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On March 3, 2004 the Interagency Task Force comprised of the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs, the Department of Justice and the Office of Personnel Management published in the Federal register their proposal concerning the definition of "Applicant" as used in the Uniform Guidelines on Employee Selection Procedures.
The proposal purports to clarify how the Uniform Guidelines should be applied in light of internet and technology based recruiting practices. The proposal was submitted in response to a directive from the Office of Management and Budget to the EEOC in 2000 to furnish further guidance. The proposal itself does not change the Guidelines themselves, but adds five new questions and answers. The full text can be viewed or downloaded at: http://www.yocom-mckee.com/archive.html
The proposal clarifies that the Guidelines do apply to Employers using the Internet and other technology based recruiting. To be an applicant, three basic requirements must be met:
1. the employer has acted to fill a particular position;
2. the individual has followed the employer's standard procedures for submitting applications; and
3. the individual has indicated an interest in the particular position.
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One of the examples is particularly interesting:
Example C: An employer has two large printing plants. The company's employment web page encourages individuals who visit to register to be considered as printers by submitting personal profiles online. Some basic identifying information is required, and one question asks for total years of printing experience.
The employer authorizes the hiring of three new printers at one of the plants. To identify job seekers, Human Resources turns to several resources including its internal database. Even before it identifies those who properly followed the employer's online procedures and who are actually interested in these positions at this time, the employer searches the database to identify job seekers with two years printing experience. The search identifies 120 individuals, of whom only 50 express an interest in the positions and followed all the application procedures. These 50 people are UGESP applicants.
However, the impact of the employer's screen for two years' printing experience can be analyzed using workforce and Census data. For example, the experience requirement could be assessed based on relevant labor force statistics. If a disparate impact on a protected group were shown, then the employer would have to show that two years of experience was job-related and consistent with business
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necessity for its printing positions.
This example appears to let the employer apply a minimal qualification of two years printing experience, and only consider individuals meeting this qualification as applicants. There is no duty to collect race or gender status from those not meeting the two year printing experience qualification. The EEOC or OFCCP could still challenge the legitimacy of this qualification, but if compared to relevant labor force statistics no disparate impact was evident, no further investigation would ensue. If disparate impact was found, the employer would need to show that the qualification was supported by business necessity.
What about the resumes and applications of the individuals not meeting the two years' printing experience? The Questions and Answers is silent concerning any duty to retain these records. Those persons not having two years' printing experience were not considered applicants. As non-applicants there should be no duty to retain those records.
UPDATE:
In the March 29, 2004 Federal Register, the OFCCP published further guidance about how employers must handle Internet applicants for record keeping purposes. This proposal cites four criteria to be considered an "Internet Applicant:"
(Continued on page 4)
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