The Elusive Applicant: Mitigate Legal Risks by Defining the Term

For more than two decades, employers have been collecting data on applicants for employment and guessing at what an applicant is ó guessing because the law does not clearly define an “applicant.” Now, with the dramatic rise of Internet-based recruiting, and emails submitting unsolicited resumes, the challenge of defining an applicant has become more complicated. Unfortunately for employers, the need for a clear definition of applicant is also urgent. An employer’s hiring practices, policies, or procedures may be challenged as discriminatory by the Equal Employment Opportunity Commission (“EEOC”), the Office of Federal Contract Compliance Programs (“OFCCP”), the Department of Justice, or even an applicant who does not get hired. When that happens, the employer’s applicant data can be critical to the employer’s ability to successfully defend itself. Fortunately, there is more than one practical solution. While the best solution would be for the OFCCP and EEOC to establish a clear, reasonable definition, don’t hold your breath. On March 31, 2003, a task force led by these two agencies missed yet another deadline for defining applicant. So while our tax dollars grind away in Washington, employers should take this bull by the horns ó by adopting clear hiring policies and procedures, clearly defining “applicants,” and consistently following those policies and procedures. “Applicant” may appear to be a simple term, but its definition in the context of employment law is far from clear. For years, the EEOC, the OFCCP and the courts have used vague and varying definitions of applicant. Government guidance avoids defining applicant by stating that the definition “depends” upon certain circumstances (a classic lawyerly non-answer). Instead, Question and Answer 15 describes “the concept of an applicant” in extremely broad terms, as a person “who has indicated an interest in being considered,” which interest might be expressed orally. This suggests that anyone who expresses interest in a position could be considered an applicant, “depending upon the employer’s practice.” Thus, defining applicant has essentially been left to the discretion of each employer. To the extent that the employer’s own application process is not clearly defined, the courts have found that a person who has somehow expressed some interest in a job opening is an “applicant.” On the other hand, courts have limited the definition of “applicant” in situations where (for example) the employer has clearly defined its own application process as requiring applicants to complete certain paperwork, such as a specific job application form, or to meet certain minimal qualifications, such as minimum education or experience. Employers are subject to significant fines and penalties if their hiring practices are successfully challenged as discriminatory and illegal. These hiring practices may be challenged by applicants or the government on the theory that they have an “adverse impact” on minorities or women. Individual applicants may also claim unlawful discrimination for failure to hire, under state and federal discrimination statutes. The penalties for violating applicable federal employment laws can include back pay, reinstatement, attorneys’ fees, and debarment from bidding on government contracts. Clearly, then, it is critical that employers have consistent hiring procedures and maintain sufficient records of their applicants in order to defend against these kinds of discrimination claims. Each employer should define its own hiring practices and procedures, define “applicant” for itself, maintain the requisite records, and understand the data that it has maintained, in order to minimize the risks of legal exposure from a discriminatory hiring practice and/or maintaining too few, too many or inadequate records. Tracking applicant data is becoming increasingly burdensome with the increased use of Internet-based recruiting. Many people send resumes to employers regardless of whether the employer has a job opening. Is an employer required to retain data on all of these “applicants,” and if the race or gender of an applicant is not indicated on a resume, is it an employer’s responsibility to elicit this information from them? Thus, the increased use of the Internet in recruiting and hiring presents practical, financial, and legal challenges for employers. From both a practical and a legal perspective, until a new definition is proposed, and in order to avoid adverse legal action, employers should define applicant for themselves. This should include defining criteria and procedures for determining whether someone is an applicant. In this regard, courts are likely to show some deference to clear and explicit policies that are consistently followed. More than two years ago, the Office of Management and Budget directed the EEOC and OFCCP to create a clear definition of applicant. However, a resolution has yet to be proposed. The taskforce has been granted several extensions over the past couple of years, and missed the most recent deadline of March 31, 2003. So, while we wait for a clear definition of applicant, employers must continue to attempt to define applicant for themselves, relying on the vague definition offered by the OFCCP and EEOC, the limited guidance offered by the courts, and common sense.