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For decades employers with federal contracts and resulting affirmative action obligations and reporting requirements have been required to monitor their hiring practices to prevent discrimination against minority applicants. To fulfill this obligation, covered employers are required to track the race, gender and ethnicity of each applicant. Thus, the question of "who is a job applicant" has caused much confusion among employers and counsel for decades. Compound this dilemma with the Internet explosion of the late 1990s, and you have a particularly vexing problem for employers to manage record-keeping responsibilities.

By way of background, in July, 2000, the Equal Employment Opportunity Commission ("EEOC"), along with the Department of Labor, Office of Federal Contract Compliance Program ("OFCCP"), the Department of Justice and the Office of Personnel Management, began to consider whether the 1978 Uniform Guidelines On Employees Selection Procedures ("UGESP"), as well as their supplemental 1979 and 1980 guidances, needed further clarification in light of the Internet boom.

According to the 1979 UGESP clarification, federal agencies defined "applicant" broadly as "a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities." This sweeping definition perplexed employers for many years.

Although the OFCCP requires federal contractors to follow the definition provided by the EEOC, employers have, for years, struggled to find their own practical, manageable definitions of “applicant.” After years of anticipation and differing interpretations, the EEOC finally published a long-awaited proposed interagency Guidelines that clarifies the definition of "applicant."

The title, "Adoption of Additional Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines of Employee Selection Procedures as They Relate to the Internet and Related Technologies," promises the type of guidance employers have needed. However, some employers have found the proposed definition disappointing because it leaves many questions unanswered (e.g., can minimum qualifications be considered, to what lengths must an employer go to obtain race and sex data from applicants, for how long must employers retain resumes of those who show interest, but do not meet the technical definition of an applicant). Perhaps most disappointing to employers, the proposed Guidelines only address those who apply using the Internet or related technologies. The Internet and related electronic technologies include email; various websites such as third-party job or resume banks; employment web pages; electronic scanning technology; applicant tracking systems; and internal databases of job seekers. 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 employer's standard procedures for submitting applications; and
  3. The individual has indicated an interest in the particular position.

All three criteria must be satisfied. To explain the first criteria, the EEOC poses an example of an employer with New-York based openings. The employer has "acted" when it identifies and contacts 200 individuals in the New York area from a resume database. If 100 individuals respond affirmatively and timely, all 100 are considered under the UGESP to be applicants, not just the 25 who interviewed. Thus, whether the employer has "acted" depends on how the individuals respond.

The EEOC explains that the second criteria may be satisfied by the applicant taking such actions as "completing on-line personal profiles," using "an electronic kiosk or "contacting a store manager about a sales position." It is crucial for employers to be very specific about application procedures that control who is considered an applicant.

Finally, the EEOC's description of what satisfies the third criteria focuses on whether the individual "showed interest" in a particular job with a particular employer. According to the examples given by the EEOC, posting resumes in "third party resume banks," expressing interest in a whole category of positions or bombarding an employer with numerous resumes through an on-line application form does not satisfy the third criteria. To satisfy this prong, the employer first would have to contact the person, solicit their interest, and finally, monitor whether the application procedures were followed.

The EEOC offers several recruitment examples on its website, but again, the examples only deal with internet or electronic applicants. The EEOC has tried to address some employer concerns in its Guidelines. One concern is, if the employer uses both traditional and Internet/electronic recruitment and selection methods. In such a situation, the EEOC advises that the employer adhere to the new guidelines for Internet/electronic recruiting; however, the employer should adhere to the old guidelines for the traditional portions of their applicant search.

In conclusion, the EEOC's proposed Guidelines formalize what employers have known all along. If someone follows company rules for applying for a particular position, then that someone is considered an applicant. Be mindful that the Guideline does not answer such integral questions as whether minimum qualifications matter, how to fulfill the obligation to ascertain demographic information from applicants, and whether and how long to keep electronic or paper resumes of non-applicants.

The EEOC invited written public comments on the proposal this past spring and is currently examining the comments received. We expect the EEOC will finalize its position later this summer and we will advise you of their final recordkeeping Guidelines in our next newsletter. In the meantime, click here to read more about the proposed Guidelines on the EEOC’s website.

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