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EEOC and OFCCP Guidance on Defining a Job Applicant in the Internet Age: SIOPs Response

Doug Reynolds, Chair
Professional Practice Committee

In March of 2004, both the OFCCP and the EEOC (in conjunction with the Office of Personnel Management and the Departments of Labor and Justice) released separate draft guidance documents pertaining to how employers should define what a job applicant is when the recruiting and hiring process is managed through electronic media. Comments were invited from the public on each of these documents. 

SIOP quickly assembled an ad hoc committee to review and comment upon the governments proposals. Members of the ad hoc committee were chosen from industry, consulting, and academic arenas and included Jennifer Burnett, Michael Campion, Monica Hemingway, Michelle Jayne, Nathan Mondragon, Mort McPhail, Paul Sackett, and Evan Sinar. Doug Reynolds served as chair of the group and integrator/editor of the comments (and he very much appreciated all of the insightful input and timely reviews provided by the committee members!). Two sets of comments were provided to the issuing agencies in May of 2004 with Fritz Drasgows signature. 

The substance of each of SIOPs responses is provided below, with minor editing to reduce redundancy between them. Each is preceded by an abbreviated summary of the agencys proposed guidance. It is recommended that interested readers download the full text of each document from the issuing agencys Web site at the URLs provided.

Additional Questions and Answers From the EEOC

EEOC, serving as the lead agency in an interagency task force, released their guidance in the form of Additional Questions and Answers (Qs & As) to the Uniform Guidelines on Employee Selection Procedures (UGESP). Specifically, the document proposes new Qs & As (numbers 9498) to follow the existing 93 that had been previously issued. The purpose of the document is to provide guidance on how to interpret the Uniform Guidelines as they relate to the Internet and related technologies. A highly abbreviated summary of their guidance is provided below, and the full text is available at http://edocket.access.gpo.gov/2004/04-4090.htm.

Q94: Do federal employment nondiscrimination laws apply to employers and other UGESP-covered entities when they use the Internet and related electronic data processing technologies for recruitment and selection? Answer: Yes.

Q95: Is Internet recruitment, like traditional recruitment, exempt from UGESP requirements? Answer: Yes.

Q96: For recordkeeping purposes, what is meant by the term applicant in the context of the Internet and related electronic data processing technologies? Answer: In order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred: 

(1) The employer has acted to fill a particular position;
(2) The individual has followed the employers standard procedures for submitting applications; and
(3) The individual has indicated an interest in the particular position.

Q97: Are all the search criteria that employers use subject to disparate impact analysis? Answer: Yes.

Q98: Are employment tests, including those administered online, subject to UGESP? Answer: Yes.

The document provides substantial elaboration on each of the answers to these questions and includes three examples for how individuals within a database may or may not be classified as applicants depending upon the structure of the employers recruiting and hiring process. In Example A, a recruiter identifies recruits by searching a database for individuals interested in a particular location (they are not applicants). In Example B, recruits complete a detailed questionnaire about a specific job on an employers Web site (they are applicants). In Example C, recruits complete a general questionnaire that is later searched for people with a specific qualification; these individuals are then asked about their interest for a specific position (only the interested recruits are applicants but the search criteria are subject to disparate impact analysis).

In addition, the document provides an estimate of the recordkeeping burden on employers due to the clarifications provided by the new Qs & As. It is concluded that this burden is reduced due to increased computerization of records and the added clarity provided by the new guidance.

SIOPs Comments:1 

1 Note that some comments pertain to text that is not summarized from the original sources. 

The UGESP agencies [collectively the EEOC, OFCCP, OPM, and DOJ] are commended for recognizing and addressing the impact that the Internet and related electronic technologies have had on the practice of employment recruitment and selection. The deployment of these technologies is an important advancement toward fair and open access to employment opportunities for all segments of our labor market. The UGESP agencies have prepared guidance that establishes a link between existing fair employment guidelines and new tools and practices that have rapidly changed the way employment is obtained. Although these Additional Questions and Answers provide an important foundation for this much-needed guidance, there is still a need for further clarification to ensure that organizations can adequately understand how to comply with the guidelines, execute fair practices, and collect accurate and representative data, while at the same time minimizing their recordkeeping burden. Thus, there are several areas in need of further clarification, elaboration, and/or definition:

1. The role of basic qualifications requires further elaboration. The current definition of an applicant provided in Q96 does not reference job qualifications, even at the most basic level, as a condition for being considered an applicant. In contrast, the search criteria discussed in Q97 describe the use of a basic qualification (i.e., 2 years of printing experience) when building an applicant pool from a larger database of recruits. These responses together suggest that an employer-imposed basic requirement may only be acceptable (assuming it is job related and consistent with business necessity) when it is imposed prior to applicant indication of interest in a specific position. Otherwise, employers are required to keep records on all individuals who express interest, regardless of how well those individuals meet the most basic job requirements. 

