May 23, 2008

Stephen LleIllyn

Executive Officer

Executive Secretariat

Equal Employment Opportunity Commission

10^th^ Floor

1801 L Street, NW

Washington, DC 20507

Dear Mr. LleIllyn:

This is in response to the EEOC"s request for comment on its proposal to
submit the Uniform Guidelines on Employee Selection Procedures (UGESP)
to the Office of Management and Budget (OMB) for a three year approval
under the Paperwork Reduction Act of 1995 (PRA), published in the
Federal Register on March 25, 2008 (FR Vol. 73, No. 58, pp.15754-15755).

## Background

I am Senior Vice President of Gaucher Associates, a consulting firm
specializing in employment law and compliance, including equal
employment opportunity and affirmative action requirements. I have been
employed with the firm since 1996. Prior to that I was employed by the
Office of Federal Contract Compliance Programs (OFCCP) for seventeen
years, eight of them as a field compliance officer, and nine as the
Director of Regional Operations for the New England Regional Office. A
major aspect of our business is the preparation of Affirmative Action
Programs for clients covered by Executive Order 11246, as amended.

I greatly appreciate this opportunity to comment once again on the
agency's request for OMB approval under the PRA of the UGESP. I note
that the EEOC has withdrawn its proposed additions to the Questions &
Answers to the Uniform Guidelines (Q&A). While the EEOC has asked for
comments which will assist it in evaluating this request for PRA
clearance in four ways, I may also comment on that decision.

**Is the collection of information necessary for the proper performance
of the functions of the agency?**

I believe it is not, for several reasons. In the first place, although
the EEOC contends that the UGESP applies to all employers covered by
Title VII, in fact, in nearly thirty-year since the inception of the
UGESP, we have yet to see any meaningful enforcement of its provisions
by the EEOC. The agency primarily engaged in the enforcement of the
UGESP is the U.S. Department of Labor's Office of Federal Contract
Compliance Programs. Moreover, if an attempt [were]{.underline} made by
the agency to enforce the UGESP in any serious way, I believe the
response from employers would force the EEOC to withdraw the UGESP
entirely.

Secondly, in 1999, when the EEOC published a request for public comment
regarding clearance under the PRA for its recordkeeping "requirements",
including those under the UGESP, I responded by pointing out that the
operative word in the UGESP was "should"---employers "should" collect
and maintain information as to the impact that their selection criteria
had on employment by race, ethnicity and gender. In our view, nothing in
the UGESP requires employers to collect any information. That is why
they are "Guidelines". The EEOC's only response was to simply assert
that "should" meant "required".

This is not the case. According to a memorandum from Leonard J.
Biermann, then Assistant Regional Administrator for the OFCCP's Chicago
Region, dated December 13, 1982 (copy attached):

> "...only those sections of our regulations which contain language that
> cite absolute requirements of contractors are to be cited in
> conciliation agreements. More specifically, references cited must
> include words which indicate that the Contractor 'Shall', 'Must', or
> 'Will'. References using the words 'should' or 'may' are not
> enforceable..."

Since the OFCCP's regulations include the UGESP at 41 CFR Part 60-3, and
those regulations use the term "should" throughout, it seems clear that
what ARA Biermann was saying in 1982 was that the UGESP is "not
enforceable".

Thirdly, as noted, although the EEOC does not enforce the provisions of
the UGESP, the OFCCP does. Throughout my comments, I will cite several
ways to illustrate the true burden of the UGESP, and to demonstrate why
the cost of compliance with these guidelines is vastly understated by
the EEOC.

**Is the agency's estimate of the burden of collection of the
information accurate?**

We believe that the EEOC's estimate is not accurate. The agency suggests
that the only cost is that of collecting and storing an "applicant's"
response to a request for race and gender information. However, even a
brief reading of the UGESP suggests that there is much more to the
process of compliance with the guidelines than simply collecting and
storing a record of an applicant's response to a request for race and
gender information.

