Under certain conditions, a person may be permitted to continue the use of a test which is not at the moment fully supported by the required evidence of validity. If, for example, determination of criterion-related validity in a specific setting is practicable and required but not yet obtained, the use of the test may continue: Provided: (a) The person can cite substantial evidence of validity as described in § 1607.7 (a) and (b); and (b) he has in progress validation procedures which are designed to produce, within a reasonable time the additional data required. It is expected also that the person may have to alter or suspend test cutoff scores so that score ranges broad enough to permit the identification of criterion-related validity will be obtained. $ 1607.10 EMPLOYMENT AGENCIES AND EMPLOYMENT SERVICES (a) An employment service, including private employment agencies, State employment agencies, and the U.S. Training and Employment Service, as defined in section 701(c), shall not make applicant or employee appraisals or referrals based on the results obtained from any psychological test or other selection standard not validated in accordance with these guidelines. (b) An employment agency or service which is requested by an employer or union to devise a testing program is required to follow the standards for test validation as set forth in these guidelines. An employment service is not relieved of its obligation herein because the test user did not request such validation or has requested the use of some lesser standard than is provided in these guidelines. (c) Where an employment agency or service is requested only to administer a testing program which has been elsewhere devised, the employment agency or service shall request evidence of validation, as described in the guidelines in this part, before it administers the testing program and/or makes referral pursuant to the test results. The employment agency must furnish on request such evidence of validation. An employment agency or service will be expected to refuse to administer a test where the employer or union does not supply satis-· factory evidence of validation. Reliance by the test user on the reputation of the test, its author, or the name of the test shall not be deemed sufficient evidence of validity (see § 1607.8(a)). An employment agency or service may administer a testing program where the evidence of validity comports with the standards provided in § 1607.7. § 1607.11 DISPARATE TREATMENT The principle of disparate or unequal treatment must be distinguished from the concepts of test validation. A test or other employee selection standardeven though validated against job performance in accordance with the guidelines in this part-cannot be imposed upon any individual or class protected by title VII where other employees, applicants or members have not been subjected to that standard. Disparate treatment, for example, occurs where members of a minority or sex group have been denied the same employment, promotion, transfer or membership opportunities as have been made available to other employees or applicants. Those employees or applicants who have been denied equal treatment, because of prior discriminatory practices or policies, must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination. Thus, no new test or other employee selection standard can be imposed upon a class of individuals protected by title VII who, but for prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards previously in force. Employers, unions, and employment agencies should provide an opportunity for retesting and reconsideration to earlier "failure" candidates who have availed themselves of more training or experience. In particular, if any applicant or employee during the course of an interview or other employment procedure claims more education or experience, that individual should be retested. § 1607.13 OTHER SELECTION TECHNIQUES Selection techniques other than tests, as defined in § 1607.2, may be improperly used so as to have the effect of discriminating against minority groups. Such techniques include, but are not restricted to, unscored or casual interviews and unscored application forms. Where there are data suggesting employment discrimination, the person may be called upon to present evidence concerning the validity of his unscored procedures as well as of any tests which may be used, the evidence of validity being of the same types referred to in §§ 1607.4 and 1607.5. Data suggesting the possibility of discrimination exist, for example, when there are differential rates of applicant rejection from various minority and nonminority or sex groups for the same job or group of jobs or when there are disproportionate representations of minority and nonminority or sex groups among present employees in different types of jobs. If the person is unable or unwilling to perform such validation studies, he has the option of adjusting employment procedures so as to eliminate the conditions suggestive of employment discrimination. § 1607.14 AFFIRMATIVE ACTION Nothing in these guidelines shall be interpreted as diminishing a person's obligation under both title VII and Executive Order 11246 as amended by Executive Order 11375 to undertake affirmative action to ensure that applicants or employees are treated without regard to race, color, religion, sex, or national origin. Specifically, the use of tests which have been validated pursuant to these guidelines does not relieve employers, unions or employment agencies of their obligations to take positive action in affording employment and training to members of classes protected by title VII. PART 1610-AVAILABILITY OF RECORDS SUBPART A-PRODUCTION OR DISCLOSURE UNDER 5 U.S.C. 552 (A) SUBPART B-PRODUCTION IN RESPONSE TO SUBPENAS OR DEMANDS OF COURTS OR COURTS OR OTHER AUTHORITIES Sec. 1610.30 Purpose and scope. Production prohibited unless Sec. 1610.34 Procedure in the event of a demand for production or disclosure. 