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with the actions plans. We were not trying, in the second paragraph of our statement, Mr. Chairman, to give the totally of our responsibilities under the law, but it is over 1300 plans we review at the national and at the regional level. This is a big part of the job that we have to do in equal employment-we take it quite seriously. We reject plans, we require modifications, and we get them.
Mr. HAWKINS. Let's take the latest filing time. How many were approved and how many were rejected?
Mr. HAMPTON. Apparently, for 1970, the most recent submittals, we have required modifications in 39 percent of the cases. We required modifications of the plans that were submitted to us.
Mr. Hawkins. I assume all were approved and none rejected then? Mr. KATOR. Initial rejection.
Mr. HAMPTON. Resubmittal along the guidelines we gave them and then they are approved after they are modified. Agencies have to have an approved plan.
Mr. HAWKINS. Do the plans, as submitted, involve goals and timetables?
Mr. Kator. Yes. Most of the plans submitted by the Federal Agencies now include goals and timetables.
Mr. HAWKINS. And is the utilization analysis also included in the affirmative action plans being submitted ?
Mr. KATOR. It is a part of the modification process that we require. It may be submitted or it may not be submitted with the plan, but, Mr. Chairman, we have the utilization data in our statistics, and we are quite aware of what an agency's picture is like in terms of its employment of minorities and women and the grade levels.
Mr. HAWKINS. Don't you think it should be included in the plan, itself, rather than outside of the plan?
Mr. KATOR. I think you are absolutely right and this is one of the changes we have currently under process in connection with the changing of our plan review procedures to have the agencies give us a utilization analysis based on their own employment patterns.
Mr. HAWKINS. I certainly assume, if we are going to have the utilization analysis, then the goals and timetables would be meaningless without that. It would seem to me without that combination, the plan is deficient and certainly should not be approved.
Mr. HAMPTON. I would agree, if we did not otherwise have the data. I also agree it is better to have it in the plan so you can see both together from the same vantage point. This is the change Mr. Hudson is now making in his procedures.
Mr. HAWKINS. Let me ask you-either Mr. Hampton or Mr. Kator, whichever is best equipped to answer-within the operation of your agency, what position do you take on the Griggs v. Duke Power decision, because it would appear from what I read of your statement, that you have rejected this completely in your testing procedures and adopted one of your own? Is it true that you reject the decision of Griggs v. Duke Power with respect to your testing standards?
Mr. HAMPTOX. No, that is not true. We accept the law of the land as set down by the Supreme Court. Mr. Kator wants to elaborate on that. It has been the central part of revising our testing procedure.
Mr. HAWKINS. Has your testing procedure been validated in accordance with the Griggs decision?
Mr. HAMPTON. On job relatedness, yes, sir.
Mr. KATOR. We certainly categorically reject the notion we don't abide by the Griggs decision, because we do. We are validating our tests to assure they are job related. I would like to go one step beyond and indicate we are working very closely through the Coordinating Council to develop uniform guidelines on selection procedures and we are working with the Equal Employment Opportunity Commission, the Department of Justice and the Department of Labor, and any guidelines that are issued by the Coordinating Council, you can be sure that the Commission's examinations will be validated in accordance with those.
Mr. Hawkins. Mr. Kator, in other hearings of this committee, particularly with respect to hearings on Labor, with OFCC, it was my understanding that you were the one that held out in the Coordinating Council for the selection guidelines and we were told that that is the reason that uniformity in testing in the selection guidelines had not been accomplished. We were insisting on the coordination of these agencies so people would not be confused with differences of procedures among the EOOC, OFCC, or (ivil Service Commission. The public is greatly confused at times. Some people say they don't know what the law requires them to do. Is it true you, in this particular issue, held out in that coordinating council!
Mr. KATOR. No; that is not true. What is true is the fact that we urged the other agencies to make changes in the current 1970 E EOC selection guidelines which were adopted before State and local povernments and the Federal Government were included under title VII. As a matter of fact, this work has gone on a long period of time. Many changes have been made. We have been working about 212 years. Actually, as of right now, we have a document that has been put out by the staff of the Coordinating Council, that we, the Civil Service Commission, are willing to have published, at least, for public review. The Department of Justice is willing to have it reviewed, and the Department of Labor is willing to have it reviewed, and I am just not sure what the position of the EEOC is on this.
Mr. Hawkins. We get two different stories. EEOC points the finger at you, and now you are pointing the finger at them. Would you submit the document you refer to, if it is available, to the subcommittee for inclusion in the hearing records.
