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Reflections on the EEOC’s Definition of Online Job Applicant
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After a long wait, a U.S. government commission comprised of representatives from the EEOC, the DOL, the DOJ, and the OPM has finally released its guidelines on employee selection procedures as they relate to the Internet.” The purpose of this document is to clarify how the Uniform Guidelines on Employee Selection Procedures (the standard for defining the legality of selection activities) applies to Internet-related hiring. Specifically, the document provides a long-awaited official definition of exactly what constitutes an applicant within the context of an Internet-based hiring process. One of the main reasons this determination is so important is the need to provide employers with guidance about when they are liable for documenting the race, gender, and ethnicity of applicants sourced via the Internet. Obviously, this issue will have major implications for compliance-based record keeping, as well as for an organization’s accountability regarding the fairness of its hiring process. To its credit, the commission builds a nice foundation for its decisions. It provides a lot of evidence to support its statement that the Internet has created an environment that allows widespread casual job searching. In fact, the commission clearly states, “The Internet is conducive to casual exploration of employment opportunities and assessment of the job market.” It goes on to say, “Recruitment practices are not considered selection procedures.” In other words, the review of resumes provided by casual browsers and passive job seekers, or recruiter research regarding potential applicants, are not considered to be formal employee selection procedures ó and thus are not subject to the rules and regulations governing the employee selection process. Basically, the government is recognizing the fact that many people browse the Internet to test the waters related to a new job, even though they may not specifically express interest in any one particular position. This clearly captures situations in which people will place a general resume or profile on a job board but not actually apply for any one particular job at the organization. It also clarifies the fact that the remote dialogue between employer and potential applicant occurring during a mutual research phase is not formally part of an employee selection process, and thus need not be regulated in any way in terms of requirements for the collection of demographic data. In order to provide a line of demarcation regarding the exact point where the organization is liable for ensuring that fairness in its applicant pool, and thus must collect data regarding applicant demographics, the government issued the following clear definition: “An applicant is ‘A person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities.'” This statement is further defined to include the requirement that, in order for someone to be considered an applicant, the following three criteria must be met:
The government goes on to clearly state that the above means that “people who post resumes in third-party resume banks or on personal websites are not ‘applicants.'” It also clarifies the fact that people who express interest in a particular type of position ó say accounting positions, for example ó are not considered applicants. The bottom line here is that, until an individual expresses interest in a particular position and follows the precise steps required of those wishing to apply for the position, they are not considered an applicant.
The ramifications of the government’s stance are that the employer has no responsibility to document the demographic information of people who have not formally applied for a specific job. The demographic information related to these people does not become incorporated into the statistics submitted to the EEOC. However, the moment the potential employee expresses interest in the position by complying with the requirements for application submission, they are an applicant and their information must be documented for EEOC-related reporting. There is another part of this document that I think many people may gloss over, but one which has huge ramifications for the Internet-based hiring process. I’m referring to a section that states: “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.” In other words, employers are clearly on the hook for ensuring the job relatedness of any qualifications screening question used as part of the application process. I am not going to rehash my tirade about the need for more quality control in the qualifications screening process. The information quoted above clearly means that if your employees are creating qualifications screening questions, you had better darn well be sure they know what they are doing. One slip here, one question that can be shown to have disparate impact and to not be job related, and you’d better get on the phone with your attorney, because you are wide open for legal action against you. The bottom line from the government is that you can feel free to search databases and research candidates ’til the cows come home with no need to be accountable for who you are looking at or why. However, once someone has expressed interest by submitting an application for a specific req, you are on the hook for everything related to their application process. This includes demonstrating that the people who have chosen to apply for the position using the required procedures are representative of the demographic makeup of the available work population and that no one particular group is underrepresented. You are also clearly accountable for the job relatedness of any criteria used to make hiring decisions about people who enter into your formal selection process. This means that you must be able to clearly document and demonstrate the job relatedness of resume review criteria, qualifications screening questions, interviews, assessments, or whatever you use to make decisions regarding applicant suitability. My personal opinion on all of this is that it’s great that the government has come out and clearly stated what we already knew. But by creating a firm decision in writing, the government has drawn some clear parameters and has left the door shut for excuses regarding the Internet job search and application process. Despite the clarity of the information reviewed so far, dialogue with some of my colleagues about the meaning of this document has led us to agree that there are still issues not addressed in this document. Most notably, there is no information regarding the relationship between minimum qualifications and the definition of an applicant. For instance, if a plumber decides he is interested in a job as a nuclear physicist and follows the application procedures required to apply for a job ó even though he does not meet its minimum qualifications ó is he an applicant or not? He has expressed interest and followed the procedures required to apply for the job, so by definition he is an applicant. Despite the fact that this person does not meet minimum qualifications and has no chance at getting the job, the hiring organization still must document his demographic information based on the action the applicant has taken in applying for a specific job via the correct process. The above situation can be kind of scary because we see unqualified applicants apply for jobs all the time in online hiring, and we all recognize that it has created a real problem when it comes to managing candidate information. While we know that the plumber in our example will be quickly weeded out of the candidate pool based on minimum qualifications that hopefully are job related, the damage is done in terms of the impact of his demographic data on the hiring organization’s applicant statistics. Enough plumbers and other unqualified applicants applying for this job could seriously skew the hiring organization’s EEOC numbers and potentially leave them liable, when in fact they are not. Of course this is an extreme example, but nonetheless it presents a very real possibility. I think the recent government guidelines need to be refined to provide some rules around the ramifications of unqualified applicants in terms of applicant pool demographics. All in all, I am happy to see the government beginning to move into the modern age with its hiring, guidelines. After all, the standard for determining the legality of a hiring process, the Uniform Guidelines on Employee Selection Procedures was first published in 1978 and last updated in 1980! A lot has happened since then, and it’s only going to get crazier as time goes on. The bottom line is, no matter how an applicant is sourced and no matter what the application process involves, companies who recruit for diversity and screen applicants based on clearly documented, job-related criteria will be able to sleep soundly at night. Those that continue to ignore the documentation of the job relatedness of their selection procedures had better make sure their attorney’s retainer fees are paid ó because they may find themselves visiting the courtroom.