In my 1999 comments on the burden imposed by the OFCCP in enforcing the
UGESP, I provided examples of Notices of Violation and Conciliation
Agreements containing language such as the following:

1.  [Violation]{.underline}

> Section 60-3.4A of the regulations requires that contractors 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 as set forth in Section 3.4B,
> in order to determine the contractor's own compliance with the uniform
> guidelines on employee selection procedures. Pursuant to 41 CFR
> Chapter 60-3.15A(2), the contractor should maintain and have available
> for each job, records or other information showing whether the total
> selection process for that job has an adverse impact on any of the
> groups for which records are called for by 41 CFR Chapter 60-3.4B.
> Further, 41 CFR Chapter 60-2.12(m) requires that contractors compile
> and maintain, as part of their AAP, support data, including but not
> limited to applicant flow data and applicant rejection ratios
> indicating minority and sex status.

As should be clear, it isn't just the collection and maintenance of the
race and gender of each "applicant", however that might be defined. It
is the maintenance of all collateral records, including records
indicating selection rates, by gender and by individual race, at each
stage of the selection process. The EEOC"s suggestion that the entire
recordkeeping burden consists of 30 seconds per record is woefully
inadequate.

In 1999, prior to the OFCCP's issuance of its Internet Applicant
Recordkeeping requirements, the "definition" of an applicant was
referred to in the following way by the OFCCP:

> "With regard to the above requirements, the term "applicant" is
> defined in the answer to Question 15 of Part 60-3 Uniform Guidelines
> on Employee Selection Procedures (1978), Adoption of Questions and
> Answers to Clarify and Provide a Common Interpretation of the Uniform
> Guidelines on Employee Selection Procedures, as follows:
>
> *'...The concept of an applicant is that of a person who has indicated
> an interest in being considered for hiring, promotion, or other
> employment opportunities. This interest might be expressed by
> completing an application form, or might be expressed orally,
> depending upon the employer's practice...Records should be kept for
> persons who were applicants or candidates at any stage of the
> process*.'"

This particular Notice of Violations from the OFCCP went on to prescribe
corrective action:

> ["Corrective Action]{.underline}:
>
> Effective immediately, \[CONTRACTOR\] shall make available to OFCCP,
> upon request, at least the records listed below for each person that
> indicates an interest in being considered for hire by \[CONTRACTOR\],
> to \[CONTRACTOR\] directly or to its recruitment sources, including
> employment agencies, college placement offices and similar
> organizations, executive search firms/agencies, company or 3^rd^ party
> websites and private or State employment organizations that evaluate
> applicants for employment on \[CONTRACTOR\]'s behalf. \[CONTRACTOR\]
> shall maintain records for persons who were applicants at any stage of
> the process.

a.  Application forms and/or resumes

b.  Race or ethnic group identification as set forth in Section 3.4B
    \[Blacks (Negroes), American Indians (including Alaskan Natives),
    Asians (including Pacific Islanders), Hispanic (including persons of
    Mexican, Puerto Rican, Cuban, Central or South American or other
    Spanish origin or culture regardless of race), and whites
    (Caucasians) other than Hispanic\].

c.  Gender identification.

d.  Interview notes.

e.  Results of any tests taken by applicants."

There are two parts to this. First is the requirement, from the UGESP,
that employers must also collect information from:

1.  employment agencies,

2.  college placement offices and similar organizations,

3.  executive search firms/agencies,

4.  company or 3^rd^ party websites and

5.  private or State employment organizations that evaluate applicants
    for employment on \[CONTRACTOR\]'s behalf.

Second is the requirement that the information to be obtained goes
beyond simply race and gender information, and includes such elements as
interview notes, results of tests, and any other information which would
permit calculation of selection rates by gender and by individual race.
These are all elements of the UGESP. This is not the OFCCP making this
up. This is part of the burden of recordkeeping, if in fact the UGESP is
required of all employers covered by Title VII. This is not 30 seconds
per record, collected and compiled, by a minimum-wage clerical staff
person.

Then of course, there is the analysis of the data. As the Notice of
Violations put it in its corrective action section:

> "Further, \[CONTRACTOR\] and its employment search firms/agencies
> shall maintain and have available for each job, for which it made a
> selection for hire, records or information showing whether the total
> selection process for that job has an adverse impact on any of the
> groups for which records are called for by Section 60-3.4B.
> \[CONTRACTOR\] shall make these adverse impact determinations at least
> annually, no later than the expiration date of its annual affirmative
> action program (AAP), for each job for each such group which
> constitutes at least 2% of the labor force in the relevant labor area
> or 2% of the applicable workforce. Where a total selection process for
> a job has an adverse impact, \[CONTRACTOR\] shall maintain and have
> available records or other information showing which components of the
> process have an adverse impact, and one or more of the types of
> documentation of validity evidence required by Section 60-3.6, 3.7,
> 3.13, and 3.17."

