New guidance on definition to answer questions, create new ones

By G. Phillip Shuler

Since the issuance of executive order 11246 in 1965, employers have had an affirmative duty to prepare reviews of their hiring practices.

For years many employers, especially federal contractors and subcontractors, as well as employers defending Title VII claims, were faced with a variety of questions when preparing these reports. The definition of the term "applicant" and who counts as an applicant for hiring analysis purposes was something of a minor annoyance for employers - that is until the surge in popularity of the Internet.

With the rise of the Internet employers were suddenly met with a deluge of resumes and applications from faceless job seekers, many of whom had no particular interest in the job being offered by the employer.

Enter the Equal Employment Opportunity Commission (EEOC), which three years ago was charged with the task of defining the term applicant. The EEOC recently released its proposed guidance on the issue.

The current definition of applicant came into effect under the 1978 Uniform Guidelines on Employee Selection Procedures (UGESP). Those guidelines defined an applicant as "a person who has indicated an interest in being considered for hiring, promotion or other employment opportunities" and was highly criticized by both employers and federal government officials in recent years as ignoring the changes occurring in the work place as a result of our expanding reliance on the Internet.

Specifically, the electronic age has created a gray area for employers who arguably would have to maintain race, national origin and gender records on thousands upon thousands of unqualified, unsolicited applicants who have sent a resume through the Internet.

The proposed guidance sets three standards that qualify an individual as an applicant:

1. The employer acted to fill a particular position.
2. The individual has followed the employer's standard procedure for submitting applications.
3 The individual has indicated an interest in a particular position.

The first factor that would require an employer to treat a job seeker as an applicant is whether that employer has acted to fill a position. The action of merely searching the Internet for potential employees is not enough to make all the job seekers applicants under the proposed guidance. However, once a job seeker has been individually identified through such a search, the employer must count that individual as an applicant.

The second factor requires the job seeker to follow the employer's standard procedures for submitting applications. This means that the job seeker must follow all of the employer's non-discriminatory procedures, including submitting the application on time and in the form requested by the potential employer.

The third and perhaps most important standard to be met by job seekers is that he or she must indicate an interest in a particular position. The mere posting of a resume on a third party resume bank or even on the job seeker's personal website is not enough to meet this standard.

Furthermore, a job seeker who shows an interest in a general category of positions, such as clerk or maintenance, will likewise not meet this standard. Additionally, resumes that are repeatedly or automatically listed on an employer's website will not meet the standard of interest in a particular position.

Of course, the proposed guidance standards above apply to both Internet applicants and traditional applicants.

However, one omission that will likely be a bone of contention for employers during the sixty (60) day comment period is the lack of any language concerning a "minimum qualification standard."

Because this language appears no where in the proposed guidance, many employers may be concerned that virtually any job seeker who meets the preproposed guidance standards will be considered an applicant, even if he or she is completely and unequivocally unqualified for the job sought. The lack of this language may also have the effect of unnecessarily increasing the number of individuals considered as applicants.

Finally, the proposed guidance also contains provisions relating to online testing and search criteria. The guidance specifies that any online testing must not have a disparate impact and that search criteria used by an employer will be subject to a disparate impact analysis. Both must be job related and consistent with business necessity.

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