(j) No member of the Department shall present information to a grand jury seeking a bill of indictment, or file an information, against a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General. (k) In requesting the Attorney General's authorization to question, to arrest or to seek an arrest warrant for, or to present information to a grand jury seeking a bill of indictment or to file an information against, a member of the news media for an offense which he is suspected of having committed during the course of, or arising out of, the coverage or investigation of a news story, or committed while engaged in the performance of his official duties as a member of the news media, a member of the Department shall state all facts necessary for determination of the issues by the Attorney General. A copy of the request shall be sent to the Director of Public Affairs. (1) When an arrest or questioning of a member of the news media is necessary before prior authorization of the Attorney General can be obtained, notification of the arrest or questioning, the circumstances demonstrating that an exception to the requirement of prior authorization existed, and a statement containing the information that would have been given in requesting prior authorization, shall be communicated immediately to the Attorney General and to the Director of Public Affairs. (m) In light of the intent of this section to protect freedom of the press, news gathering functions, and news media sources, this policy statement does not apply to demands for purely commercial or financial information unrelated to the news gathering function. (n) Failure to obtain the prior approval of the Attorney General may constitute grounds for an administrative reprimand or other appropriate disciplinary action. The principles set forth in this section are not intended to create or recognize any legally enforceable right in any person. [Order No. 916-80, 45 FR 76436, Nov. 19, 1980] § 50.12 Exchange of FBI identification records. (a) The Federal Bureau of Investigation, hereinafter referred to as the FBI, is authorized to expend funds for the exchange of identification records with officials of federally chartered or insured banking institutions to promote or maintain the security of those institutions and, if authorized by state statute and approved by the Director of the FBI, acting on behalf of the Attorney General, with officials of state and local governments for purposes of employment and licensing, pursuant to section 201 of Public Law 92-544, 86 Stat. 1115. Also, pursuant to 15 U.S.C. 78q, 7 U.S.C. 21 (b)(4)(E), and 42 U.S.C. 2169, respectively, such records can be exchanged with certain segments of the securities industry, with registered futures associations, and with nuclear power plants. The records also may be exchanged in other instances as authorized by federal law. (b) The FBI Director is authorized by 28 CFR 0.85(j) to approve procedures relating to the exchange of identification records. Under this authority, effective September 6, 1990, the FBI Criminal Justice Information Services (CJIS) Division has made all data on identification records available for such purposes. Records obtained under this authority may be used solely for the purpose requested and cannot be disseminated outside the receiving departments, related agencies, or other authorized entities. Officials at the governmental institutions and other entities authorized to submit fingerprints and receive FBI identification records under this authority must notify the individuals fingerprinted that the fingerprints will be used to check the criminal history records of the FBI. The officials making the determination of suitability for licensing or employment shall provide the applicants the opportunity to complete, or challenge the accuracy of, the information contained in the FBI identification record. These officials also must advise the applicants that procedures for obtaining a change, correction, or updating of an FBI identification record are set forth in 28 CFR 16.34. Officials making such determinations should not deny the li- cense or employment based on infor- mation in the record until the appli- cant has been afforded a reasonable time to correct or complete the record, or has declined to do so. A statement incorporating these use-and-challenge requirements will be placed on all records disseminated under this pro- gram. This policy is intended to ensure that all relevant criminal record infor- mation is made available to provide for the public safety and, further, to pro- tect the interests of the prospective employee/licensee who may be affected by the information or lack of informa- $50.14 Guidelines on employee selec- The guidelines set forth below are in- tended as a statement of policy of the Department of Justice and will be ap- plied by the Department in exercising its responsibilities under Federal law relating to equal employment oppor- NOTE: These guidelines are issued jointly by four agencies. Separate official adoptions For official citation see section 18 of these E. Indian Preference Not Affected 3. Discrimination Defined: Relationship Be- A. Procedure Having Adverse Impact Con- B. Consideration of Suitable Alternative B. Applicable Race, Sex and Ethnic Groups C. Evaluation of Selection Rates. The D. Adverse Impact And The "Four-Fifths E. Consideration of User's Equal Employ- 5. General Standards for Validity Studies A. Acceptable types of Validity Studies B. Criterion-Related, Content, and Con- C. Guidelines Are Consistent with Profes- D. Need For Documentation of Validity E. Accuracy and Standardization F. Caution Against Selection on Basis of Knowledges, Skills or Abilities Learned in Brief Orientation Period G. Method of Use of Selection Procedures I. Use of Selection Procedures for Higher J. Interim Use of Selection Procedures K. Review of Validity Studies for Currency 6. Use of Selection Procedures Which Have A. Use of Alternate