A preferable definition of applicant would explicitly describe a proper role for basic qualifications as a condition for employer responsibility for recordkeeping. Inclusion of this component within the definition would drive more consistency in the application of the proposed guidance. The definition should specify that only those individuals who meet the basic qualifications for the position must be tracked as applicants. These criteria should be identified and defined based on position requirements (e.g., as by a job analysis) or business necessity constraints. 

The current definition appears to require employers to include individuals in applicant flow statistics that do not meet even the most basic essential criteria and who, realistically, do not merit consideration for the specific position in question. In contrast, the OFCCPs recently released proposed rule (41 CFR part 60-1), does incorporate language referencing basic qualifications as a component of the definition of an Internet Applicant.

2. The description of search criteria, as described under Q97 should be refined and elaborated or the section should be dropped. There are several aspects of this section that may generate confusion. First, by providing an example [Example C] that uses a basic qualification specification as a search criterion, the guidance document confuses the appropriate justification of basic standards with the practice of searching a database to find potential recruits. Clearly stated guidance on both issues is critical. As noted in Example A (Q96), recruiters may use criteria such as a stated interest in working in a particular location to identify recruits. Although clearly not a basic qualification, this criterion would be subject to disparate impact analysis under the current wording of Q97.

Second, the phrase all the search criteria does not indicate whether all the criteria should be evaluated for disparate impact as a set or separately for each search criterion. Rarely would a recruiter assemble a set of potential recruits based on a single search as suggested in Example C; more typically, recruiters will search multiple databases and Web sites, using search conventions that may be specific to each source. Under this scenario, is the resulting pool of potential recruits (i.e., the group generated by the full set of searches) subject to disparate impact analysis in comparison to the available workforce and census data, or is each and every individual search criterion subject to the analysis? Requiring disparate impact analysis for each search criterion would be an impossible hurdle for most recruiters to overcome. If the requirement for disparate impact analysis on search criteria is retained in the final version, we recommend refocusing the requirement on the representativeness of the ultimate pool of recruits rather than on the search criteria used to generate the pool. 

Third, consistent with the requirement that all search criteria are subject to disparate impact analysis is the presumed requirement to track and store all criteria that have been used to generate a pool of potential recruits. If this requirement is intended by the guidance document, it should be stated as such and included in the recordkeeping requirement estimate. 

Fourth, the answer to Q97 suggests that the employer must now examine the existence of each qualification (or other characteristic that is used in the search) in the relevant workforce to determine if it has disparate impact. This extends the requirements for employers as documented in the UGESP and is a greater burden on the employer than only comparing the effects of selection requirements to the applicant flow. If this requirement is intentional, additional guidance should be provided regarding how employers are to meaningfully define the relevant workforce for comparison and regarding how they should use workforce and census data to evaluate the potential disparate impact for the myriad database search rules that may be constructed. Again, the additional time required to estimate the potential disparate impact of all search criteria should be included in the recordkeeping requirement estimate.

3. The differences between the Additional Questions and Answers and the OFCCPs Proposed Rule should be reconciled. The OFCCPs definition of an Internet applicant differs from the EEOC definition. It is unclear why two different definitions are necessary. For employers who are federal contractors, this situation is confusing and adds an additional layer of complexity to the recordkeeping requirements. A single definition is preferred that incorporates language requiring basic qualifications from applicants.

4. The status of Internet recruiting activities under UGESP is unclear as discussed throughout the guidance document. For example, the discussion of the third prong under Q96 recognizes that recruiters may search third-party resume banks to identify potential recruits, and that those recruits do not become UGESP applicants unless all of the three prongs are satisfied. However, employers are cautioned that the search criteria they use are subject to disparate impact analysis (Q97). This guidance appears contradictory when compared to the response to Q95 and UGESP (Section 2. c) that recognize that recruiting procedures may be designed to attract or identify members of a particular race, sex or ethnic group and are exempt from UGESP requirements. Further clarification of the status of searches conducted for recruitment purposes is requested.

5. Several concepts are introduced that require additional definition or elaboration. The employers role in the interpretation of the Questions and Answers, in the context of their own labor market and selection process features, is critical to preserve. However, without further definition, significant confusion will remain regarding the range of activities and practices that trigger the various aspects of the definition of an applicant. These concepts, and issues associated with each, are described in more detail below.

