A few months ago I wrote an article discussing the long awaited definition of a “job applicant” put forth by the government agencies charged with the thankless task of helping to create THE legal standard for all of us in the hiring profession to follow. This article generated a lot of good discussion and since then, there have been several other great articles on the subject, as well as some great discussions about this subject on the ERE discussion boards. I have been keeping up with all the articles and discussions I can find on this topic, and I can honestly say it is starting to get a bit confusing. In order to help us all better understand what is currently happening, I feel it is important to identify some of the major points of confusion that seem to be arising. I do not pretend to have all the answers here. The main purpose of my article is to try and identify some of the issues so that we can all be more aware of what is going on and what we need to be thinking about in terms of ensuring compliance. For those of you haven’t read the government’s definition (http://edocket.access.gpo.gov/2004/04-4090.htm) or the articles that it has generated, here is a quick summary: The U.S. Equal Employment Opportunity Commission, the Department of Labor, the Department of Justice, and the Office of Personnel Management recently collaborated to provide a standard that provides the following: 1. A basic definition of an applicant: “An applicant is ‘a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities.'” 2. Criteria for defining exactly how someone becomes an applicant:
- The employer must have acted to fill a particular position.
- The individual in question must have followed the employer’s standard procedures for submitting applications.
- The individual in question must have indicated interest in a particular position.
3. A clear understanding of an employer’s legal responsibility when it comes to ensuring the job relatedness of screening or assessing applicants: “All search criteria used are subject to disparate impact analysis… If disparate impact is shown, the employer must demonstrate its criteria are job-related and consistent with business necessity for the job in question.” While these guidelines are certainly appreciated, they have generated much continued confusion and debate. Much of this confusion centers around the four issues that I discuss at length below. In reality, all of these points are somewhat inter-related but I have done my best to separate them as much as possible. Issue 1. Collecting Information The issue: When and from whom should information be collected? This discussion thread has arisen out of the fact that the EEOC standards have always required, and will continue to require, a good deal of record keeping. We know that the current process requires separate, optional information to be collected during the application process and that this information must be stored and reviewed separately from other information used to make hiring decisions. Once you begin changing the definition of who an applicant is and when a person becomes an applicant, a grey area is created around when this optional information should be collected. The impact: I believe the exact impact of this issue is still unclear and depends upon the hiring process of each individual organization. For instance, while it seems apparent that the new guidelines will require increased record keeping, their exact impact on individual hiring processes will vary. In my mind, the bottom line is that organizations need to be sure that the collection of EEOC information matches the exact point at which they are deeming someone to be an applicant. The new rules say that as soon as someone expresses interest in a job req that is officially open using the proper channels they are an applicant. So, it stands to reason that the EEOC data collection form should be collected as soon as these three criteria are met. This makes sense, as it would be impossible for a passive candidate who does not even know they are being considered for an opening (e.g. someone fished from a database) to complete the EEOC form. This issue is pretty straightforward and easy for most of us to deal with. A second problem here involves response rates for optional EEOC information. Since this information is optional, organizations are not ever able to get a look at the full picture in terms of the demographics of its applicant pool. The less you are able to know about this, the harder it will be to ensure that you are being compliant. It stands to reason that organizations will want to try to obtain as high of a response rate as possible among applicants. The good news is that most organizations report that response rates for optional information are relatively high (say around 70%). If rates are much lower then this, your organization may want look at the way the optional questionnaire is introduced during the hiring process. Perhaps you need to better explain its importance and the benefits of taking the time to complete it. Another problem with reporting relates to the issue of minimum qualifications. Since the new guidelines do not specifically address minimum qualifications, it is possible for someone to satisfy all of the three elements of the new definition to be considered an applicant even if that individual is not qualified for the job. While there are many other ramifications related to minimum qualifications (some of which are discussed later in this article), one of the major impacts of the minimum qualifications problem is its direct impact on record keeping. For instance, under the current definition, all individuals who apply for a job, qualified or not, must be counted as applicants and their data analyzed along with that of qualified applicants. This opens the door for contamination of the real picture because reported numbers may not reflect people who would actually be considered for the job. This may increase the possibility that disparate impact may be identified ó even if, in reality, none exists. So the use of minimum qualifications can leave even the most vigilant organizations wondering how to handle their use as part of the hiring process. Issue 2. What Does “Qualified” Really Mean? The issue: How do we define who is qualified and who is not? What will this mean in terms of defining an applicant? While they do many things, the new government guidelines set no real standards for determining minimum qualifications. As it stands now, anyone is considered an applicant if they satisfy the major criteria defined by the government. While it seems easy enough to suggest that organizations deal with this problem by establishing a set of minimum qualifications for each job and documenting each individual applicant’s ability to meet these qualifications, in reality this approach may cause serious problems. The impact: This could cause serious problems for organizations, especially if the powers that be don’t help provide some direction on the issue. Most organizations are not up to the challenge of consistently establishing a set of minimum qualifications that will pass the scrutiny of those involved in regulation. Why do I say this? Because organizations must be able to clearly demonstrate that these qualifications are job related. This is essentially the same issue organizations face when creating qualifications screening questions used to remove applicants from the applicant pool during the initial phases of the hiring process. We have seen time and again the failure of organizations to base these questions on firmly documented job requirements. Can we really trust that the minimum qualifications set for each and every job are completely objective and job related? To add fuel to the fire, defining qualifications may ultimately require some arbitrary lines to be created. For instance, if you set a qualification that states an MBA and three to five years experience are required, what about those with MBAs and two-and-a-half years experience? Can we really feel comfortable saying these folks aren’t qualified? Furthermore, there