Resources to Identify Non-discriminatory Apprentice Selection Procedures
The revisions to the Office of Apprenticeship's (OA) EEO regulations that went into effect on January 18, 2017, provide significantly greater flexibility to apprenticeship sponsors registered with OA to decide how to select apprentices into their programs. The previous rule had required the sponsor to use one of four rigid selection procedures, each of which included its own detailed set of requirements for compliance. By contrast, the rule now allows sponsors to use any method to select apprentices so long as that method is consistent with the general non-discrimination obligations that have long applied to sponsors.
This page presents some resources to help sponsors as they develop or evaluate their selection procedures:
A selection procedure is any measure, combination of measures, or procedure used as a basis for a hiring, promotion, or similar decision in apprenticeship. Selection procedures include the full range of assessment techniques from traditional paper and pencil tests, performance tests, training programs, or probationary periods and physical, educational, and work experience requirements through informal or casual interviews and unscored application forms. (29 CFR § 30.2.)
- Sponsors that used non-discriminatory selection procedures before the rule change went into effect may continue to do so afterward; no change is required.
- Sponsors may use one or more selection procedures, as long as they are uniformly and consistently applied to those applicants within each procedure and are otherwise non-discriminatory.
- If a sponsor finds that a selection procedure or period is not effective, sponsors are permitted and encouraged to implement a different selection procedure(s) or extend or reopen selection periods.
- Selection procedures must be "facially neutral" in terms of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and disability. In other words, they must not explicitly discriminate against a protected group by their terms. For example, "must be a high school graduate" is facially neutral.
A selection procedure (or other employment practice) has a "disparate impact" if it adversely affects one group of people of a protected characteristic more than another, even though the procedure (or practice) is neutral in form.
- Also, a selection procedure or device must not have a disparate impact on women or any racial or ethnic group unless it is related to apprentices' performance in the apprenticeship program; it is consistent with business necessity; and no alternative procedure that has less of a disparate impact but also serves the sponsor's needs for selecting apprentices who are likely to be successful in the program is available.
To illustrate -- a selection requirement that an apprentice electrician be able to lift 75 pounds may screen out women more than men. That doesn't mean a sponsor may not use it; it can be used, but it has to be related to apprentice electricians' performance and consistent with business necessity, and no alternative requirement that serves the same purpose with less of a disparate impact can be available. For example, the sponsor should consider whether electricians really need to lift 75 pounds with any frequency; requiring the ability to lift only 50 pounds is an alternative that serves the same purpose but may have less of a disparate impact. If lifting a 75-pound item is required to do the job, the sponsor should consider whether current apprentices and journey-level electricians sometimes lift it together, or use some kind of a lifting aid; if so, a lifting-ability requirement may not be necessary to performance of the job.
- Similarly, a selection procedure or criterion must not screen out or tend to screen out an individual or individuals with a disability, on the basis of disability, unless the selection criterion is related to apprentices' performance in the apprenticeship program and is consistent with business necessity.
- Skills requirements, including strength and/or physical abilities tests or standards that are used to screen and/or rank apprenticeship candidates, have sometimes excluded women or other groups of applicants, either by design or by effect. An example is a job qualification of being able to lift 75 pounds. Subjective interviews have also had this effect. Sponsors should take care to ensure that such selection devices do not have a disparate impact and, if they do, that they are clearly related to job performance.
Examples of Permitted Principles
Sponsors may use any of the selection devices listed below (and any other), so long as the devices are not intended to result in, and do not result in, unlawful discrimination.
- First-come, first-served (of eligible applicants)
- Selection from pool of eligible applicants on the basis of the rank order of their scores on one or more qualification standards
- Random selection from pool of eligible applicants
- Selection from pool of current employees
- Direct entry into apprenticeship program (without having to follow the usual selection procedures) (see below)
Important Note: The selection procedures in the above list are not the only ones that are permitted. Sponsors may use any selection procedure of their choosing, as long as it is not discriminatory.
Direct-Entry Selection Procedures
- In general, sponsors may allow "direct entry" into their programs - that is, entry without going through the usual selection procedures -- for candidates from specified training programs or who can demonstrate certain qualifications.
- In fact, sponsors are encouraged to allow direct entry for graduates of pre-apprenticeship programs that adhere to the quality framework described in ETA's Training and Employment Notice No. 13-12, "Defining a Quality Pre-Apprenticeship Program and Related Tools and Resources" (November 30, 2012).
- Another example of permitted use of direct entry is for veterans whose military occupational specialties qualify them for the apprenticeship occupation, or for Job Corps graduates whose training, similarly, qualifies them for the apprenticeship occupation.
- Direct entry from a training program that is targeted toward a specific underrepresented group in order to address underutilization is also permitted. Like any other selection procedure, direct entry from such a program must be approved by the Registration Agency.
- To avoid underutilization of one racial minority or ethnic group that results from a single-employer sponsor drawing its apprenticeship pool entirely from a direct-entry program that is specifically designed to target another racial minority or ethnic group, the direct-entry mechanism should be used in concert with other selection mechanisms to result in a less homogenous apprenticeship pool.
The exact language of the relevant Apprenticeship EEO regulation:
29 CFR § 30.10 Selection of apprentices.
(a) A sponsor's procedures for selection of apprentices must be included in the written plan for Standards of Apprenticeship submitted to and approved by the Registration Agency, as required under § 29.5 of this title.
(b) Sponsors may utilize any method or combination of methods for selection of apprentices, provided that the selection method(s) used meets the following requirements:
- The use of the selection procedure(s) must comply with the Uniform Guidelines on Employee Selection Procedures (UGESP)..., including the requirements to evaluate the impact of the selection procedure on race, sex, and ethnic groups (Hispanic or Latino/nonHispanic or Latino) and to demonstrate job-relatedness and business necessity for those procedures that result in adverse impact in accordance with the requirements of UGESP.
- The selection procedure(s) must be uniformly and consistently applied to all applicants and apprentices within each selection procedure utilized.
- The selection procedure(s) must comply with title I of the ADA and EEOC's implementing regulations at part 1630. This procedure(s) must not screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test or other selection criteria, as used by the program sponsor, is shown to be job-related for the position in question and is consistent with business necessity.
- The selection procedure(s) must be facially neutral in terms of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and disability.
- Uniform Guidelines on Employee Selection Procedures (UGESP)
- EEOC's Guidance on UGESP, "Employment Tests and Selection Procedures"