Specific position. The concept of a specific position is central to the proposed definition of an applicant. The response to Q96 focuses clearly on the situation where the employer announces a specific position and the requirements for becoming an applicant for that position. This presupposes that the organization announces specific positions. Often this is not the case; consider the following two examples.

Example 1: A firm collects resumes, through the companys Web site, from graduates of MBA programs who are interested in Human Resource positions. After interviewing, the firm decides some are well suited for generalist positions in remote plants and others are well suited for specialist positions at corporate headquarters. Are all the individuals who express generic interest in being considered for HR positions considered to be applicants?

Example 2: A firm needs three people to perform nine major tasks in the marketing area. Tasks arent configured into positions until individuals are interviewed. The firm concludes that, based on their skills and experience, a specific set of three candidates can jointly cover the tasks (Person A will do 1, 2 and 6; Person B will do 3, 7, and 8; Person C will do 4, 5, and 9). Who qualifies as an applicant for these positions?

Additional guidance is required to cover situations where a specific position may not be the focus of the primary recruiting effort.

Indication of interest. Several examples are provided for how a recruit may indicate an interest in a position; however, no specific definition of this act is provided. From the criteria used in the provided examples, any person who follows the employers process for submitting applications, especially when the process is specific to a particular position, may be considered as having indicated an interest. Several other scenarios are provided (e.g., placing job listings in a shopping cart) that are not sufficient to represent an indication of interest and, thus, do not trigger status as an applicant. In the absence of a process that mirrors the examples, employers will be left to prepare their own definition and may create circumstances whereby indication of interest is placed beyond screening and selection techniques. The guidance document should address more directly the issue of what constitutes an expression of interest in a position.

What constitutes an application? The document suggests that recruits submit applications as a definitional step toward classification as an applicant. In practice, there are often steps in the selection process that may occur prior to completion of an application that could screen out job seekers before they get to the application stage. Without a definition of application as it relates to the second prong, employers may create procedures where very few recruits are able to submit applications (as defined by the employer).

Example 3: A company presents job seekers with a series of questions about their educational and work history, preferences, and willingness/ability to perform certain critical elements of the job. Those whose responses meet or exceed the basic qualifications for the position are asked to complete an application form. Who are the applicants?

What constitutes an act to fill a position? The elaboration of the first prong of the definition (Example A under Q96) suggests that the employer acted to fill the position when they culled from a database 200 recruits who met the basic criterion of available to work in the New York area. Clearly other acts may be also envisioned that may trigger this prong of the definition (e.g., posting a specific position, choosing interviewees, extending an offer). Again, significant variation exists in how employers deploy these processes, and additional guidance on this criterion will help employers comply. 

6. Traditional and Internet-based recruiting and selection processes should both be discussed in the document. Most organizations use both Internet and traditional paper processes depending on the job being filled. The document addresses the definition of an applicant obtained through the Internet. However, many of the issues raised also apply to traditional paper processes. For example, organizations frequently receive unsolicited paper resumes from individuals seeking general employment in a particular area such as engineering or marketing. It is unclear if the guidance provided in this document can also be applied to traditional, paper-based processes. Clarification of this point is necessary to avoid confusion and the potential burden on employers to maintain different applicant definitions. One set of guidelines applying to both Internet-based and paper-based processes is preferred.

7. The recordkeeping requirements are underestimated. Throughout our comments we have indicated where the new guidance may increase the time spent on recordkeeping. To the extent that these guidelines are intended (or interpreted) to require employers to (a) track the search criteria they use to build a recruiting pool or select from that pool, (b) investigate the potential disparate impact of those search criteria (individually or for their aggregate effect), or (c) maintain separate definitions of who to track based on their use of technology-based recruitment and selection avenues, the resources devoted to recordkeeping will increase. Failure to recognize these factors in the estimation of the recordkeeping burden will lead to grossly inaccurate conclusions and may lead employers to believe this important issue was examined in a superficial manner. These oversights should be reconciled to increase the acceptance of the new level of burden.

A New Proposed Rule from the OFCCP

The OFCCP also independently offered its own definition of an applicant in the context of a rule regarding the collection of race and gender data for OFCCP enforcement purposes. The purpose of the proposed rule is to help clarify the recordkeeping requirements for federal contractors in the context of the Internet and related recruiting and selection technologies. Again, a highly abbreviated summary of the OFCCPs proposed rule is provided below and the full text is available at http://www.dol.gov/esa/regs/fedreg/proposed/nprm_frn.htm.