Again, the recordkeeping burden encompasses not only employers, but
their agents, such as search firms and employment agencies, as well. And
it is not just a record of the applicant's race, ethnicity, or gender,
not just the data on the individual aspects of the selection process,
but records of the impact of those selection processes which must be
maintained, including an identification of which components of the
selection process, in its entirety and individually, have an "adverse
impact", which is loosely defined by the agency as being a selection
rate for one group which is simply less than 80% of the rate for the
most favored group.

Moreover, even though the Q&A's to the UGESP appear to provide a
"lifeline" to employers "drowning" in the paperwork requirements
generated by the Guidelines, in that they suggest that if there are too
few hires for differences in selection rates to be statistically
significant, as outlined at Q&A 21, and thus too small "to constitute
adverse impact", the "lifeline" quickly disappears since there is no
companion provision that, under those circumstances, they need no longer
collect the data. Instead, Q&A 85 states that when there is insufficient
evidence to determine if there is an adverse impact in selection
procedures, employers must maintain data on the selection process until
there is sufficient evidence to make a determination, or until the job
changes substantially.

How long must that data be maintained, in the absence of a "substantial"
change in a job? The OFCCP offers a clue. In recent compliance
evaluations, the OFCCP has asked for data for a period going back over
two years from the date of the request (see attached onsite
documentation request). The OFCCP's own regulations require that covered
Federal contractors maintain the supporting documentation for the
current year's Affirmative Action Program (AAP), as well as the
supporting documentation for the previous year's AAP. Since the current
AAP does not become the previous year's AAP for twelve months, the
actual time period for which records should be maintained is at least
three years. That's a long time to track information.

**What is the quality, utility, and clarity of the information to be
collected?**

Several issues face the quality, utility, and clarity of the information
to be collected, not only with respect to an applicant's race,
ethnicity, or gender, but also in terms of the additional information
necessary to determine the impact of selection procedures.

The UGESP provides no guidance on how to deal with the new race/ethnic
classifications established by the OMB in 1997, particularly with
respect to persons of multiple race/ethnicity. The EEOC has issued
guidelines that conflict substantially with the OMB's 2000 memorandum on
how to treat multi-racial individuals. Where the OMB said that if one of
the races of a biracial individual is White, they should be counted as
the "other" race, the EEOC has decreed that such persons fall into the
multiracial classification. The UGESP, issued in 1978, contains no
provision for dealing with multiracial individuals, but says that self
identification "may be appropriate" where an applicant is not seen and
their race/ethnicity (or gender) is not known to the employer. Visual
identification of multiracial individuals (as well as of Hawaiians/Other
Pacific Islanders) is problematic.

To the extent that individuals may be given the opportunity to
self-identify at some point in the process of employee selection, there
is also the question of what to do to reconcile those individuals who
fail to identify their race/ethnicity and/or gender in the application
process, but are subsequently hired. Is an employer obligated to go back
and determine, from their applicant records, whether or not the
individual self-identified prior to employment? The UGESP is not clear
on this point.

The OFCCP, we expect, would argue that once an applicant has been
interviewed, the obligation to make a visual identification is
operational, and that employers would have no excuse for not having
counted that individual in their applicant pools. And although the
number of companies covered under Title VII of the Civil Rights Act is
vastly larger than those covered by the Executive Order, to the best of
our knowledge, only the latter have been subjected to scrutiny with
respect to compliance with the provisions of the Uniform Guidelines on
Employee Selection Procedures (UGESP).

While the OFCCP has issued Directive 265 (copy attached) to prevent
compliance officers from insisting that contractors "guess" at the race
and gender of otherwise unknown applicants, we note that the directive
starts off (as do its regulations) by stating that "several provisions
in the regulations implementing Executive Order 11246, as amended,
**require** \[emphasis added\] Federal contractors to **obtain**
\[emphasis added\] data on the gender, race, and ethnicity of
applicants.

The American Heritage College Dictionary, a good a source as any,
defines obtain as a transitive verb, meaning "To succeed in gaining
possession of as a result of planning or endeavor; acquire. Considering
that self-identification is voluntary, it is difficult to imagine why
contractors would be required to "obtain" this information. I understand
perfectly well that contractors are required to solicit or request this
information, but it's not clear how a requirement to "obtain" the
information slipped in. Consider the definition of request, another
transitive verb. "1. To express a desire for; ask for. 2. To ask (a
person) to do something.