are no real standards regarding how much job experience is required to perform certain job requirements. Where do we draw the line here? Little nitpicky things like this can end up being huge issues once we start defining who is an applicant based on minimum qualifications. The above issue is exacerbated by the fact that if an organization does choose to set minimum qualifications for a job and use them for screening the government requires that this screening process must be subject to disparate impact analysis. This means that using these qualifications will require additional record keeping. This is a problem, because this requirement actually contradicts the purpose of setting the new applicant definition in the first place. The whole reason the government created its latest definition of an applicant is to help organizations deal with changes in the application process that have been brought about by technology by supposedly easing record-keeping burdens associated with Internet job applications. Minimum qualification screening record-keeping requirements also mean that organizations who choose to use these minimum qualifications to determine who is and is not an applicant will create yet another way that the legality of their hiring processes can be attacked. In light of the above concerns about the subjective nature of minimum qualifications, the idea of using them to help define who is and is not an applicant can be pretty scary stuff. Issue 3. What About The OFCCP (Office of Federal Contract Compliance Programs)? The issue: The OFCCP has proposed its own applicant definition. I don’t want to get into summarizing the OFCCP’s definition of an applicant. If you are interested in learning more about it, I recommend that you see Dr. Michael Harris’s recent ERE article on this subject for more information. Suffice it to say that, in the interest of keeping us all completely confused, this definition is of course different than the one provided by the EEOC. Its existence is making all of this applicant definition stuff even more complicated. The impact: It depends! First of all, it’s important to understand that this definition is currently in the proposal stage and is not yet a mandate. When and if it does become official, and if it retains its current form, the impact of this definition will vary greatly for individual organizations. It makes sense that organizations that are subject to OFCCP regulations will be among those who should pay the most attention. However, I am sure that many organizations are bound by both the OFCCP and the EEOC. In such situations it may be more difficult to remain compliant, especially if the definitions take a different tack on key issues such as defining who is and who is not an applicant. One of the biggest impacts that this will have will be that organizations subject to both definitions will have to be very careful to be sure they are applying the right definition in the right circumstance and to ensure that proper records are kept in each situation. While this may seem a serious burden, as always, ignorance of the law is no excuse. This means that organizations will be wholly responsible for ensuring compliance. It is hard to know exactly how to handle this issue. Will there really be situations in which an organization must comply with both definitions at the same time for the same applicant pool? If so, which set of standards must be followed? I am not able to comment on this until we learn more. For now, my advice is that all of us follow what is going on very closely and that each individual organization begin to understand what part of their hiring falls under OFCCP regulations. Issue 4. How does all this influence the independent recruiter? The issue: Independent and contract recruiters are wondering about the impact of all this on their record-keeping responsibilities. Specifically, many are upset about the fact that they may have to begin collecting sensitive information early in the process, before asking an applicant to submit a formal application. The issue then becomes, does engagement by an independent recruiter followed by informal interest in a job make someone an applicant? If so, does this mean that the recruiter must collect optional EEOC information from the candidate? The impact: The rules seem to suggest that independent recruiters have the same responsibility as in-house recruiters, and that this responsibility involves them ensuring that all candidates go through a standard process in order to officially apply to the organization. Once the candidate goes through this process and has met all three of the criteria stated in the EEOC definition, it seems that they are an applicant. So, if the recruiter is discussing the job with them but the person has not formally expressed interest via proper channels, they are not an applicant and no data need be collected. Still, the issue of who does the record keeping remains. In my eyes, while it is critical for recruiters to keep their own records, there is no way they can be expected to collect EEOC optional data until the candidate has formally applied for the job. Usually, the EEOC form is part of this formal application process. So it seems that there may not be any formal requirements for recruiters to keep official records as long as the organization has collected this data as part of the formal application process. Of course, while it may be a good idea for recruiters to collect and maintain their own data just to be on the safe side, recruiters often do most of their work verbally. This makes it difficult for them to gather any of the type of data required by the EEOC. I am not a recruiter, but I can guess that asking a candidate about their race or age during an initial phone discussion is not something that many recruiters out there are doing or want to do for that matter. So my opinion is that recruiters should be sure that they understand the line between a formal application and an informal discussion and know when to make sure a candidate should apply formally as part of the process of being recruited. Feel free to correct me if you feel I am mistaken in my opinions on this issue. What To Do? While there is still a tremendous amount of gray area related to this issue, I there are some simple steps that organizations can take to help ensure that they are doing the right thing. Here are a few recommendations that I have that may help firms ensure compliance:
- Use a combination of technology and common sense. ATS technology can help with record keeping and reporting, but it is only as smart as you make it. You have to properly configure the technology in order to ensure it works for you.
- Document requirements for all jobs and anchor all selection processes to them. This should guide all selection activities no matter what. At the end of the day the legal defensibility of any selection practice boils down to its job relatedness. If you do one thing to ensure compliance do the work to ensure that all screening questions, minimum qualifications, interview questions and assessments are directly related to job performance requirements.
- Keep good records. You are eventually going to need them.
- Work to ensure high response rate on the optional EEOC form. Be sure to explain the importance of this form to applicants and try to position completing it as an important applicant responsibility.
- Build in fairness and objectivity. Take a stand to ensure that all of your hiring practices are non-discriminatory.
- Recruit for diversity. The best way to ensure that minorities are well represented in your applicant pool and within the ranks of your organization is to ensure that your recruiting efforts are reaching members of protected classes and that you demonstrate to these individuals that your organization values diversity.
- Pay attention to what is going on with these issues. There is still a lot of ambiguity, but unfortunately ignorance of the law is no excuse. Stay informed.
In the end, it all boils down to having an attitude that serves to promote fairness in all situations.