EEOC Moves to Roll Back Longstanding Hiring Guidelines

The Equal Employment Opportunity Commission (EEOC) is moving to partially rescind the Uniform Guidelines on Employee Selection Procedures (UGESP), a decades-old framework that helps employers evaluate whether their hiring and promotion practices discriminate against protected groups.

While the move could significantly alter federal guidance on employment selection procedures, attorneys caution that it would not eliminate employers’ legal obligations to prevent discrimination, including practices that disproportionately disadvantage certain groups.

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What Is UGESP?

Adopted in 1978 by the EEOC and other federal agencies, UGESP provides guidance on evaluating employment tests, interviews, educational requirements, and other selection methods for potential discriminatory effects. It also outlines methods for validating selection procedures to establish that they are job-related and consistent with business necessity.

Central to the guidelines is the concept of disparate impact discrimination, which occurs when a seemingly neutral employment practice disproportionately disadvantages members of a protected group, even without discriminatory intent. For example, a hiring assessment that disproportionately screens out women or racial minorities could raise disparate impact concerns, even if the employer applies the same test to every applicant.

Unlike intentional discrimination, disparate impact does not require proof that an employer intended to treat applicants differently. The theory is expressly recognized under Title VII of the Civil Rights Act, following amendments enacted in 1991.

HR Q&A: Understanding Disparate Impact vs. Disparate Treatment in Hiring 

What the Proposed Changes Mean for Employers

The EEOC is pursuing the changes through two separate rulemakings, according to Camille Olson, an attorney with Seyfarth in Chicago. One would eliminate interpretive portions of UGESP, while another would address procedural recordkeeping requirements. Olson said the interpretive rescission was undergoing review by the Office of Information and Regulatory Affairs (OIRA), while the separate recordkeeping proposal had not yet been issued.

However, eliminating the guidelines would not eliminate disparate impact liability. “Rescinding UGESP doesn't change an employer’s obligations under Title VII,” she said. “Disparate impact has been written into the statute since 1991, and private plaintiffs can still bring those claims, as can states under their own laws.”

Christy Kiely, an attorney with Seyfarth in Washington, D.C., similarly emphasized that the underlying legal framework would remain intact. “It won’t change much from a litigation perspective — the disparate impact theory of discrimination liability is codified in Title VII; it’s not going away any time soon,” she said. 

The more immediate consequence may be the loss of a longstanding federal framework for evaluating selection practices. UGESP includes the four-fifths rule, a commonly used screening measure that can flag potential adverse impact when one group’s selection rate falls below 80% of another group’s rate. Olson described the guidelines as a federal roadmap that has helped employers analyze selection procedures for nearly five decades. 

AI Hiring Tools Remain Subject to Scrutiny

The changes could also create uncertainty for employers using automated assessments and artificial intelligence in hiring.

Olson stressed that employers would still need to establish that selection procedures producing adverse impact are job-related and consistent with business necessity. “If an assessment or AI screen produces adverse impact, the employer still has to show it is job-related and consistent with business necessity,” she said.

What Employers Sshould Do Now

Even if their formal authority is withdrawn, Kiely expects the guidelines’ influence to persist, at least “until there’s replacement for its authority and guidance.”

Olson advised employers to continue conducting adverse impact analyses, validating assessments against actual job requirements, and documenting their business rationale. She also warned against prematurely abandoning recordkeeping practices. “[D]eleting records invites spoliation claims,” she cautioned.

Ultimately, the proposed rescission may change how federal regulators approach employment selection procedures, but employers will still face potential discrimination claims from private plaintiffs and state enforcement agencies.