How does this work in practice? An example from a recent OFCCP
compliance evaluation may help. The agency recently completed a
compliance evaluation of Children's Hospital in Boston. In the course of
that evaluation, the agency apparently determined that there were more
applicants, including more minority applicants, for nursing positions
than had appeared in the hospital's applicant flow data. The hospital
had reported 416 applicants and 210 hires, a two-to-one ratio in the
twelve months preceding the date of their Affirmative Action Program.
The OFCCP requested and obtained copies of all applications for nursing
positions over a two year period. They then spent a considerable amount
of time and energy trying to identify the race, ethnicity, and gender of
additional applicants.

They determined that there had been a total of 1,738 applicants, 111 of
them Minorities (aggregate), and 816 non-Minorities, with another 811
applicants of unknown race/ethnicity. The calculation of selection
rates, aggregate Minority to White, indicated a statistically
significant difference in selection rates. Under the UGESP (assuming all
of the Minority applicants were the same race/ethnicity), the hospital
would have been obligated to demonstrate at which point in its selection
procedures, the adverse impact occurred, and provided an opportunity to
validate any selection procedures which resulted in an adverse impact,
if it could.

In a footnote, the OFCCP stated that of the 111 Minority applicants, 19
applied twice, reducing the number of Minority applicants to 92. Three
applicants withdrew from the process (89), five were not qualified for
the positions they applied for (84), six lacked required degrees (78),
and three did not apply for nursing positions, so that the applicant
pool was reduced to 75, of which 28 were hired. There is no comparable
information with respect to the non-Minority applicant pool.

The OFCCP did identify "initial screening and interviewing" as the point
at which the disparities occurred. The hospital apparently did not
attempt to defend or validate its screening and interviewing techniques.
The OFCCP asserted that the differences in selection rates "were not
explained by the qualifications of the Minority applicants." The
hospital did not contest this, and agreed to a remedy that would provide
back pay for all Minorities identified as having been discriminated
against because of their status as Minorities. The Conciliation
Agreement includes a release that states that "Children's Hospital will
offer employment to candidates based on their meeting the qualifications
for the position." This of course suggests that the calculations of
alleged adverse impact may not have been based on selections for a "job"
as described in the UGESP, but simply on the number of selections to the
aggregate of jobs referred to by the OFCCP as a "Job Group".

This is of concern because those employers who think they are complying
with the UGESP by calculating selection rates for a job may still be in
jeopardy of being charged with claim of adverse impact in selection, if
they are subject to an OFCCP compliance evaluation. Although the OFCCP's
own Federal Contract Compliance Manual, at Chapter Three, Section 3K03
describes in detail how a refined "impact ratio analysis" should be
conducted, by job title, recent experience has shown that the OFCCP is
perfectly capable of asserting discrimination in terms of both Job Group
(and aggregate Minority status), and has even gone further, in one
instance that we are aware, of, rolling data in several Administrative
Support Job Groups up into an entire EEO category for purposes of
asserting that there has been discrimination in hiring. How much clarity
is there in the information to be collected, if the agencies responsible
for administering the UGESP either do not do so, or ignore its
provisions?

The EEOC estimates that there are some 1 billion, 778 million, 663
thousand, and 387 applications in play every year. With the OFCCP's
requirements, that number should be doubled, or even tripled. The number
appears to be based in part on hires, and does not account for those
"positions" that are not, in the event, filled, although I would expect
the number to be far fewer than the number that are. And it is important
not to forget that the UGESP isn't just about applicants and hires. The
same obligation to maintain records extends to internal promotions, to
training, and to terminations, all of which are selection decisions. The
burden of maintaining and analyzing that data is not even addressed in
this proposal.

**Is the burden of the collection of information on those who are to
respond minimized?**

We believe it is not, for the reasons specified above. Clearly, the
estimate of the cost of recordkeeping, as one measure of the burden, has
been greatly underestimated. The recordkeeping burdens are much broader
and more imposing than simply collecting and maintaining a paper or
electronic "self-identification" form. The burden extends well beyond
simply making an electronic copy of an individual self-identification
form. It involves tracking that form, calculating the selection results,
breaking those results down into the individual stages of the selection
process and testing again for evidence of adverse impact in selections,
and now that there are additional race/ethnicity classifications,
conducting analyses by those race/ethnic classifications as well.

