29 C.F.R. § 1607.2

Scope

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A. Application of guidelines. These guidelines will be applied by the Equal Employment Opportunity Commission in the enforcement of title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (hereinafter “title VII”); by the Department of Labor, and the contract compliance agencies until the transfer of authority contemplated by the President's Reorganization Plan No. 1 of 1978, in the administration and enforcement of Executive Order 11246, as amended by Executive Order 11375 (hereinafter “Executive Order 11246”); by the Civil Service Commission and other Federal agencies subject to section 717 of title VII; by the Civil Service Commission in exercising its responsibilities toward State and local governments under section 208(b)(1) of the Intergovernmental-Personnel Act; by the Department of Justice in exercising its responsibilities under Federal law; by the Office of Revenue Sharing of the Department of the Treasury under the State and Local Fiscal Assistance Act of 1972, as amended; and by any other Federal agency which adopts them.

B. Employment decisions. These guidelines apply to tests and other selection procedures which are used as a basis for any employment decision. Employment decisions include but are not limited to hiring, promotion, demotion, membership (for example, in a labor organization), referral, retention, and licensing and certification, to the extent that licensing and certification may be covered by Federal equal employment opportunity law. Other selection decisions, such as selection for training or transfer, may also be considered employment decisions if they lead to any of the decisions listed above.

C. Selection procedures. These guidelines apply only to selection procedures which are used as a basis for making employment decisions. For example, the use of recruiting procedures designed to attract members of a particular race, sex, or ethnic group, which were previously denied employment opportunities or which are currently underutilized, may be necessary to bring an employer into compliance with Federal law, and is frequently an essential element of any effective affirmative action program; but recruitment practices are not considered by these guidelines to be selection procedures. Similarly, these guidelines do not pertain to the question of the lawfulness of a seniority system within the meaning of section 703(h), Executive Order 11246 or other provisions of Federal law or regulation, except to the extent that such systems utilize selection procedures to determine qualifications or abilities to perform the job. Nothing in these guidelines is intended or should be interpreted as discouraging the use of a selection procedure for the purpose of determining qualifications or for the purpose of selection on the basis of relative qualifications, if the selection procedure had been validated in accord with these guidelines for each such purpose for which it is to be used.

D. Limitations. These guidelines apply only to persons subject to title VII, Executive Order 11246, or other equal employment opportunity requirements of Federal law. These guidelines do not apply to responsibilities under the Age Discrimination in Employment Act of 1967, as amended, not to discriminate on the basis of age, or under sections 501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate on the basis of disability.

E. Indian preference not affected. These guidelines do not restrict any obligation imposed or right granted by Federal law to users to extend a preference in employment to Indians living on or near an Indian reservation in connection with employment opportunities on or near an Indian reservation.

[43 FR 38295, 38312, Aug. 25, 1978, as amended at 74 FR 63983, Dec. 7, 2009]

Notes of Decisions

Cited in 11 cases (1 in the last 5 years), 1974–2024 · leading case: Rush Pettway, Etc. v. Am. Cast Iron Pipe Co., United States Equal Emp. Opportunity Comm'n, Intervenor, 494 F.2d 211 (5th Cir. 1974).

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Rush Pettway, Etc. v. Am. Cast Iron Pipe Co., United States Equal Emp. Opportunity Comm'n, Intervenor, 494 F.2d 211 (5th Cir. 1974). · cites it 6× “29 C.F.R. 1607.2 18 We discuss extensively the testimony and the statistics infra.”

Equal Emp. Opportunity Comm'n v. Kronos Inc., 694 F.3d 351 (3rd Cir. 2012). “See 29 C.F.R. § 1607.2 (D). For this reason, Kronos asserts, there is no requirement that a company administering an employment test conduct validation studies related to an adverse impact on disabled persons.”

League of United Latin Am. Citizens v. City of Santa Ana, 410 F. Supp. 873 (C.D. Cal. 1976). “[t]he term “test” includes all formal, scored, quantified *901 or standardized techniques of assessing job suitability including specific qualifying or disqualifying personal history or background requirements, specific educational or work history requirements .”

10 Fair empl.prac.cas. 1386, 10 Empl. Prac. Dec. P 10,320 Jessie Stevenson, Etc. v. Int'l Paper Co., Mobile, Alabama, 516 F.2d 103 (5th Cir. 1975). “Unlike the testing requirements, the age restriction, also neutral on its face, is attacked by plaintiffs only as it “loeksout” the victims of prior discrimination from the maintenance craft positions. In the court’s Pretrial Order of September 5, 1972, the parties stipulated…”

Brenda Davis v. City of Dallas, Cynthia Jayne Durbin v. City of Dallas, 777 F.2d 205 (5th Cir. 1985). “Nevertheless, several courts have suggested that a lesser quality of proof is sufficient to establish the job-relatedness of college degrees for managerial, professional, and other white-collar positions____ "One reason for this apparent willingness to relax stringent validation…”

Buck Green v. Missouri Pac. R.R. Co., a Corp., 523 F.2d 1290 (8th Cir. 1975). “The application of these guidelines to the use of conviction data in a less restrictive way is not now before us and, therefore, we need not resolve that question.”

William H. Hamer v. City of Atlanta, United States of Am. v. City of Atlanta, 872 F.2d 1521 (11th Cir. 1989). “29 C.F.R. § 1607.2 (C) states: Nothing in these guidelines is intended or should be interpreted as discouraging the use of a selection procedure for the purpose of determining qualifications or for the purpose of selection on the basis of relative qualifications, if the…”

Williams v. City & Cty. of San Francisco, 483 F. Supp. 335 (N.D. Cal. 1979). “This position is plainly unsupportable since the EEOC Guidelines specifically define “tests” to include scored interviews and interviewers’ rating scales, 29 C.F.R. § 1607.2 (1978), and further provide that “[t]he use *340 of any test which adversely affects hiring, promotion,…”

Equal Emp. Opportunity Comm'n v. Local 638, 401 F. Supp. 467 (S.D.N.Y. 1975). “According to the EEOC Guidelines, a specific educational requirement such as a high school diploma is a “test” which must be validated like any other if it adversely affects persons protected by Title VII of the 1964 Civil Rights Act.”

Rice v. City of St. Louis, 607 F.2d 791 (8th Cir. 1979). “When one thinks of a “test,” he ordinarily thinks of a series of questions, oral or written, propounded to and to be answered by the person being tested.”

Linda Stump v. Dep't of Def. (MSPB 2024). “See 29 C.F.R. § 1607.2 (A). The appellant also argues that the administrative judge should have allowed her to call the proposing official as a witness.”

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