1610.36 Procedure in the event of an adverse ruling. Authority: The provisions of this Part 1610 issued under sec. 713 (a), 78 Stat. 265; 42 U.S.C. 2000e-12, 5 U.S.C. 552. Source: The provisions of this Part 1610 appear at 32 F.R. 16261, Nov. 29, 1967 unless otherwise noted. SUBPART A-PRODUCTION OR DISCLOSURE UNDER 5 U.S.C. 552(A) As used in this part: (a) "Act" refers to Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et seq. (b) "Commission" refers to the Equal Employment Opportunity Commission. § 1610.2 STATUTORY REQUIREMENTS 5 U.S.C. 552 (a)(3) requires each Agency, upon request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, to make such records promptly available to any person. 5 U.S.C. 552 (b) exempts specified classes of records from all the public access requirements of 5 U.S.C. 552 and permits them to be withheld. 81610.4 PURPOSE AND SCOPE (a) This subpart contains the regulations of the Equal Employment Oppor- (b) The Attorney General's memorandum on the Public Information Section § 1610.5 PUBLIC REFERENCE FACILITIES AND CURRENT INDEX The Commission will maintain in a public reading area located in the Com- § 1610.7 DELETION OF IDENTIFYING DETAILS When making available any records pursuant to § 1610.5, the Commission will This record is (These records are) made available for public inspection and § 1610.9 REGIONAL OFFICES Each office listed below will maintain in a public reading room or area. various Federal Office Building, Room 7515, 500 Gold Street SW., Albuquerque, N. Mex. 1776 Peachtree Street NW., Room 417, Atlanta, Ga. 30309. Telephone No.: Area 300 East Eighth Street, Room G 115, Austin, Tex. 78701. Telephone No.: Area U.S. Courthouse and Federal Building, Room 1832, 219 South Dearborn Street, Engineers' Building, Room 402, 1365 Ontario Street, Cleveland, Ohio 44113. 911 Walnut Street, Room 305, Kansas City, Mo. 64106. Telephone No.: Area Code Federal Office Building, Room 7730, 300 North Los Angeles Street, Los Angeles, Calif. 90012. Telephone No. : Area Code 213, 688-3400. Masonic Temple Building, 333 St. Charles Avenue, New Orleans, La. 70130. Telephone No.: Area Code 504, 527-2721. 346 Broadway, Suite 701, New York, N.Y. 10013. Telephone No.: Area Code, 264-3642. Appraisers' Building, Room 126, 630 Sansome Street, San Francisco, Calif. 94111. Telephone No.: Area Code 415, 556-0260. 1016 16th Street NW., Room 104, Washington, D.C. 20036. Telephone No.: Area Code 202, 382–1914. § 1610.11 REQUESTS FOR IDENTIFIABLE RECORDS AND COPIES (a) A request for inspection or copying of a record of the Commission which is neither published in the FEDERAL REGISTER nor customarily made available and which is not available in the public reading area as described in § 1610.5, may be made in person or by mail to the Office of the General Counsel, 1800 G Street NW., Washington, D.C. 20506. Requests may be presented from 9 a.m. to 5:30 p.m., Mondays through Fridays, with the exception of holidays. Telephone inquiries or requests may be made by calling Washington, D.C., telephone number: Area Code 202, 342–7693. Collect calls will not be accepted. (b) Charges for processing requests will be made in accordance with the schedule set forth in § 1610.17. Such charges are payable in advance. (c) Each request shall contain a description of the record requested which is sufficiently specific with respect to names, dates, subject matter, and location, to permit the record to be identified and located. A separate request must be submitted for each record requested. (d) Except where circumstances require special processing, requests will be processed in the order in which they are received. Efforts will be made to make such records available as promptly as is reasonable under the particular circumstances. (e) No obligation is undertaken by the Commission to compile or creat information or records not already in existence at the time of the request. (f) Where a requested record cannot be located from the information submitted or is known to have been destroyed or otherwise disposed of, the person making the request will be appropriately notified. (g) When a requested record has been identified and is available, the person who made the request will be notified as to where and when the record will be available for inspection. Upon payment of the necessary fees, a copy of an available record may be furnished to the requester in person or by mail. § 1610.13 RECORDS OF OTHER AGENCIES Request for records that originated in another Agency and are