(a)(1) In investigating an employer’s selection procedures (including those identified below) for adverse impact on the basis of national origin, the Commission will apply the Uniform Guidelines on Employee Selection Procedures (UGESP), 29 CFR part 1607. Employers and other users of selection procedures should refer to the UGESP for guidance on matters, such as adverse impact, validation and recordkeeping requirements for national origin groups.

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(2) Because height or weight requirements tend to exclude individuals on the basis of national origin, 3 the user is expected to evaluate these selection procedures for adverse impact, regardless of whether the total selection process has an adverse impact based on national origin. Therefore, height or weight requirements are identified here, as they are in the UGESP, 4 as exceptions to the “bottom line” concept.

3 See CD 71-1529 (1971), CCH EEOC Decisions ¶ 6231, 3 FEP Cases 952; CD 71-1418 (1971), CCH EEOC Decisions ¶ 6223, 3 FEP Cases 580; CD 74-25 (1973), CCH EEOC Decisions ¶ 6400, 10 FEP Cases 260. Davis v. County of Los Angeles, 566 F. 2d 1334, 1341-42 (9th Cir., 1977) vacated and remanded as moot on other grounds, 440 U.S. 625 (1979). See also, Dothard v. Rawlinson, 433 U.S. 321 (1977).

4 See section 4C(2) of the Uniform Guidelines on Employee Selection Procedures, 29 CFR 1607.4C(2).

(b) The Commission has found that the use of the following selection procedures may be discriminatory on the basis of national origin. Therefore, it will carefully investigate charges involving these selection procedures for both disparate treatment and adverse impact on the basis of national origin. However, the Commission does not consider these to be exceptions to the “bottom line” concept:

(1) Fluency-in-English requirements, such as denying employment opportunities because of an individual’s foreign accent, 5 or inability to communicate well in English. 6

5 See CD AL68-1-155E (1969), CCH EEOC Decisions ¶ 6008, 1 FEP Cases 921.

6 See CD YAU9-048 (1969), CCH EEOC Decisions ¶ 6054, 2 FEP Cases 78.

(2) Training or education requirements which deny employment opportunities to an individual because of his or her foreign training or education, or which require an individual to be foreign trained or educated.