EEOC Final Rule Would Rescind UGESP Interpretive Guidance
OIRA is reviewing an EEOC final rule that would strip the federal validation roadmap for hiring tests and AI screening tools, while disparate impact liability under Title VII and in several states remains intact.
The EEOC sent to OIRA on October 16, 2026 a final rule (RIN 3046-AB43) withdrawing the interpretive portions of its Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. Part 1607 — the federal roadmap for showing a selection procedure with adverse impact is job-related and consistent with business necessity. The text is not yet public; the EEOC's agenda projects final action in November 2026 and an effective date in January 2027, and current obligations remain until Federal Register publication. Title VII still supplies disparate impact liability, so rescission removes the guidance, not the legal standard. A separate proposal (RIN 3046-AB45) would rescind UGESP recordkeeping and validation documentation; the EEOC's general retention rule survives, and pending EEO-1 rescission would leave state and local collection duties as the main remaining mandate for applicant demographic data. Counsel should inventory which validation studies, vendor bias audits and four-fifths analyses rest on UGESP concepts, and consider directing adverse impact analyses to preserve privilege. Watch OIRA clearance, the Commission vote, and state responses in New Jersey, Illinois and the fourteen state attorneys general that have said disparate impact remains enforceable.