**The Proposed Additions to the Q&A's to the UGESP**

In 2004 the EEOC proposed five additions to the Q&A's, a safer bet than
trying to update the UGESP itself. I commented on three of those, #'s
96, 97, and 98, since in my estimation #'s 94 and 95 were self-evident.
Q&A #94 affirmed that federal nondiscrimination laws apply to employers
and others when they use the Internet and related electronic data
processing technologies for recruitment and selection, and Q&A #95
affirmed that Internet recruitment, like traditional recruitment, is
exempt from UGESP requirements, but is subject to the non-discrimination
requirements of Title VII.

Q&A #96 suggested that an individual would be defined as an applicant in
the context of electronic databases if and only if three criteria are
met: (1) the employer acts to fill a particular position; (2) an
individual has followed the employer's procedures for submitting
applications; and (3) the individual has actually expressed an interest
in the particular position.

Our concerns at the time were that, among other things, the term "acts
to fill a particular position" was very vague. The OFCCP, in its
Internet Applicant Recordkeeping regulations has in fact confirmed our
concerns, and requires that records be kept for any position, regardless
of whether or not the position has been filled (as the attached email
response from the OFCCP indicates). How can there be an impact when
there is no selection? Yet in the view of the OFCCP, records must still
be maintained.

Question #97 asked, "Are all the search criteria that employers use
subject to disparate impact analysis". The answer to this was yes, from
which I inferred that "search criteria" referred to the
[selection]{.underline} criteria used to produce the pools of UGESP
applicants from which interviewees are selected, and ultimately,
employment selections are made. We discussed this issue at length in our
response. The OFCCP's Internet Applicant Recordkeeping requirements
adopted much of the EEOC's proposal, but downplay the ways in which the
impact of what they called "basic qualifications" would be determined.
Ultimately, we had the same problems with this proposed Q&A sequence as
we have had with the original UGESP. It continues to require that
employers collect and maintain data, even when they have too few
selections over too long a period of time to be able to support a
statistically significant finding of adverse impact at any point.

Finally, Q&A #98 stated that "online tests, including tests of general
or specific skills, are selection procedures rather than recruitment
under UGESP because the test results are used as a basis for making
employment decisions." Under the UGESP, all such tests require
validation if they have an adverse impact. The trick is to determine
whether there is adverse impact in the context of not being able to ask
for race, ethnicity, or gender information.

Under the UGESP, employers are exhorted to make an effort to collect
race, ethnicity, and gender information on all persons who apply for
employment. All selection procedures, formal or informal, are subject to
analysis for disparate impact. Since the original Q&A to the UGESP did
not [define]{.underline} an applicant, but only described the "concept"
of an applicant, the issue of when to begin requesting voluntary
self-disclosure of race, ethnicity, and gender information has been tied
to the [definition]{.underline} of applicant. Most of our clients, and I
expect other employers, would want to start defining an applicant as a
person who meets minimum qualifications. Unfortunately, use of minimum
standards as a starting point for the definition of an applicant would
be a violation of the UGESP. The OFCCP's Internet Applicant
Recordkeeping requirements were intended to address this issue, although
it is not clear how recreating the results of an internet search a
month, let alone twelve months, after it has taken place, is to be
accomplished.

I appreciate the fact that while the EEOC says that it will not pursue
the additional Q&A's at this time, it is reserving the right to issue
further guidance in the future on this important issue.

## Summary

Again, I appreciate this opportunity to comment on the request for
renewal of PRA clearance for the UGESP. I believe that the EEOC has not
fully demonstrated the cost and complexity of compliance with these
guidelines, and I continue to believe that they do not, and should not
be construed as, imposing a requirement on employers covered by Title
VII. Tracking and evaluating selection procedures is, we believe, a good
idea. But to on the one hand claim that it is in fact required, and on
the other hand, permit other Federal agencies to ignore and/or misuse
its provisions, does not seem to be in the best interests of Civil
Rights enforcement, or a burden which should be imposed on employers
covered by Title VII of the Civil Rights Act.

Sincerely,

Stan Koper

Senior Vice President

Gaucher Associates