Request is to the OMB for a three-year extension without change under the Paperwork Reduction Act
The Equal Employment Commission (EEOC) published in the Federal Register a Notice of Information Collection seeking comments on the burden of the recordkeeping requirements of the Uniformed Guidelines on Employment Selection Procedures (UGESP). EEOC made the request to the Office of Management and Budget (OMB) seeking a three-year extension without any changes under the Paperwork Reduction Act (PRA).
The UGESP have been around since 1978 and have been adopted by the EEOC, the Civil Service Commission, the Department of Labor (DOL), and the Department of Justice. “These guidelines incorporate a single set of principles which are designed to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of Federal law prohibiting employment practices which discriminate on grounds of race, color, religion, sex, and national origin.”
The guidelines apply only to selection procedures used as a basis for making employment decisions and asks for collection and storage of certain human resources documents associated with applicants and employees. In section § 1607.4 “each user should maintain and have available for inspection records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group.”
EEOC states that the only burden they are seeking to estimate is the cost of collecting and storing a job applicant’s gender, race, and ethnicity data. The costs are assumed to be the time cost associated with entering keystrokes only without conducting any analyses, since that is not required by the EEOC.
However, the same regulations enforced by the OFCCP, at 41 CFR §60-3.15, state that employers with over 100 employees, “should maintain and have available for each job information on adverse impact of the selection process for that job, and where it is determined a selection process has an adverse impact, evidence of validity…” and that “[a]dverse impact determinations should be made at least annually..”
Written comments can be submitted on or before June 25, 2021.
OutSolve’s Take
As noted, the EEOC is only asking for clearance under the Paperwork Reduction Act (PRA) for the collection and maintenance of documentation to show whether an employer’s selection procedures for any job (not job group) have an adverse impact by race or gender. The EEOC is not asking for clearance to account for the cost of conducting adverse impact analyses or validation studies. Nor does the OFCCP, which defers to the EEOC with respect to PRA clearance for the UGESP.
The OFCCP also has its own regulations that require recordkeeping. Adverse/disparate impact can result in a violation of Title VII or the OFCCP’s regulations enforcing Executive Order 11246. Clients are advised to both maintain data on applicants, hires, and other personnel activity, to analyze that data to ensure that no otherwise-neutral selection criteria have an adverse/disparate impact on employment by race/ethnicity or gender, and to validate those criteria where necessary. If you’d like additional information on recordkeeping requirements or Adverse/disparate impact analyses, reach out to us at info@outsolve.com or by calling 888-414-2410.