United States: EEOC Proposes Guidelines For Clarifying The Meaning Of A Job "Applicant"

By Rich Hafets (Baltimore) and Roxane Sokolove Marenberg (Washington, D.C.,)

• How Did This Come About?
• Who is an Applicant in the Age of the Internet?
• What are Employers' Obligations in the Age of the Internet?

On Thursday, March 4, 2004, the Equal Employment Opportunity Commission (EEOC), U.S. Department of Labor's (DOL) Office of Federal Contract Compliance Programs, the U.S. Department of Justice (DOJ), and the Office of Personnel Management (OPM), proposed guidelines for clarifying the meaning of a job "applicant" The new guidelines are a result of the thousands of unsolicited resumes received by employers and recruiters via the Internet and related electronic data-processing technology¹ from job seekers posting resumes on line, notwithstanding the absence of specific job openings.²

The guidelines state that the core of being an applicant is asking to be hired to do a particular job for a specific employer. An individual can only accurately assess her interest in an employment opportunity of which she is aware.

The UGESP, issued in 1978 by the EEOC, DOL, DOJ, and OPM, were designed to ensure that employers' hiring practices did not disparately harm any protected group. The procedures describe the evidence employers should have available to analyze whether their employment selection procedures have a disparate impact on protected groups of individuals. Employment selection procedures have a disparate impact when an employer uses a practice or standard, like a hiring or promotion requirement or an employment test, that has a statistically significant disproportionate negative effect on a protected group, even though the standard or test is not intentionally discriminatory.

A 1979 guidance in question-and-answer format defined "applicant" - as a term dependent upon the user's recruitment and selection procedures. It stated, "The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities."

But the Internet era, in which job seekers are "freely and Casually" posting resumes in resume banks, on-line job boards, personal Web sites, and employment Web pages, has created new issues for employers.

In the late 1990s, employers expanded their use of the Internet and related electronic data-processing technologies to recruit job applicants. Individuals also began using the Internet to explore employment opportunities and generally assess the global job market independent of applying for a specific job. Via the Internet, individuals now are able to submit their resumes or post personal profiles for numbers of jobs simultaneously. As a result, employers' human resource departments and recruiters are often inundated with resumes.

In trying to deal with this vast inflow, employers have expressed concern over their applicant record-keeping obligations under the UGESP. In 2000, looking for a solution to help employers while protecting against discrimination in employers' hiring practices, OMB instructed the EEOC to address the use of the Internet by employers to fill jobs and to assess its effect on employers' record-keeping obligations under the UGESP. The proposal was spawned by employers' difficulties in defining the nature of an applicant in this new era.

In order for the individual who uses the Internet and related electronic data processing technologies to be an "applicant"

• The employer must act to fill a particular position;

• The individual seeking the position must follow the employer's standard procedures for submitting an application; and

• The individual seeking the position must indicate an interest in being hired for a particular position with a specific employer.

Thus, individuals who post resumes "in third-party resume banks or on personal Web sites" are not "applicants" for purposes of the UGESP.

In order for employers to protect themselves when posting or advertising via the Internet:

• The posting should clearly state it is only seeking "applicants" with specific qualifications for a clearly identified position within a designated time frame;

• The posting should include a specific deadline for submitting applications;

• Employers should avoid providing a general "on- line resume database";

• The specific job posting must contain nondiscriminatory language, and any listed criteria must be job related and consistent with business necessity;

• If an unsolicited resume or personal profile is received, it should be returned to the individual indicating the absence of a specific job opening;

• If providing on-line tests of specific or general skills, the tests must be related to the position being filled, must be consistent with business necessity, and the test results must be maintained;

• Employers are responsible for their recruiters' postings, just as they are responsible for their own postings;

• Employers remain obligated to "maintain and have available for inspection records or other information 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..." 29 C.F.R. § 1607; and

• Employers' traditional recruitment and selection techniques remain subject to the existing record- keeping standards.

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