Mr. KATOR. I will be glad to do so. [Information referred to follows:]
UNIFORM GU'IDELINES ON EMPLOYEE SELECTION PROCEDURES
PART I-GENERAL PRINCIPLES
Statement of purpose a. These l'niform Guidelines on Employee Selection Procedures have heen developed under the auspices of the Equal Employment Opportunity Coordinating Council, established by Section 715 of Title VII of the Civil Rights Act of 1964, as amended.
b. These guidelines are intended to be a set of principles which will assist employers, labor organizations and employment agencies, licensing and certification boards and accrediting associations in complying witin equal employment opportunity requirements of Federal law with respect to race, color, religion, sex and national origin. They are designed to provide a framework of determining the proper use of tests and other selection procedures and to avoid discrminatory
selection practices. These guidelines do not call for a user to conduct validity studies of selection procedures, where no adverse impact results. However, all users are encouraged to use selection procedures which are valid, especially those operating under merit principles. Nothing in these guidelines is intended or should be interpreted as discouraging the use of procedures which have been properly validated in accordance with these guidelines for the purpose of determining qualifications or selecting on the basis of relative qualifications. Nothing in these guidelines is intended to apply to persons not subject to the requirements of Title VII, Executive Order 11246, or other equal employment opportunity requirements of Federal law. These guidelines are not intended to apply to any responsibilities an employer, employment agency or labor organization may have under the Age Discrimination in Employment Act of 1967 not to discriminate on the basis of age. $2 Scope
a. These guidelines apply to selection procedures used by private employers, state and local government employers, labor organizations and employment agencies, licensing and certification boards and professional associations subject to the requirements of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (hereinafter “the Civil Rights Act of 1961"); and of Executive Order 11246, as amended by Executive Order 11375 (hereinafter “Executive Order 11246"); and to the selection procedures used by agencies of the Federal government. They will be applied by the Equal Employment Opportunity Commission to private and state and local governinent employers, labor organizations and employment agencies as defined by Sec. 701 of the Civil Rights Act of 1964; by the Department of Labor to contractors and subcontractors subject to Executive Order 112-16; and by the Civil Service Commission to federal agencies subject to Sec. 717 of the Civil Rights Act of 1961, and to its responsibilities toward state and local governments under Section 208 (b) (1) of the Intergovernmental Personnel Act.
b. These guidelines apply to selection procedures which are used as a basis for any employment decision, Employment decisions include but are not limited to hire, transfer, promotion, demotion, job or work assignments, membership (for example in a labor organization), training, referral, retention, licensing and certification. $3 Relationship betueen Use of Tests and Discrimination
a. The use of any selection procedure which is a standardized, formal, scored or quantified measure or combination of measures and which has an adverse impact on the members of any racial, ethnic or sex group with respect to hiring, promotion, transfer or other employment or membership opportunities, will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure is both validated and shown to be practically useful in accordance with the principles contained in these guidelines.
b. If the user knows or should reasonably have known of alternate available procedures, which are both validated and shown to be practically useful in accordance with the principles contained in these guidelines 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. This subparagraph is not intended to preclude the combination of procedures into a significantly more valid procedure, if such combination has been properly validated.
c. Selection procedures which are not standardized, formal, scored or quantified may not lend themselves to validation in accordance with these guidelines. If such a procedure has an adverse impact, it may not be used consistent with these guidelines uniess the standard applied 1) is reasonably required for successful job performance, or 2) is necessary for the safety or efficiency of the user's business. 84 Information on Impact
a. Each user should have arailable for inspection records or other information which will disclose the impact which its procedures have upon employment opportunities of persons by identifiable racial, ethnic or sex groups in order to determine compliance with the provisions of $ 3 above. Where there are large numbers of applicants and procedures are administered frequently, such information may be retained on a sample basis, provided that the sample is appropriate in terms of the applicant population and adequate in size. The records called for by this section are to be maintained by sex, and by racial and ethnic groups as follows: blacks (Negroes), American Indians (including Alaskan Natives), Asians (including Pacific islanders), Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race) and totals. The classifications called for by this section are intended to be consistent with the Employer Information (EE0-1 et seq.) series of reprorts. Each user should adopt safeguards to insure that such records are not used as a basis for discrimination.
b. The information called for by this section should be examined for possible adverse impact. If the records called for by this section indicate that the total selection process for a job has no adverse impact, the individual components of the selection process need not be evaluated separately for adverse impact. If a total selection process does have adverse impact, the individual components of the selection process should be evaluated for adverse impact.
A selection rate for any racial, ethnic or sex group which is less than fourfifths (4/5) (or eighty percent) of the rate for the group with the highest selection rate will generally be regarded as evidence of significant adverse impact. while a greater than four-fifths rate will generally not be regarded as evidence of significant adverse impact. Smaller differences in selection rate may nevertheless be considered to constitute adverse impact, where they are significant in both statistical and practical terms. Greater differences in selection rate would not necessarily be regarded as constituting adverse impact where the differences are based on small numbers and are not statistically significant. In determining adverse impact the enforcement agencies will take into account the results of any special program which causes the pool of minority or female candidates to be typical of the normal pool of applicants from that group.
