selection procedure than members of another group, and the differences are not 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 Federal equal employment opportunity law, which uses a selection procedure as a basis for any employment decision. Whenever an employer, labor organization, or employment agency is required by law to restrict recruitment for any occupation to those applicants who have met licensing or certification requirements, the licensing or certifying authority to the extent it may be covered by Federal equal employment opportunity law will be considered the user with respect to those licensing or certification requirements. Whenever a State employment agency or service does no more than administer or monitor a procedure as permitted by Department of Labor regulations, and does so without making referrals or taking any other action on the basis of the results, the State employment agency will not be deemed to be a user.

X. Validated in accord with these guidelines or properly validated. A demonstration that one or more validity study or studies meeting the standards of these guidelines has been conducted, including investigation and, where appropriate, use of suitable alternative selection procedures as contemplated by section 3B, and has produced evidence of validity sufficient to warrant use of the procedure for the intended purpose under the standards of these guidelines.

Y. Work behavior. An activity performed to achieve the objectives of the job. Work behaviors involve observable (physical) components and unobservable (mental) components. A work behavior consists of the performance of one or more tasks. Knowledges, skills, and abilities are not behaviors, although they may be applied in work behaviors.

Notes of Decisions

Cited in 14 cases (2 in the last 5 years), 1985–2026 · leading case: Ernest L. Griffin, Cross-Appellees v. Carl Carlin, Postmaster Gen., Cross-Appellant, 755 F.2d 1516 (11th Cir. 1985).

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Ernest L. Griffin, Cross-Appellees v. Carl Carlin, Postmaster Gen., Cross-Appellant, 755 F.2d 1516 (11th Cir. 1985). “29 C.F.R. § 1607.16 (Q). We therefore reverse the order of the district court dismissing plaintiffs’ disparate impact claims and remand to that Court for consideration of the plaintiffs’ disparate impact challenges to the final result of the defendants’ overall promotion process…”

Marcus Aguilera v. Cook Cnty. Police & Corr. Merit Bd., 760 F.2d 844 (7th Cir. 1985). “Part 1607 for the current guidelines); the guidelines are applicable to educational requirements as well as to tests, see 29 C.F.R. § 1607.16 (Q); and such requirements have sometimes been rejected because they had not been validated in accordance with the guidelines, see, e.”

Lopez v. City of Lawrence, Massachusett, 823 F.3d 102 (1st Cir. 2016). · cites it 2× “See 29 C.F.R. § 1607.16 (D). The parties agree generally that establishing content validity in this context requires a "showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be…”

Burney v. Rheem Mfg. Co., 196 F.R.D. 659 (M.D. Ala. 2000). “See 29 C.F.R. § 1607.16 (R); § 1607.4(D). The court concludes that the defendant’s failure to validate its required qualifications for the position in accordance with the EEOC guidelines cited by Meehan does not constitute evidence that the defendant’s articulated reasons for…”

Brunet v. City of Columbus, 58 F.3d 251 (6th Cir. 1995). · cites it 2× “” 29 C.F.R. § 1607.16 D (emphasis added). The Uniform Guidelines provide that [ejvidence which may be sufficient to support the use of a selection procedure on a pass/fail .”

Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir. 1987). “29 C.F.R. § 1607.16 (Q) (1985). Because the statutory language and legislative history support the administrative interpretation, the guidelines are “entitled to great deference,” and can be treated as “expressing the will of Congress.”

Green v. USX Corp., 843 F.2d 1511 (3rd Cir. 1988). “Selection procedures include the full range of assessment techniques from traditional paper and pencil tests, performance tests, training programs, or probationary periods and physical, educational, and work experience requirements through informal or casual interviews and…”

Johnson v. City of Memphis, 355 F. Supp. 2d 911 (W.D. Tenn. 2005). “” 29 C.F.R. § 1607.16 (B). One way to measure adverse impact is the four-fifths rule, but it should be used only to the extent that it is “useful in the particular setting of the case under consideration for advancing the basic purposes of Title VII.”

Gonzales v. Galvin, 151 F.3d 526 (6th Cir. 1998). “29 C.F.R. § 1607.16 (D), (F); aw also §§ 1607.”

Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523 (10th Cir. 1995). “29 C.F.R. § 1607.16 .C. Employers need not adopt the guidelines per se so long as their employee selection procedures are nondiscriminatory.”

Reynolds v. Alabama Dep't of Transp., 295 F. Supp. 2d 1298 (M.D. Ala. 2003). “at 134; see also 29 C.F.R. § 1607.16 (definitions) ("Adverse impact.”

Shield Club v. City of Cleveland, 647 F. Supp. 274 (N.D. Ohio 1986). “if such use does not result in adverse impact on any race____” 29 C.F.R. § 1607.16 (C). Hence the court will examine the adverse impact contentions of the plaintiffs.”

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