require) the decision to keep open competition for the position. But it must be emphasized again that nothing in an affirmative action plan requires the employment of any specific number of women or minorities.

Thus, if the Department can demonstrate that it has taken all recruitment steps required under its affirmative action plan—and even though no (or very few) applications have been received from women and minorities-there would be no requirement that the recruitment period be extended, as in the following example:

C. The Physics Department took all the affirmative recruitment steps called for by the university's affirmative action plan, and advertised the opening for several months. At the end of that time, no women and no minority candidates had applied and the recruitment procedure was concluded.

The Department was justified in ending the recruitment period, inasmuch as it had done everything possible to publicize the opening for a reasonable period of time.

III. JOB REQUIREMENTS MUST BE APPLIED UNIFORMLY TO ALL CANDIDATES WITHOUT REGARD TO RACE, COLOR, SEX, RELIGION, OR NATIONAL ORIGIN

The Guidelines stress the need for standardized employment practices that minimize the opportunity for arbitrary and/or discriminatory hiring decisions. It is not intended that affirmative action should result in a dilution of standards in order to attain the objectives of the Executive Order. Consider the example of the following institution, which violated the Executive Order:

"Because of the small size and location of X University, its History Department had experienced considerable difficulty in recruiting women and minorities for several teaching positions in the past. Consequently, the department chairman, with the support of his faculty and administration, waived the Ph. D. requirement for those women or minorities who wished to apply for the vacant Associate Professor position but retained the requirement for males or non-minorities applying for the same position and for all other positions."

The Executive Order does not require that job requirements be waived or lowered in order to attract women and minority candidates. Indeed, it expressly forbids differential standards based on race, color, sex, religion or national origin. Further, it requires that once valid job requirements are established, they must be applied equally to all candidates. It is discriminatory for such requirements to be applied selectively on the basis of race, color, religion, sex, or national origin. Thus, the history department must either waive the Ph. D. requirement for all applicants (without regard to race or sex) or maintain it for all applicants.

IV.

A JOB REQUIREMENT WHICH RESULTS IN A DISPROPORTIONATE IMPACT UPON MINORITIES AND/OR WOMEN CAN BE MAINTAINED ONLY IF IT IS JOB-RELATED As the Guidelines make very clear (page 4), the Executive Order does not require an institution to eliminate or dilute legitimate employment standards by which to measure prospective employees. On the other hand, no standards or criteria which have, by intent or effect, worked to exclude women and minorities as a class can be utilized, unless the institution can demonstrate the necessity of such standards to the performance of the job in question. For example:

"X Law School has established a Teaching Fellows Program which is responsible for the administration of the law school's clinical practice program. The requirement for Teaching Fellows includes holding a graduate law degree as well as an LL.B. or J.D. Degree. In analyzing its workforce for its affirmative action program, the law school learns that this job requirement disproportionately excludes blacks from consideration for the Teaching Fellows positions."

In order to continue the requirement for a graduate law degree, the law school must demonstrate that the requirement is related to successful job performance. If the law school is able to demonstrate that the skills and knowledge acquired through the advanced law degree are necessary for effective job performance, the job requirement can be maintained. On questions relevant to the validity of the requirement, the opinion or testimony of persons experienced in the conduct of legal aid clinics will be given substantial weight by HEW.

V. A UNIVERSITY IS REQUIRED TO OBTAIN INFORMATION ON THE RACE, SEX, AND ETHNIC IDENTITY OF APPLICANTS FOR EMPLOYMENT

The Executive Order establishes the principle that Federal contractors, including colleges and universities, are required to collect and maintain data on the race, sex and ethnic identity of all applicants for employment.

The collection and analysis of such data is recognized as an essential means of providing both the institution and the Federal Government with the information necessary to monitor the compliance posture of the institution. In the case of universities and colleges, the collection of such data is particularly essential for the workforce analysis required by Revised Order No. 4. Each institution must adopt safeguards to ensure that such information cannot be used as a basis for discrimination.

Preserving the anonymity of applicants in the collection of applicant flow data can be accomplished by gathering the requisite race, sex, and ethnic data separately from the application form. Furthermore, applicants should be instructed not to identify themselves by name or number on this form. If the institution wishes to determine applicant response for a particular position, the data form may be coded by position, as long as it does not individually identify any applicant.

This document is intended to help clarify areas of confusion which have arisen during the implementation of contractor requirements set forth in the Executive Order regulations. This Memorandum should be circulated among all members of your administrative staffs. Experience of the recent past seems to indicate that much of the existing confusion over affirmative action requirements has resulted from an absence of clear lines of communication concerning Federal regulations. It is most important that all officials charged with recruiting and hiring responsibilities have a clear understanding of the Higher Education Guidelines and that they ensure that institutional employment conform to the provisions of those Guidelines.

Additional copies of this Memorandum may be obtained from the Regional Office for Civil Rights in your area, or from the Office for Civil Rights, Department of Health, Education and Welfare, Washington, D.C. 20201. Requests for technical assistance and inquiries relating to development and implementation of affirmative action programs should also be addressed to these Offices. Thank you for your continuing cooperation.

PETER E. HOLMES, Director, Office for Civil Rights.