(a)  To eliminate the overall adverse impact of systemic barriers to the employment of minorities as a protected class, the office of personnel administration shall provide all appointing authorities the necessary flexibility to remedy the effects of systemic discriminatory practices. Supplemental certification does not guarantee employment of protected classes. It guarantees the appointing authority increased opportunities, where possible, to appoint qualified employees from an expanded eligibility list whenever a department can demonstrate that there is statistical underrepresentation based on demographic analysis, otherwise called a “manifest imbalance” elsewhere in this chapter.

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(b)  Wherever a manifest imbalance exists, as substantiated by the appointing authority and certified by the equal opportunity administrator in conjunction with the state personnel administrator, a supplemental certification list of minorities may be called for in addition to the appropriate employment or promotion list, except in the following instances:

(1)  The absence of statistical data or reasonable evidence to show significant past discrimination, patterns of possible discrimination, and/or adverse impact on the protected classes;

(2)  The presence of at least one minority ranked among the three (3) persons standing highest on the list of persons certified by the personnel administrator for the position in question;

(3)  The absence of any minorities on the appropriate eligibility list; or

(4)  Any instance in which the department or agency is subject to a contradictory or inconsistent court order.

(c)  Supplemental certifications based on race or color as a protected class shall be made by an appointing authority whenever:

(1)  The appointing authority shall make requisition to fill one or more positions included in the appointing authority’s affirmative action plan on file with the equal opportunity administrator;

(2)  The equal opportunity administrator has made a written determination substantiating that previous practices of the department and/or of the appointing authority with respect to the filling of the position or positions have discriminated against minorities in contravention of any provision of the Constitution of the United States or the Constitution of Rhode Island, title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e) or any other federal or state statute; and

(3)  Eligible minorities have passed an examination for the classification being recruited and/or other list deemed appropriate by the personnel administrator.

(d)  At least seven (7) days prior to certifying names under this section, the appointing authority shall post a notice of intention to do so in the offices of the personnel administrator and of the equal opportunity administrator, and shall mail a copy of the notice to the applicable union, if any, with instructions to post copies of the notice at all locations where persons whose names may be certified under the provisions of this section may, if employed, be assigned.

(e)  In certifying names for appointment to a classification for which supplemental certification is required, the personnel administrator shall include upon the applicable list the names of six (6) persons certified pursuant to this section.