Alert for Government Contractors...Proposed Guidance on "Applicant" Issued
On March 4, 2004, the Office of Federal Contract Compliance Programs (OFCCP) and other federal agencies issued long overdue proposed guidance on the definition of who is an applicant, including when a person applies for a job via the Internet. The proposed guidance is significant because it outlines a test for determining who is an applicant that is broader than the interim definition that was recently suggested by OFCCP personnel. The definition of applicant is particularly important to federal government contractors because they must track the race and sex of applicants and analyze whether hiring practices, policies or procedures have a "disparate impact" on minority and women applicants.
Background
Government contractors have to track persons who qualify as applicants for open positions so they can later compare the hiring rates of women to men and of minorities to whites. The OFCCP never clearly defined the term "applicant," however. The OFCCP stated that it relied on the definition of applicant contained in Question and Answer 15 from the "Adoption of "Questions and Answers to Clarify and Provide A Common Interpretation of the Uniform Guidelines on Employee Selection Procedures ("Uniform Guidelines")" that was published on March 2, 1979 to further clarify the Uniform Guidelines, which had been issued on August 25, 1978 by the Equal Employment Opportunity Commission ("EEOC"), OFCCP, the Office of Personnel Management ("OPM"), and the Department of Justice ("DOJ"). According to these Uniform Guidelines, an "applicant" is any person who has indicated an interest in being considered for hiring, promotion or other employment opportunities. The Uniform Guidelines direct employers to keep records regarding all applicants.
Employers who are federal government contractors struggled with how to reconcile their practical recruiting needs with the OFCCP's guidelines. Contractors often resisted such a broad definition because of the burdensome recordkeeping obligations and the negative effect that including large numbers of unqualified persons had on their disparate impact analyses. Many contractors defined an applicant as anyone who expressed an interest and met the minimum qualifications required for the position. Such a definition enabled contractors to limit the pool of applicants for whom they kept records only to qualified candidates. Some contractors went further, and limited their definition of applicant to those who filled out an employment application which was in turn only made available to candidates at the time of on-site job interviews. In addition, employers have been increasingly concerned about the definition of "applicant" because the Internet has become an increasingly important tool for recruiting and greatly increased the potential pool of applicants.
In late 2001, the Office of Management and Budget ("OMB") instructed the agencies that issued the Uniform Guidelines to update the Uniform Guidelines to address the definition of applicant and the impact of the Internet and related technologies on the question of who is an applicant for purposes of the Uniform Guidelines. The proposed guidance also informs employers when they should identify the race, gender and ethnicity of their applicant pool when they use the Internet and related technologies. The proposed guidance can be found at http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2004/pdf/04-4090.pdf
The fact that the proposed guidance limited the context of the definition to the Internet and related electronic data processing technologies is unfortunate, as it leaves open the question of whether the definition will apply to traditional "paper" processes. This certainly will be one of the issues on which comments will be received. The issuing agencies may have felt constrained to limit the proposed guidance in this way because of how the OMB framed their assignment, but many of the principles in the proposed guidance arguably should translate into the more traditional paper-based employment processes, as well.
The New Proposed Guidance
The proposed guidance adds five questions and answers and seeks comments on them before they are finalized. Comments must be submitted on or before May 3, 2004. The EEOC will eventually publish an announcement in the Federal Register of the effective date of the proposed guidance once it is finalized This article focuses on one of the new questions and answers. Question and Answer 96 is the "biggy" and addresses what is meant by the term "applicant" in the context of the Internet and related electronic data processing technologies. The Answer to Question 96 states:
In order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred:
(1) the employer acted to fill a particular position;
(2) the individual followed the employer's standard procedures for submitting applications; and
(3) the individual indicated an interest in the particular position.
The proposed guidance elaborates on each of the three parts of the test, with examples.
The proposed guidance offers an example of an employer seeking to fill two positions in one of its facilities. The employer identifies 200 recruits from the database it maintains of job seekers who register and complete on-line personal profiles for the employer's resume database for the type of positions at issue. The employer contacts the 200 job seekers and 100 respond affirmatively and timely to the employer's inquiry about their current interest in the particular vacancies at the particular location. The proposed guidance states that even if the employer chooses to interview only 25 of the 100 affirmative responders for the positions, all 100 are "applicants" within the meaning of the Uniform Guidelines. But job seekers who submit unsolicited resumes (whether electronic or otherwise) for positions of a type which the employer is not currently seeking to fill would not be "applicants," although they might later become applicants if and when the employer decided to fill the position and contacted them to see if they were interested.