Selection Procedures B. Where Validity Studies Cannot or Need (1) Where Informal or Unscored Proce- (2) Where Formal And Scored Procedures 7. Use of Other Validity Studies A. Validity Studies not Conducted by the B. Use of Criterion-Related Validity Evi- C. Validity Evidence from Multi-Unit D. Other Significant Variables A. Encouragement of Cooperative Studies B. Standards for Use of Cooperative Studies 10. Employment Agencies and Employment A. Where Selection Procedures Are Devised by Agency B. Where Selection Procedures Are Devised A. Affirmative Action Obligations B. Encouragement of Voluntary Affirmative Action Programs TECHNICAL STANDARDS 14. Technical Standards for Validity Studies A. Validity Studies Should be Based on Review of Information about the Job B. Technical Standards for Criterion-Related Validity Studies (1) Technical Feasibility (2) Analysis of the Job (3) Criterion Measures (4) Representativeness of the Sample (5) Statistical Relationships (6) Operational Use of Selection Procedures (7) Over-Statement of Validity Findings (8) Fairness (a) Unfairness Defined (b) Investigation of Fairness (c) General Considerations in Fairness Investigations (d) When Unfairness Is Shown (e) Technical Feasibility of Fairness Studies (f) Continued Use of Selection Procedures When Fairness Studies not Feasible C. Technical Standards for Content Validity Studies (1) Appropriateness of Content Validity Studies (2) Job Analysis for Content Validity (4) Standards For Demonstrating Con tent Validity (5) Reliability (6) Prior Training or Experience (7) Training Success (8) Operational Use (9) Ranking Based on Content Validity Studies D. Technical Standards For Construct Validity Studies (1) Appropriateness of Construct Validity Studies (2) Job Analysis For Construct Validity Studies (3) Relationship to the Job (4) Use of Construct Validity Study Without New Criterion-Related Evidence (a) Standards for Use (b) Determination of Common Work Behaviors DOCUMENTATION OF IMPACT AND VALIDITY 15. Documentation of Impact and Validity Evidence A. Required Information (1) Simplified Recordkeeping for Users With Less Than 100 Employees (2) Information on Impact (a) Collection of Information on Impact (b) When Adverse Impact Has Been Eliminated in The Total Selection Proc ess (c) When Data Insufficient to Determine Impact (3) Documentation of Validity Evidence (a) Type of Evidence (b) Form of Report (c) Completeness B. Criterion-Related Validity Studies (1) User(s), Location(s), and Date(s) of Study (2) Problem and Setting (3) Job Analysis or Review of Job Information (4) Job Titles and Codes (5) Criterion Measures (6) Sample Description (7) Description of Selection Procedure (8) Techniques and Results (9) Alternative Procedures Investigated (10) Uses and Applications (11) Source Data (12) Contact Person (13) Accuracy and Completeness C. Content Validity Studies (1) User(s), Location(s), and Date(s) of Study (2) Problem and Setting (3) Job Analysis-Content of the Job (4) Selection Procedure and its Content (5) Relationship Between Selection Procedure and the Job (6) Alternative Procedures Investigated (7) Uses and Applications (8) Contact Person (9) Accuracy and Completeness D. Construct Validity Studies (1) User(s), Location(s), and Date(s) of Study (2) Problem and Setting (3) Construct Definition (4) Job Analysis (5) Job Titles and Codes (6) Selection Procedure (7) Relationship to Job Performance (8) Alternative Procedures Investigated (9) Uses and Applications (10) Accuracy and Completeness (11) Source Data (12) Contact Person E. Evidence of Validity from Other Studies (1) Evidence from Criterion-Related Va lidity Studies (a) Job Information (b) Relevance of Criteria (c) Other Variables (d) Use of the Selection Procedure (e) Bibliography (2) Evidence from Content Validity Stud ies (3) Evidence from Construct Validity Studies F. Evidence of Validity from Cooperative Studies G. Selection for Higher Level Jobs H. Interim Use of Selection Procedures 16. Definitions DEFINITIONS APPENDIX 17. Policy Statement on Affirmative Action (see Section 13B) 18. Citations GENERAL PRINCIPLES A. Need SECTION 1. Statement of purpose for uniformity-Issuing agencies. The Federal government's need for a uniform set of principles on the question of the use of tests and other selection procedures has long been recognized. The Equal Employment Opportunity Commission, the Civil Service Commission, the Department of Labor, and the Department of Justice jointly have adopted these uniform guidelines to meet that need, and to apply the same principles to the Federal Government as are applied to other employers. B. Purpose of guidelines. 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. They are designed to provide a framework for determining the proper use of tests and other selection procedures. These guidelines do not require 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 users operating under merit principles. C. Relation to prior guidelines. These guidelines are based upon and supersede previously issued guidelines on employee selection procedures. These guidelines have been built upon court decisions, the previously issued guidelines of the agencies, and the practical experience of the agencies, as well as the standards of the psychological profession. These guidelines are intended to be consistent with existing law. SEC. 2. Scope— A. Application of guidelines. These guidelines will be applied by the Equal Employment Opportunity Commission in the enforcement of title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (hereinafter "Title VII"); by the Department of Labor, and the contract compliance agencies until the transfer of authority contemplated by the President's Reorganization Plan No. 1 of 1978, in the administration and enforcement of Executive Order 11246, as amended by Executive Order 11375 (hereinafter "Executive Order 11246'); by the Civil Service Commission and other Federal agencies subject to section 717 