EEOC PRIVATE LETTER ON TITLE VII, ADEA & ADEA QUALIFICATION STANDARDS AND DISPARATE IMPACT

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Using the Freedom of Information Act (FOIA), BNA has obtained a private letter “to respond to a request for public comment from a federal agency or department. The EEOC notes that the letter represents “an informal discussion of the noted issue and does not constitute an official opinion of the Commission.” The letter in its entirety may be viewed here.

The letter, dated May 19, 2010 addresses whether:


it is potentially a legal problem” to require a job applicant to possess knowledge, skills, or abilities (KSAs) that can be acquired or mastered in eight or fewer hours in order to be hired for a job. You are particularly concerned about the possible adverse impact that such requirements may have.



The EEOC’s response includes the caveat that any facially neutral practice that has a significant disparate impact on a protected group is illegal unless the practice is “job related and consistent with a business necessity.” The EEOC also states that even if the practice is job-related and consistent with business necessity, the employer may nonetheless be liable if there is an alternative practice “that would be equally effective in predicting job performance, but that would not disproportionately exclude the protected group.”

So far … nothing new.

The EEOC’s answer to the question seems soothing. It is:

We know of no reason to think that a KSA would have an unlawful disparate impact on the bases of race, sex, color, national origin, religion, age, or disability simply because it would take fewer than eight hours to learn it. To the contrary, we think it highly unlikely that impact could be established on this basis alone. The reason for the policy or the availability of less discriminatory alternatives or reasonable accommodations would arise only if impact were established.


However, I would caution readers to read between the lines. The EEOC says they “know of no reason” why there would be “unlawful disparate impact simply because it would take fewer than eight hours to learn it.” I can think of some. For example, it might take an assembler less than 8 hours to learn to use a microscope to inspect wafer products for imperfections. A test of this ability (which the author happened to create for a large southeastern semiconductor company in 1991) could easily produce adverse impact, and therefore, would have to be validated. Just my opinion … but this letter carries no “formal” value, and should be read for what it is --- a hypothetical answer to a hypothetical question.

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