in the custody of the Commission, will be referred to that Agency for processing, and the person submitting the request shall be so notified. The decision made by that Agency with respect to such records will be honored by the Commission. § 1610.16 USER CHARGES, WAIVER It is the policy of the Equal Employment Opportunity Commission to cooperate with charging parties, their counsel, and private agencies working to eliminate employment discrimination. To the extent practicable that policy will be applied under this part so as to permit requests for inspection or copies of records and information to be met without cost to the charging party, attorney, or group making the request. Fees will be charged, however, in the case of requests which are determined by the General Counsel to involve a burden on staff or facilities significantly in excess of that normally accepted by the agency in handling routine requests for information. While the fees charged for services and copying will in no event exceed those as specified in § 1610.17, the Commission reserves the right to limit the number of copies that will be provided of any document or to require that special arangements for copying be made in the case of records or requests presenting unusual problems of reproduction or handling. [36 F.R. 20600, Oct. 27, 1971] § 1610.17 SCHEDULE OF FEES AND METHOD OF PAYMENT FOR SERVICES RENDERED (a) Except as provided for in § 1610.16 the following specific fees shall be applicable with respect to services rendered to members of the public under this subpart: (1) Searching for records, per hour or fraction thereof____ $3.60 (2) Other facilitative services and index assistance minimum charge.. (3) Copies made by Xerox or otherwise (per page). 3.60 0.05 (4) Certification of each record as a true copy- (5) Certification of each record as a true copy, under the seal of the agency (6) For each signed statement of negative result of search for record--- 1.00 (b) When no specific fee has been established for a service, e.g., legal or research assistance, or the request for a service does not fall under one of the above categories due to the amount, size, or type thereof, the Director of Administration is authorized to establish an appropriate fee pursuant to the criteria established in Bureau of the Budget Circular No. A-25, entitled "User Charges." (c) When a request for identifiable records is made by mail, it should be accompanied by remittance of the total fee chargeable, as well as a self-addressed stamped envelope, if special mail services are desired. (d) Fees must be paid in full prior to issuance of requested copies of records. If uncertainty as to the existence of a record, or as to the number of sheets to be copied or certified precludes remitting the exact fee chargeable with the request, the agency will inform the interested party of the exact amount required. (e) Payment shall be in the form of a check, bank draft, money order. Remittances shall be made payable to the order of the Equal Employment Opportunity Commission. (f) A receipt for fees paid will be given only upon request. Refund of fees paid for services actually rendered will not be made. (g) No charge will be made for services performed at the request of other governmental agencies or officers thereof, acting in their official capacities. [36 F.R. 20600, Oct. 27, 1971] (a) 5 U.S.C. 552 exempts from all of its publication and disclosure requirements nine categories of records which are described in subsection (b). These categories include such matters as national defense and foreign policy information, investigatory files, internal procedures and communications, materials exempted from disclosure by other statutes, information given in confidence, and matters involving personal privacy. The scope of the exemptions is discussed in the Attorney General's memorandum referred to in § 1610.4 (b). (b) Section 706(a) of the Act provides that the Commission shall not make public charges which have been filed. It also provides that (subsequent to the filing of a charge, an investigation, and a finding that there is reasonable cause to believe that the charge is true) nothing said or done during and as a part of the Commission's endeavors to eliminate any alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion may be made public by the Commission without the written consent of the parties; nor may it be used as evidence in a subsequent proceeding. Any officer or employee of the Commission, who shall make public in any manner whatever any information in violation of section 706(a) shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned not more than 1 year. (c) Section 709 of the Act authorizes the Commission to conduct investigations of charges filed under section 706, engage in cooperative efforts with State and local agencies charged with the administration of State fair employment prac tices laws, and issue regulations concerning reports and recordkeeping. Subsection (e) of section 709 provides that it shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under section 709 prior to the institution of any proceeding under the Act involving such information. Any officer or employee of the Commission who shall make public in any |