The OFCCP rule draws a specific distinction between Internet applicants and other applicants, and records must be retained for both types of applicants. Under the rule, an Internet applicant is an individual who:

(i.) Submits an expression of interest in employment through the Internet or related electronic data technologies;
(ii.) The employer considers for employment in a particular open position;
(iii.) Through the expression of interest, indicates that she or he possesses the advertised, basic qualifications for the position; and,
(iv.) Does not indicate that he or she is no longer interested in employment in the position for which the employer has considered the individual.

The definition includes reference to advertised, basic qualifications, and these are further defined as meeting three criteria: (a) they must not involve comparison of qualifications between applicants (e.g., 2 years of related experience is noncomparative; more experience than other applicants is comparative); (b) they must be objective and; (c) they must be job related. The full text version of the proposed rule provides examples of each of these criteria.

Other features of the proposed rule include the requirement for contractors to retain records of all submissions of interest through the Internet or related electronic technologies and the continued reliance on labor force statistics or other relevant data for the evaluation of recruitment processes that occur prior to the collection of gender, race, and ethnicity data. A recordkeeping burden estimate is also provided.

SIOPs Comments:

The Internet and related electronic technologies have had a dramatic impact on the practice of employment recruitment and selection, and the deployment of these technologies is an important advancement toward fair and open access to employment opportunities for all segments of our labor market. The OFCCP is commended for addressing this impact and for recognizing that an individuals ability to meet job-related criteria is critical to determining who is considered a viable applicant for a position in the context of Internet-based recruiting and selection. 

Although the Proposed Rule provides for much needed guidance that extends beyond the recently issued Additional Questions and Answers to the Uniform Guidelines on Employee Selection Procedures, there is still a need for further refinement of the guidance to ensure that federal contractors can adequately understand how to comply with their obligations, execute fair practices, and collect accurate and representative data, while at the same time minimizing their recordkeeping burden. There are several areas where we have concerns; these are itemized below.

1. The differences between the OFCCPs Proposed Rule and the Additional Questions and Answers should be reconciled. [See Comment 3 to the EEOC above.] There are several points of departure between these documents; the most problematic of these differences are highlighted throughout our comments. By offering guidance that conflicts with the Additional Questions and Answers, the OFCCP has created a situation that appears to require contractors to maintain two sets of applicant records because it is possible for an individual to be defined as an applicant under one set of guidance and not under the other. A single definition is preferred that incorporates language requiring applicants to meet basic qualifications for a specific position; at a minimum the Proposed Rule should describe how the two sets of guidance should be interpreted together. 

2. The concept of submission of interest should be narrowed to reflect stated interest in a particular job. The many techniques that have proliferated for Internet-based recruitment allow for a range of actions to be considered a submission of interest. For example, placing a job title into a shopping cart, posting a resume on a career Web site dedicated to jobs within specific industries, having an automated resume agent populate a job profile on a companys career site, and even clicking into a job opportunity description could all be considered expressions of interest.

Because the proposed rule requires contractors to retain records of all submissions of interest obtained through the Internet or related electronic technologies, regardless of status as an applicant, further specification of the range of actions that trigger this requirement is essential. We recommend that a submission of interest include a reference to a particular job. This change would increase the consistency with the Additional Questions and Answers and would allow the awkward fourth criterion of the proposed rule to be eliminated (see OFCCP Comment 6 below).

3. Examples should be provided of employer actions that constitute consideration and those that do not. Just as job seekers have many options for exploring information about jobs on the Internet, employers have many new tools at their disposal for identifying potential recruits. The status of activities such as searching an external database of resumes or querying an internal database of recruit profiles should be discussed in the context of the Proposed Rule. The status of these search activities should be recognized as a recruiting activity and not a selection decision. Here again, alignment with the language proposed within the Additional Questions and Answers, where electronic search results do not constitute an applicant pool, would aid interpretation and purposeful compliance. 

4. Remove the term advertised from the description of basic qualifications. This qualifier adds complexity to the criterion and may not fit the manner by which many employers recruit prospective employees. For example, an employer may formally advertise only a subset of basic qualifications common to a certain job family or range of positions (e.g., a college degree in one or more related fields, a willingness to relocate or travel, and a willingness to work in a particular location). Once a specific position opening occurs, additional criteria may be applied (e.g., experience with a certain technology) and the database may be searched to identify individuals who possess these criteria. These criteria likely will not be advertised beyond communication of the position description to individuals identified in the database to inform them of the position opening and to determine if they are interested in further consideration. We recommend removing the term advertised and replacing it with established or stated basic qualifications to eliminate this potential source of confusion.