c. Federal agencies responsible for the enforcement of the equal employment opportunity laws will consider in carrying out their obligations the general poss ture of the user with respect to equal employment opportunity for the job classification or group of classifications in question. Where a user has adopted an affirmative action program, the Federal agencies will consider the provisions of that program, including the goals and timetables which the employer has adopted and the progress which the employer has made in carrying out that program and in meeting the goals and timetables. Federal equal employment law prohibits the making of employment decisions on the basis of race and color and (except for bona fide occupational qualifications) on the basis of sex, religion and national origin; and nothing in this subsection or in those guidelines is intended to encourage or permit such employment decisions. 8 5 General Standards for ralidity Studies
a. Evidence in support of the validity of a selection procedure should be based on studies meeting generally accepted standards for determining validity. such as those described in the standards for Educational and Psychological Tests prepared by a joint committee of the American Psychological Association, the American Educational Research Association, and the National Council on Measurement in Education (Washington, D.C., 1971) (hereinafter “APA Standards"). For the purposes of satisfying these guidelines users may rely upon criterion related validity studies, content validity studies or construct validity studies, in accordance with the standards set forth in Part II of these guidelines, $ 12 infra. Technical matters not specifically covered in these guidelines are subject only to generally accepted professional standards, such as those contained in the standard text books and journals in the field of personnel selection.
b. Selection procedures subject to validity studies under $ 3a above should be administered and scored under standardized conitions.
c. Each user should maintain and have available documentation of validity evience for any standardized, formal, scored or qualifier selection procedure which has an adrerse impact, as set forth in $ 4 ahore. Where a user is relying upon validity evidence from studies conducted by others, the user should maintain and have available sufficient documentation to show that the standards of $ 6 below have been satisfied. [The Equal Employment Opportunity Commission and the Department of Labor will issue documentation requirements for private and state and local government employers, labor organizations and employment agencies licensing and certification boards and accrediting asso. ciations who are subject to the Civil Rights Act of 1964,. and to Executive Order 11246. Such documentation requirements will be applicable to any state and local government employers who are subject to the equal employment opportunity requirements of Federal law.] Previously written employer or consultant reports of the ralidity study are acceptable if they are complete in regard to these documentation requirements, or if they satisfied requirements of guidelines which were in effect when the study was completed. If they are not complete, the required additional documentation should be appended. If necessary information is not available the report of the validity study may still be used as documentation, but its adequacy will be evaluated in terms of compliance with the requirements of these guidelines.
d. There are many employers and other users who have thirty or fewer persons in a particular job classification or appropriate combination of classifications or who have other conditions which make a criterion related study or a construct study infeasible, and who employ selection procedures for which a content validity justification is inappropriate. In such circumstances the user should seek to utilize selection procedures which have been demonstrated through other studies meet the standards of these guidelines (see § 6 below), or to demonstrate that the selection procedure is reasonably required for successful job performance or is necessary for the safety or efficiency of the user's business (see $ 3c above), or which have no adverse impact (see 84 above). If such user seeks to utilize a procedure having an adverse impact for which such a demonstration is unavailable the user should first consider joining with other users to conduct a cooperative validity study. Where no selection procedure for a job classification is available which satisfies the above, the user should utilize the procedure which is as job related as possible and which will minimize or eliminate adverse impact. $6 Cooperative Validity Studies and Use of Other Criterion-Related Validity
Studies a. It is the intent of the agencies issuing these guidelines to enconrage and facilitate cooperative development and validation efforts by employers, labor organizations and employment agencies to achieve selection procedures which are consistent with these guidelines.
b. Criterion related validity studies conducted by one test user, or described in test manuals and the professional literature, will be considered acceptable for use by another user when : (1) the weight of evidence from studies meeting the standards of $ 12 below shows that the procedure is valid and practically useful for the job in question; (2) the studies pertain to jobs which have substantially the same major job duties as shown by a job analysis which meets the standards set forth in section 12a below; and (3) where an investigation of test fairness is called for by $ 12c (6) below, the studies include an adequate sample of the racial, ethnic and sex subgroups that constitute significant factors in the user's relevant labor market for the job or jobs in question. If it is technically feasible for a user to conduct an internal validity study, and there are variables in the other studies which are likely to affect validity significantly the user may rely upon such studies only on an interim basis, and will be expected to conduct an internal validity study in accord with $ 12 below. Otherwise the user may rely upon such acceptable studies for operational use without an internal validity study.
C. Where a selection procedure is to be used in different units of a multiunit organization, or cooperatively by different users, and the validity study satisfies (1), (2) and (3), where applicable, of subparagraph b above, validity evidence obtained in one unit will suffice for the others, unless there are variableg in the units not studied which are likely to affect validity significantly. Simi. larly, where the validation process requires the collection of data pertaining to a particular job in representative units in a multiunit organization or among a group of users, evidence of validity for the job specific to each unit usually will not be required, even where evidence of validity is obtained from more than one user utilizing the same job classification. If validity evidence from such a study satisfies the requirements of subparagraph b above, evidence of validity specific to each unit usually will not be required. 87 No Assumption of Validity
a. Under no circumstances will the general reputation of a selection procedure, its author or its publisher, or casual reports of its validity or practical usefulness be accepted in lieu of evidence of validity. Specifically ruled out are: assumptions of validity based on a procedure's name or descriptive labels; all forms of promotional literature; data bearing on the frequency of a procedure's usage ; testimonial statements and credentials of sellsr, users, or consultants; and other non-empirical or anectdotal accounts of selection practices or selection outcomes.
b. Although professional supervision of selection activities is encouraged to