A. Procedure having adverse impact constitutes discrimination unless justified. The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines, or the provisions of section 6 below are satisfied.
B. Consideration of suitable alternative selection procedures. Where two or more selection procedures are available which serve the user's legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have the lesser adverse impact. Accordingly, whenever a validity study is called for by these guidelines, the user should include, as a part of the validity study, an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedure which have as little adverse impact as possible, to determine the appropriateness of using or validating them in accord with these guidelines. If a user has made a reasonable effort to become aware of such alternative procedures and validity has been demonstrated in accord with these guidelines, the use of the test or other selection procedure may continue until such time as it should reasonably be reviewed for currency. Whenever the user is shown an alternative selection procedure with evidence of less adverse impact and substantial evidence of validity for the same job in similar circumstances, the user should investigate it to determine the appropriateness of using or validating it in accord with these guidelines. This subsection is not intended to preclude the combination of procedures into a significantly more valid procedure, if the use of such a combination has been shown to be in compliance with the guidelines.
Notes of Decisions
Cited in
50
cases (
3 in the last 5 years), 1973–2026 · leading case:
Ricci v. DeStefano, 557 U.S. 557 (2009).
Ricci v. DeStefano, 557 U.S. 557 (2009).
· cites it 2× “” 29 CFR §1607.3 (B). See also Officers for Justice v.”
Percy Allen, Yvette Clinkscale, Paul Gergoire v. City of Chicago, 351 F.3d 306 (7th Cir. 2003).
· cites it 2× “§ 2000e-2(k)(l)(A); 29 C.F.R. § 1607.3 (B) (“Where two or more selection procedures are available which serve the user’s legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure…”
Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008).
· cites it 2× “" 29 C.F.R. § 1607.3 (A). The Guidelines further state: Where two or more selection procedures are available which serve the user's legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use…”
Brown v. City of Chicago, 8 F. Supp. 2d 1095 (N.D. Ill. 1998).
· cites it 4× “29 C.F.R. § 1607.3 (B). The City found one alternative, using merit promotions in conjunction with the examination to promote 13 sergeants (minorities and non-minorities) to the rank of lieutenant (in addition to the 54 promotions that had at that time been made based on the…”
Stewart v. Rubin, 948 F. Supp. 1077 (D.D.C. 1996).
· cites it 2× “, 29 C.F.R. § 1607.3 . 11 Accordingly, the systems to be *1098 developed will be fair to all Special Agents within ATF.”
Jorge Rojas v. Faa, 989 F.3d 666 (9th Cir. 2021).
“29 C.F.R. §§ 1607.3 (A), 1607.5. Most importantly for our purposes, the Uniform Guidelines require employers and agencies to maintain documentation of the validation studies and make the studies available for review.”
Detroit Police Officers Ass'n v. Young, 446 F. Supp. 979 (E.D. Mich. 1978).
· cites it 2× “” By the terms of the foregoing guideline the 1973 and 1974 written promotional examinations had an adverse impact upon blacks while the 1976 examination did not.”
Sims v. Montgomery Cnty. Comm'n, 890 F. Supp. 1520 (M.D. Ala. 1995).
· cites it 3× “29 C.F.R. § 1607.3 (B) provides, in part, that ‘Where two or more selection procedures are available which serve the user’s legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the…”
Jacquelyn HAWKINS, Appellee, v. ANHEUSER-BUSCH, INC., Appellant; Jacquelyn HAWKINS, Appellant, v. ANHEUSER-BUSCH, INC., Appellee, 697 F.2d 810 (8th Cir. 1983).
“We agree that such on-the-job experience with the company, if proven, would be a less-discriminatory alternative to the degree requirement, and that Anheuser-Busch would have had to recognize this selection method if it was available.”
— 29 C.F.R. § 1607.3(A) — 1 case
— 29 C.F.R. § 1607.3(b) — 1 case
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