5. A broader set of examples of what constitutes a basic qualification should be provided. Currently, the document provides examples of basic qualifications that focus on educational and experience requirements. Although these commonly deployed requirements provide a good basis for demonstrating noncomparative and objective standards, they do not provide adequate guidance regarding the range of requirements that may be used as basic qualifications. 

Employers use many types of requirements in recruitment screening. Qualification requirements often include certain conditions of employment that an individual must meet to be considered for a position. Examples include a willingness to work in a specific geographic location, a willingness to travel a certain percentage of time, and a willingness to work certain days or shifts. Internet-based profiling tools allow for the collection of a range of job-relevant qualifications that may be objectively scored and used in a noncomparative decision rule, and it is assumed that a broad range of qualifications requirements are acceptable under the proposed rule. A more diverse set of examples will provide employers with needed guidance on the range of acceptable basic qualifications.

6. Criterion 4 should be worded affirmatively and combined with the first criterion. The current wording of Criterion 4 (the job seeker does not indicate that he or she is no longer interested in the position) is problematic for two reasons. First, because it is not directly parallel to the applicant definition provided by the Additional Questions and Answers, it creates confusion regarding how to classify recruits under the two sets of guidance. Second, as stated the criterion may be interpreted to mean that when recruits have not indicated an interest or a lack of interest in a specific position, they are presumed to have interest in the positioneven if no such statement of interest was solicited or offered. To address these two concerns, we recommend adopting the language applied within the Additional Questions and Answers (the individual has indicated an interest in a specific position) as the first criterion.

7. Eliminate the distinction between traditional and Internet applicants. Most organizations use both Internet and traditional (paper-based) processes in their recruiting activities. Maintaining a distinction between applicants based on their choice of a communication and submission vehicle adds tremendous complexity to the employers recordkeeping burden. Furthermore, the distinction is already antiquated in the context of modern job search and recruiting. How is an employer to consider a recruit that views an online job announcement, sends an e-mail to a recruiter to request more information, sends a paper cover letter and resume through the mail, and sends follow-up communication through e-mail? If the same candidate also then completes an on-line profile, should they be considered as both a traditional and as an Internet applicant? Making multiple submissions of interest though alternative channels is a common practice among job seekers. We strongly recommend that a revised Rule provide only one definition of an applicant that applies regardless of how they submit their statement of interest to the organization.

8. The recordkeeping requirements are underestimated. The Proposed Rule suggests or implies that contractors are obligated to: (a) track applicants according to criteria that differ from those proposed by UGSEP agencies within the Additional Questions and Answers, (b) track traditional applicants according to different criteria than Internet applicants, and (c) retain records of all submissions of interest received through the Internet (noting the definitional problems discussed under Comment 2 above). Each of these is a new area of obligation for contractors and will require the devotion of organizational resources to comply.We recommend that the revised Rule eliminate the differences associated with obligations a (see [OFCCP] Comment 1) and b (see Comment 7), and the oversight of the additional burden associated with issue c should be reconciled in the estimation of the recordkeeping cost.

9. Provide additional procedural guidance. Several sections of the document suggest that employers should take action or perform analysis as a regular aspect of their recruiting and selection operations. Employer understanding and compliance would be greatly enhanced if each of the areas listed below were elaborated with examples of acceptable practice.

How should contractors establish the job relatedness of basic qualifications? Techniques ranging from large-scale job analysis to straightforward rational explanations have been used to tie basic qualifications to business goals. Examples of acceptable approaches would help contractors understand how this important step should be conducted.

How and when should contractors collect race and gender data from applicants? It is clear that contractors have an obligation to collect race and gender data from individuals defined as Internet applicants; however, the document provides no guidance on when these data are to be collected. Nor is any guidance provided on the methods for their collection. It is our recommendation that race and gender data be collected only during the selection steps that follow the classification of a recruit as an applicant (i.e., after all four of the criteria have been met) through the administration of a voluntary questionnaire or a similar measure. 

What other relevant data may be used when conducting availability analyses? The document suggests that the 2000 U.S. Census is among the most current and discrete data available. However, for many positions and in many labor markets these data are too general to provide a match to specific jobs, especially when those jobs are highly skilled or unique. Examples of other appropriate data (e.g., local labor research, association membership) would help contractors understand the range of information they may include in these analyses.

Next Steps
Presumably, the draft documents will be evaluated in light of the input received during the open comment period. The comments received by the EEOC may be viewed by the public at their office in Washington DC. Often, comments are place on agency Web sites also; however, as of this writing they had not been posted.

If you have questions, comments, or would like to volunteer to provide comments on the next guidance document provided by the government, please contact Doug Reynolds at Doug.Reynolds@DDIWorld.com.

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