Section 389-8-5 - AFFIRMATIVE ACTIONA. Authority and Purpose The Director of Human Resources shall have authority to take any available and appropriate form of affirmative action when making a certification from a class register. The purpose of this affirmative action shall be to assure that members of particular groups who are underutilized, underrepresented or adversely affected by selection procedures, but who have qualified for placement on a class register, shall be included with the pool of persons from which the selection is made.
B. Basis for Affirmative Action Such authority may be exercised when:
1. Statistical disparities between the work force representation and the labor market representation of groups historically excluded from or limited in employment due to sex, handicap or minority status are identified and documented; or2. Analysis of testing procedures for placement on a class register documents an adverse effect on a particular group identified by sex, handicap, age, national origin or minority status.C. Procedure 1. Requests by Appointing Authority: When an agency's request to fill a vacancy indicates an underutilization or underrepresentation, the Director of Human Resources shall make an affirmative action certification, subject to the following conditions:
(a) If the normal certification procedure includes members of groups so affected, an affirmative action certification will not be made.(b) If the normal certification procedure does not include members of the group so affected, the normal certification will be supplemented to include a member of this group whenever such person is available on the class register used.(c) In no instance will an affirmative action certification exclude any person who would be certified normally. Members of groups which are underrepresented or underutilized shall be added to the normal certification in accordance with their qualifying score.(d) Affirmative action certification shall be consistent with the type of certification requested or made, regardless of underutilization or underrepresentation.(e) Approval may be contingent upon presentation of evidence of underutilization or underrepresentation in a format prescribed by the Director of Human Resources.2. Adverse Impact of Testing Procedure: When there is sufficient evidence that a selection procedure has an adverse impact on a particular group identifiable by sex, age, handicap, minority status or national origin, the Director of Human Resources shall make an affirmative action certification, subject to the following conditions:
(a) If the normal certification procedure includes members of the groups so affected, an affirmative action certification will not be made.(b) If the normal certification procedure does not include members of the group so affected, the normal certification will be supplemented to include a member of this group whenever such person is available from the class register used.(c) In no instance will an affirmative action certification exclude any person who would be certified normally. Members of groups which are adversely affected by testing procedures shall be added to the normal certification in accordance with their qualifying score.(d) Affirmative action certification shall be consistent with the type of certification requested or made.(e) Evidence of adverse impact shall be provided by statistical analysis of the testing procedure followed.(f) An affirmative action certification will not be made to address adverse impact if the testing procedure has been validated.3. Authority Reserved: The Director of Human Resources reserves the right to make an affirmative action certification independently whenever this action is deemed to be in the best interest of State service.
In addition, where agency hiring practices show a pattern of adverse impact, the Director may take any available affirmative action to ensure non-discriminatory treatment of persons referred for appointment.
18- 389 C.M.R. ch. 8, § 5