/employer/chemhr/JulAug04/eeoc_update.html

UPDATE: EEOC Definition of Job Applicants
Corinne Marasco

The March/April issue of ChemHR carried a story about the U.S. Equal Employment Opportunity Commission's (EEOC) announcement of a proposed definition and tracking of job applicants in the context of the Internet and related technologies. After three years, and several delays, the Equal Employment Opportunity Commission (EEOC) announced that its proposed guidelines for the definition of a job applicant were published in the March 4, 2004 Federal Register. The comment period ended on May 3 and barring any significant challenges, the provisions will likely be used by EEOC and other agencies, such as the Department of Labor, to evaluate companies' hiring practices. So where are the pitfalls?

Michael Harris, Ph.D., vice president of litigation support services at EASI*Consult, LLC, wrote an analysis of the potential adverse effects of the new guidelines, particularly in the area of applicant tracking.¹

According to the proposal, three conditions must be met for an individual to be considered an applicant when using the Internet or other electronic means (e.g., e-mail, third party job banks, and applicant tracking systems):

The first concern Harris raises is that companies must gather too much information. Since companies need to maintain records for race, sex and ethnicity of applicants, companies may require more financial resources to comply with the new rules. Harris predicts that the greatest burden will be on the companies that do not have a formal, standardized, Internet-based recruitment system, such as one where a company permits applicants to e-mail their resumes to a company representative. The more direct implication is that companies covered by these rules should implement an applicant tracking system that gathers this information for each job opening that is posted on the Internet or a related technology.

Harris's second concern is that the definition is too broad. Employer groups, such as the Society for Human Resource Management, preferred a definition that excluded unqualified applicants. Some employer groups argued for a fourth condition, which would require candidates to meet an employer's minimum qualifications in order to be considered an applicant. But because the provisions do not include this "minimum qualification" requirement, the potential for legal challenges exists.

One example of such a challenge is if job testers, people who act as job candidates to determine whether there is discrimination, will be able to apply for jobs and as long as they meet the three conditions set forth by the EEOC definition, they might count as applicants, Harris says. Furthermore, because the Internet plays a large role in a job search, electronic systems will be documenting the hiring criteria, job-related or not. This information could be obtained by plaintiff's experts, reviewed, and challenged if they are not clearly job-related.

The third concern he raises is that the standard for job relatedness may be set too high. The proposed guidelines state, "All search criteria used are subject to disparate impact analysis. Disparate impact analysis can be based on Census or workforce data. If a disparate impact is shown, the employer must demonstrate that its criteria are job-related and consistent with business necessity for the job in question."

Harris notes that the phrase "job-related and consistent with business necessity" comes directly from the Civil Rights Act of 1991. What he finds particularly noteworthy, however, is that there is no universally accepted method to demonstrate the job relatedness and business necessity of minimum qualifications. So while the Uniform Guidelines on Employee Selection Procedures (UGESP) details methods for validating tests and selection procedures that are found to have a disparate impact, there are none for a company to demonstrate job relatedness and business necessity.

The question, Harris asks, is how high should the bar be set? At the very least, he says, "companies must pay greater attention to all job requirements and selection criteria�to ensure that they are properly documented and as clearly job related as possible." Furthermore any employment tests, including those given online, are subject to UGESP. The test must also be analyzed for disparate impact because the results are used in making employment decisions.

In light of his review of the proposed guidelines, Harris offers the following recommendations to companies that are covered:

1. Justify all of the selection criteria that are used to screen and select applicants.
2. Carefully track applicants and audit hiring systems for possible disparate impact.
3. Make changes in the selection process to resolve problems raised by the audits.
4. Educate managers on these basic concepts so they will support the audits and any modifications in the selection systems.