As you may already know, in early March of 2004 the U.S. Equal Employment Opportunity Commission (EEOC), in conjunction with the Departments of Labor (DOL) and Justice and the Office of Personnel Management, announced a proposed set of recordkeeping provisions concerning who is a job applicant in the context of the Internet and related technologies. Following a period of time for public comment, these provisions are likely to be used by the EEOC, as well as others (for example, the DOL), in challenging companies’ hiring practices. In this article, I will very briefly summarize these proposed recordkeeping provisions, explain what the fuss is all about, and offer some suggestions for companies to avoid problems when these provisions are put in place. Summary of Proposed Recordkeeping Provisions The essence of these provisions is that:
In order for an individual to be considered an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred:
- the employer has acted to fill a particular position;
- the individual has followed the employer’s standard procedures for submitting applications; and
- the individual has indicated an interest in the particular position.
Several examples are provided to help clarify these standards, or “prongs.” In explaining the first two points, the provisions describe a company that searches an applicant database in order to fill two vacancies. Based on this search and a follow-up inquiry by the employer, 100 of the applicants respond with interest in position, but only 25 are interviewed. According to the provisions, those 100 people who responded in a timely way would be considered applicants, not just the 25 who were interviewed. On the other hand, the provisions indicate that certain individuals will not count as applicants under the three “prongs” listed above. For example, individuals who merely post their resume in a third-party resume bank or on a personal website do not count as applicants. If, however, the employer contacted these individuals and offered them the opportunity to apply, those candidates who followed the application process are likely to be counted as applicants. At this point, you might be wondering what the fuss is all about here. Will it really matter who is called an “applicant” and who is not? Before your read the three major reasons why companies and recruiters should be concerned about these provisions, it is important to understand that employers covered under Title VII of the Civil Rights Act and Executive Order 11246 are subject to the Uniform Guidelines on Employee Selection Procedures (the “Uniform Guidelines”) and therefore have an obligation to “maintain and have available for inspection records…which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group…” In turn, if the selection process has a disproportionate effect on a protected group, the organization would need to demonstrate that the selection procedure is job-related and consistent with business necessity. So then, what is all the fuss about? 1. Companies must gather too much information. One concern that has been raised is that the provisions will require far too much tracking of applicants. Because of the need to maintain records for race, sex, and ethnicity of applicants, more financial resources may be required on the part of companies to comply with these requirements. I predict that the greatest burden will be on companies that continue to use informal, un-standardized, Internet-based recruitment systems (e.g., where the company permits applicants to simply email their resumes to a company representative). A direct implication is that an applicant tracking system that gathers race, sex, and ethnicity for each candidate might be recommended for use by every company covered by these rules for each job opening that uses the Internet or related technologies. 2. The definition is too broad. A second concern is that the definition of an applicant is overly encompassing. Specifically, employer groups, such as the Society for Human Resource Management (SHRM), would have preferred a definition that would have precluded clearly unqualified candidates from being counted as applicants. In other words, some have argued for a fourth prong, which would require one to have to meet the minimum qualifications for the position in order to be considered a candidate. That the provisions do not require someone to meet even the most basic job requirements in order to be counted as an applicant means that the door is wide open for legal challenges. I believe that this will be particularly risky for companies in the Internet age. The advent of the Internet means that job testers, or people who act as job candidates with the intention of determining whether there is discrimination, will be able to apply for jobs anywhere in the country, and as long as they meet the three prongs described earlier, they might count as applicants. Second, the use of electronic systems means that many of the hiring criteria, whether they are job-related or not, will be documented electronically. This information can then be obtained by the plaintiff’s experts, reviewed for job relatedness, and attacked if they are not clearly job related. 3. The standard for job relatedness may be set too high. A third concern is that these provisions put into effect rules that heretofore may not have been quite so obvious to recruiters and managers. To understand this concern, let’s look at one of the examples provided by the EEOC. In this example, the provisions describe a situation where a search is conducted and two years of printing experience is one of the job criteria for hiring. According to the provisions, if disparate impact against a protected group were demonstrated, then the company would need “to show that two years of printing experience was job-related and consistent with business necessity for its printing positions.” Now, this position is not a new one; rather, the need to demonstrate that a selection tool is “job-related and consistent with business necessity” is taken directly from the Civil Rights Act of 1991. What is particularly noteworthy, however, is that there is no one single, universally accepted method for demonstrating the job relatedness and business necessity of minimum qualifications (MQs). Thus, there may be considerable debate as to precisely how a company must demonstrate the job relatedness and business necessity of an MQ. A closely related question is how high the bar should be set for proving job relatedness. The immediate implication is that at the very least, companies must pay much greater attention to all job requirements and selection criteria that they use to ensure that they are properly documented and as clearly job related as possible. Likewise, these provisions clearly state that any tests that are administered online are subject to the Uniform Guidelines. What this means is that any online tests (e.g., personality, aptitude, and so forth) will need to be properly validated if a legal challenge is mounted and disparate impact is determined to exist. Some Suggestions According to the EEOC, there are approximately 865,962 companies that are covered by these provisions. Chances are that you work for one of those companies. I suggest that the following advice should be carefully considered:
Note: I would like to thank Lisa Harpe (of Peopleclick Research Institute) for her thoughts regarding this topic.