To limit the number of job seekers who must be considered "applicants," employers should consider setting up their recruitment and selection procedures so that those job seekers who send resumes to the employer or fill out electronic profiles are not applying for specific vacancies at specific locations, and thus only the smaller group of job seekers who are subsequently contacted by the employer and who indicate an interest in the particular vacancy at the particular location will be deemed "applicants" under the Uniform Guidelines.
Also note, the proposed guidance does not state that the employer in its example may exclude from the definition of "applicant" those of the 100 who failed to meet the employer's minimum qualifications for the position. The absence of language allowing an employer to consider qualifications in defining who is an applicant almost certainly will be the subject of comments that will be submitted objecting to the proposed guidance.
for submitting applications.
The proposed guidance acknowledges the employer's power to define how a job seeker must apply, and only those who follow the employer's procedures become "applicants" under the Uniform Guidelines. For example, if job seekers must use an electronic kiosk or contact the store manager to apply for a sales position, only those who do so are "applicants" under the Uniform Guidelines. Similarly, if an employer e-mails on-line job seekers to ask if they are currently interested in a particular vacancy, only those who meet the employer's deadline qualify as "applicants." The proposed guidance reminds employers that the employer's procedures and directions must be non-discriminatory because recruitment and the application processes are subject to Title VII and Executive Order 11246.
The proposed guidance explains that people who post resumes in third-party resume banks or on personal websites are not "applicants" within the meaning of the Uniform Guidelines for employers who search those sites because the individual is not indicating an interest in a particular position with a specific employer. Such a person only becomes an "applicant" if the employer contacts the individual about a particular position and the individual indicates an interest in that position and follows the employer's standard procedures for submitting applications. The same would be true if the employer contacted an individual about a particular position in response to an unsolicited resume submitted on-line, the individual would need to indicate an interest in that position and follow the employer's standard procedures for submitting applications before becoming an "applicant." A job seeker who expressed interest in a whole category of positions, such as marketing opportunities, rather than a particular vacant position with a specific employer is not an applicant. The proposed guidance also explains that if an individual repeatedly submitted a resume or profile to the same employer (for example, by adding numerous on-line job listings to his or her "shopping cart") or simply sent resumes (for example, by using automated on-line tools) over and over again, that individual was merely identifying the types of positions in which he or she was interested and was not automatically an applicant. But under the proposed guidance, the situation would change if the job seeker completed and submitted an electronic application form which was unique for a particular position because then the job seeker would have indicated a specific interest in that particular position.
What the Proposed Guidance Does Not Do
It is important for employers to note that the proposed guidance will not alter in any way the legal rights and responsibilities of employers, applicants and employees under Title VII or Executive Order 11246 (applicable to federal government contractors) under any legal theory of discrimination, including disparate impact. The right of an applicant or employee to file a charge or complaint of discrimination or to file a lawsuit is unchanged by the Uniform Guidelines and the proposed regulations on the term "applicant." Thus, even if a job seeker is deemed not to be an "applicant" under the Uniform Guidelines, employers may not discriminate against that job seeker on the basis of race, gender or ethnicity and that job seeker remains free to pursue claims of discrimination against an employer.
Advice for Government Contractors
On an interim basis, the Director of OFCCP's Division of Program Operations suggested in summer 2003 that until the proposed guidelines were finalized, OFCCP compliance officers would accept as an interim definition of "applicant," if used consistently by an employer, those job seekers who are minimally qualified, have been considered as part of a pool of candidates who have survived some initial screening prior to the formal interview process and who are in the final pool from which the employer performs an impact ratio analysis comparing hires to applicants. In other words, as long as the employer was gathering race, ethnicity and gender information for a group larger than the group of people it interviewed, the OFCCP would accept the employer's definition.
The proposed guidance is far different and sweeps in a much larger group of people. For example, the proposed guidance does not explicitly allow employers to exclude those who fail to meet minimum qualifications. For now, employers should review the proposed guidance, compare it with their current definition of applicant (both with regard to Internet-type and paper resumes, applications, etc.), determine how, as a practical matter, they can best comply with the definition in the proposed guidance and begin readying their applicant tracking systems and application procedures to meet the requirements. Simultaneously, employers should ensure that any objections they have to the proposed guidance are voiced during the comment period. The two major human resource associations representing government contractors, the Equal Employment Advisory Counsel (EEAC) and the Society of Human Resource Management (SHRM), had input into the proposed guidance and may well be further commenting. Employers should make sure that their views are considered by these and other trade associations to which they belong and should urge those groups to comment on what they perceive to be troubling aspects of the proposed guidance by May 3, 2004.
For more information on topics raised in this article, please contact Ely A. Leichtling at (414) 277-5681 or e-mail eal@quarles.com, or Pamela M. Ploor at (414) 277-5661 or e-mail at pp1@quarles.com, or your Quarles & Brady attorney.