of title VII; by the Civil Service Commission in exercising its respon sibilities toward State and local governments under section 208(b)(1) of the Intergovernmental-Personnel Act; by the Department of Justice in exercising its responsibilities under Federal law; by the Office of Revenue Sharing of the Department of the Treasury under the State and Local Fiscal Assistance Act of 1972, as amended; and by any other Federal agency which adopts them. B. Employment decisions. These guidelines apply to tests and other selection procedures which are used as a basis for any employment decision. Employment decisions include but are not limited to hiring, promotion, demotion, membership (for example, in a labor organization), referral, retention, and licensing and certification, to the extent that licensing and certification may be covered by Federal equal employment opportunity law. Other selection decisions, such as selection for training or transfer, may also be considered employment decisions if they lead to any of the decisions listed above. C. Selection procedures. These guidelines apply only to selection procedures which are used as a basis for making employment decisions. For example, the use of recruiting procedures designed to attract members of a particular race, sex, or ethnic group, which were previously denied employment opportunities or which are currently underutilized, may be necessary to bring an employer into compliance with Federal law, and is frequently an essential element of any effective affirmative action program; but recruitment practices are not considered by these guidelines to be selection procedures. Similarly, these guidelines do not pertain to the question of the lawfulness of a seniority system within the meaning of section 703(h), Executive Order 11246 or other provisions of Federal law or regulation, except to the extent that such systems utilize selection procedures to determine qualifications or abilities to perform the job. Nothing in these guidelines is intended or should be interpreted as discouraging the use of a selection procedure for the purpose of determining qualifications or for the purpose of selection on the basis of relative qualifications, if the selection procedure had been validated in accord with these guidelines for each such purpose for which it is to be used. D. Limitations. These guidelines apply only to persons subject to title VII, Executive Order 11246, or other equal employment opportunity requirements of Federal law. These guidelines do not apply to responsibilities under the Age Discrimination in Employment Act of 1967, as amended, not to discriminate on the basis of age, or under sections 501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate on the basis of handicap. E. Indian preference not affected. These guidelines do not restrict any obligation imposed or right granted by Federal law to users to extend a preference in employment to Indians living on or near an Indian reservation in connection with employment opportunities on or near an Indian reservation. SEC. 3. Discrimination defined: Relationship between use of selection procedures and discrimination- 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. SEC. 4. Information on impact- A. Records concerning impact. 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 as set forth in paragraph B below in order to determine compliance with these guidelines. Where there are large num bers 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. B. Applicable race, sex, and ethnic groups for recordkeeping. The records called for by this section are to be maintained by sex, and the following races and ethnic groups: 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), whites (Caucasians) other than Hispanic, and totals. The race, sex, and ethnic classifications called for by this section are consistent with the Equal Employment Opportunity Standard Form 100, Employer Information Report EEO-1 series of reports. The user should adopt safeguards to insure that the records required by this paragraph are used for appropriate purposes such as determining adverse impact, or (where required) for developing and monitoring affirmative action programs, and that such records are not used improperly. See sections 4E and 17(4), below. C. Evaluation of selection rates. The "bottom line." If the information called for by sections 4A and B above shows that the total selection process for a job has an adverse impact, the individual components of the selection process should be evaluated for adverse impact. If this information shows that the total selection process does not have an adverse impact, the Federal enforcement agencies, in the exercise of their administrative and prosecutorial discretion, in usual circumstances, will not expect a user to evaluate the individual components for adverse impact, or to validate such individual components, and will not take enforcement action based upon adverse impact of any component of that process, including the separate parts of a multipart selection procedure or any separate procedure that is used as an alternative method of selection. However, in the following circumstances the Federal enforcement agencies will expect a user to evaluate the individual components for adverse impact and may, where appropriate, take enforcement action with respect to the individual components: (1) Where the selection procedure is a significant factor in the continuation of patterns of assignments of incumbent employees caused by prior discriminatory employment practices, (2) where the weight of court decisions or administrative interpretations hold that a specific procedure (such as height or weight requirements or no-arrest records) is not job related in the same or similar circumstances. In unusual circumstances, other than those listed in (1) and (2) above, the Federal enforcement agencies may request a user to evaluate the individual components for adverse impact |