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Years of Waiting Produce Little Guidance for Employers on Definition of Applicant

For decades employers with federal contracts and resulting affirmative action obligations have been required to monitor their hiring practices to prevent discrimination against minority and female applicants. To fulfill this obligation, covered contractors are required to ascertain and record the race and sex of every applicant. Consequently, who is an "applicant," a determination that greatly affects a contractor's recordkeeping burden of the race, sex, and subsequent treatment of the applicant, becomes a critical inquiry. Is an applicant anybody who shows interest in a position, a determination which could result in an enormous recordkeeping burden, particularly with on-line applications? Or, is "applicant" status limited to only those individuals who show interest and have the minimum job qualifications, a determination which usually would result in a significantly lower number?

Although the Office of Federal Contract Compliance Programs requires federal contractors to follow the definition of applicant set forth by the Equal Employment Opportunity Commission, employers have had to struggle with their own interpretation of that definition. After years of anticipation by the federal contractor community, in the Federal Register for the week of March 1, the EEOC published a long-awaited proposed interagency guidance on the definition of "applicant." The proposed guidance is open for a 60-day "notice and comment" period, during which interested parties may submit comments directly to the EEOC.

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 just the kind of guidance federal contractors have needed. However, the proposed definition is greatly disappointing because it fails to address many of the issues vexing contractors (e.g., can minimum qualifications be considered, to what lengths must a contractor go to obtain race and sex data from applicants, for how long must a contractor keep the resumes of those who show interest but do not meet the technical definition of applicant). Even worse, the proposed guidance only addresses those who apply using the Internet or related technologies.

By way of background, in 1980 the OFCCP adopted the EEOC's Uniform Guidelines on Employee Selection Procedures (UGESP), as well as two sets of Questions and Answers (Qs&As) subsequently promulgated to clarify portions of the UGESP, including the somewhat cryptic treatment of the definition of "applicant." Among them, Question 15 explains:

the precise definition of "applicant" depends upon the user's recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, of other employment opportunities.

As noted above, the UGESP requires each covered contractor to identify applicants, determine their race and sex, and perform an adverse impact analysis to ascertain whether the employer's hiring practices have a disproportionately negative impact upon minorities and females. Thus, determining who is considered a "UGESP applicant" is critical for federal contractors to comply with OFCCP mandates.

Contractors expected the EEOC's guidance to address a whole host of questions that have developed over the years about who is an applicant. Instead, the guidance proposes and answers only five new questions and only with regard to the treatment of applicants who apply or who are tracked electronically, i.e., through the Internet. These proposed new Qs&As (numbers 94, 95, 96, 97 & 98) would follow the existing 93 questions and are as follows:

1. (94) Q: Do federal employment nondiscrimination laws apply to employers and other UGESP-covered entitles when they use the Internet and related electronic data processing technologies for recruitment and selection? Answer: Yes.
2. (95) Q: Is Internet recruitment (in contrast to selection procedures), like traditional recruitment, exempt from UGESP requirements? Answer: Yes.
3. (96) Q: For recordkeeping purposes, what is meant by the term "applicant" in the context of the internet and related electronic data processing technologies? Answer: See below.
4. (97) Q: Are all the search criteria that employers use subject to disparate impact analysis? Answer: Yes.
5. (98) Q: Are employment tests, including those administered online, subject to UGESP? Answer: Yes.

Questions 94, 95 and 98 are answered "yes" with relatively little new comment. Questions 96 and 97, however, are answered in somewhat greater detail.

The answer to Question 96 (i.e., "what is an applicant in the context of the internet and related electronic data processing technologies?") closely tracks existing Q&A 15. It provides that someone becomes an "applicant" when the following criteria have been satisfied:

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 have to be satisfied. The proposed guidance provides factual explanations for the above criteria, but they are not particularly instructive. 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 data base. If 100 individuals respond "affirmatively" and timely to the employer's inquiry, all 100 are considered under the UGESP to be applicants, not just the 25 who ultimately are interviewed. Thus, whether the employer has "acted" appears to depend on whether and how the individuals have responded.

The EEOC explains that the second criteria, that the applicant has followed the employer's standard procedures, 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," or responding to an employer's email inquiry about the candidate's interest in a job within a particular deadline. Thus, if the proposed guidance is approved in its current form, it will be crucial for contractors to be very specific about application procedures to be able to 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. Consequently, according to examples given by the EEOC, posting resumes in "third party resume banks," expressing interest in a whole category of positions in response to an employer's solicitation, or barraging an employer with numerous resumes through an on-line "shopping cart" do not satisfy the third prong. To satisfy the criteria, the employer first would have to act to contact the person, second, solicit their interest, and third, monitor whether the application procedures for that particular position were followed. On the other hand, where an individual sifts through numerous positions, chooses one, and complies with the procedural pre-requisites for that position, he or she becomes a UGESP applicant for that position. Thus, if the proposed guidance is approved in its current form, contractors will have to implement a system for tracking who responds to a particular job and if they responded properly.

The EEOC's examples only deal with internet or electronic applicants. By focusing on whether an individual has shown an interest in a particular position and complied with the employer's prerequisites for application, the EEOC has not provided any new instruction. For example, it remains unclear whether an individual with only a high school education who completes all the prerequisites for "applying" for a specific electrical engineering position is an UGESP applicant. In other words, the EEOC's definition appears to deal purely with the procedural issues of who is an applicant and completely avoids the substantive issue of whether an applicant who lacks the minimum qualifications nonetheless would be considered an "applicant."

The EEOC's answer to Question 97, which addresses how employers should treat the results of resume database searches, indicates that all search criteria are subject to disparate impact analysis. However, the question of who is an "applicant" for disparate impact analysis purposes depends on whether the individual "pulled up" in the search subsequently expresses interest when contacted about the position and then "applies" correctly. In other words, using the EEOC's example, if a database search produces 120 encouraging resumes, the 50 individuals who express interest in the position when contacted by the employer and subsequently properly follow all the employers' specific application procedures are UGESP "applicants" for disparate impact purposes. Thus, if the proposed guidance is approved, contractors will need to ensure that they are tracking individuals obtained from a database search and who subsequently become applicants because they show interest in a particular position when asked.

In conclusion, none of this is new. The EEOC's proposed guidance seeks to formalize what we have known all along. If someone follows company rules for applying for a specific position (regardless of the method of application), he or she is considered an applicant. The guidance does not answer such critical questions as whether minimum qualifications matter, how to fulfill the obligation to ascertain race and sex from "applicants," and whether and how long to keep electronic (or paper) resumes of non-applicants.

The Jackson Lewis Affirmative Action Practice Group is available to assist you with any questions about the proposed Guidance and its impact on your applicant flow tracking procedures. Our attorneys are available to assist in analyzing current programs or designing new programs that comply with OFCCP mandates and other considerations. Please contact the Jackson Lewis attorney with whom you regularly work, or the firm's Affirmative Action Practice Group.