OFCCP, EEOC, and Internet Applicants

In a previous article, I discussed the EEOC’s proposed definition of an Internet applicant. What you may not have known is that around the same time, the Office of Federal Contract Compliance Programs, or OFCCP (www.dol.gov/esa/ofccp/) as it is usually referred to, announced its own proposed definition of an Internet applicant. In this article, I’ll summarize the proposed OFCCP definition of an Internet applicant. Next, I compare the proposed OFCCP definition to the proposed EEOC definition. I conclude with several suggestions for companies regarding these proposed definitions. If your company is covered by the OFCCP, I urge you to continue reading! A Summary of the OFCCP’s Proposed Definition of an Internet Applicant You might first be wondering how OFCCP can adopt a different definition of an Internet applicant. The answer is that that EEOC’s guidelines explicitly permit each of the “UGESP agencies,” which include the OFCCP, to issue additional guidance or regulations to enable them to meet their enforcement responsibilities. With this in mind, let’s review what the OFCCP has proposed here. Briefly, the OFCCP has defined an Internet applicant as an individual who meets all of the following four criteria:

  1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies.
  2. The employer considers the individual for employment in a particular open position.
  3. The individual’s expression of interest indicates the individual possesses the advertised, basic qualifications for the position.
  4. The individual does not indicate that he or she is no longer interested in employment in the position for which the employer has considered the individual.

In terms of the third criterion, in order to be considered an “advertised, basic qualification,” the following three conditions must be met:

  • The qualification must be a non-comparative feature. A non-comparative qualification is something that is either possessed or not possessed by the candidate (e.g., three to five years of marketing experience). A comparative feature would be a quality that could be used to compare one candidate to another candidate (e.g., the most years of marketing experience in the applicant pool).
  • The qualification must be objective. The example given in the proposed rules for an objective qualification is a “Bachelor’s degree in accounting.” The example for a subjective qualification is “a technical degree from a good school.” While on the surface this condition sounds reasonable, I expect that many qualifications will have a component of subjectivity to them. For example, a qualification of “three to five years of marketing experience” appears objective on the surface, but in reality may be rather subjective, depending on how one defines “marketing experience” (e.g., is making sales presentations a marketing experience?).
  • The qualification must be job related. Although no example is provided, the proposed rules state that the qualifications must be relevant to the performance of the job and enable the employer to accomplish business-related goals.

It should also be pointed out that it is not entirely clear what “advertised” means here. Would, for example, a checklist of job requirements, which must be completed by the candidate, be considered “advertised?” Comparison of the OFCCP Proposed Definition to the EEOC Proposed Definition Recall from my previous article that the EEOC proposed rule has the following three criteria:

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

Under the EEOC proposed rule, the trigger is in the hands of the candidate, who must express an interest in a specific position (EEOC criterion #3) and follow the procedures for submitting an application (EEOC criterion #2) in order to be considered an applicant. Under the OFCCP rules, it would appear that all the candidate must do is express an “interest in employment” (OFCCP criterion #1) and possess certain qualifications (OFCCP criterion #3). The trigger is primarily with the recruiter or hiring manager, who must have considered the candidate for employment in a particular open position (OFCCP criterion #2). Thus, under the OFCCP proposed rules, the employer seems to have a central role in defining who is, and who is not, an applicant. Well, you might be thinking, what difference does it make as to whether the candidate or the employer has the central role in determining who becomes an applicant. I would submit that a major practical difference occurs in the following situation. As described in my previous article, the proposed EEOC rules contained an example of a company that wishes to fill two vacancies at location X. In that example, the company had access to a resume database, from which it identified, and subsequently contacted, 200 recruits who had indicated availability to work in location X. The example continued with 100 of these candidates responding affirmatively and in a timely fashion to the employer’s inquiry. The conclusion in this example was that even if the employer decided to interview only 25 people for the position, all 100 of the candidates who chose to respond would be considered applicants. But if you apply the OFCCP criteria, it would seem that all 200 people identified by the company would be considered applicants, not just the 100 who actually responded affirmatively. Furthermore, one might question whether the requirement for “availability to work in that geographic location” is even going to meet the OFCCP’s criteria to be considered an “advertised, basic qualification.” As I noted above, what exactly does “advertised” mean? And, will “availability to work in location X” meet the third criterion above (i.e., relevant to the performance of the job and enabling the employer to accomplish business-related goals)? Thus, it would seem that in the case of a resume database, a company conducting a search may have produced more applicants under the OFCCP proposed rules than under the EEOC proposed rules. Now that you understand at least one major difference between the proposed EEOC definition and the proposed OFCCP definition, you might be wondering why OFCCP would have considered an alternative definition for its purposes. My speculation is that there was a concern on the part of the OFCCP that in order to avoid potential liabilities with EEOC’s definition, some companies may be contemplating the elimination of all advertisements for specific job openings. In their place, these companies might allow candidates to apply only for a general group of jobs or for no particular jobs at all. In that way, a company might dramatically reduce the number of Internet applicants, as defined by EEOC proposed rules. The OFCCP’s proposed definition would, however, define any of the Internet candidates considered by the company in this scenario to be applicants. Implications of the Proposed OFCCP Rules If your organization is covered by the OFCCP, you should consider the following suggestions:

  1. Employers covered by the OFCCP may ultimately have to keep two sets of applicant records ó one set for the EEOC and one set for the OFCCP.
  2. Make sure that you are properly recording who is and who is not an Internet applicant under the OFCCP and the EEOC rules. Any applicant tracking systems that are implemented must be able to properly track applicants based on these criteria.
  3. When these proposed rules are finalized, you will need to carefully review your recruitment practices to ensure that they are in compliance with OFCCP and EEOC requirements.
  4. Although standardized Internet recruitment systems may help prevent certain legal pitfalls, you will need to carefully monitor these processes to ensure that you are in compliance with all OFCCP and EEOC rules and regulations. As standardized Internet-based systems are increasingly used, I suspect that enforcement agencies and plaintiffs’ lawyers will make greater use of statistics to detect the presence of disparate impact.

In sum, whether you are a recruiter, an HRM manager, or an attorney responsible for employment discrimination issues, you will need to stay tuned to developments in this area. Although it is not known when the proposed rules will be finalized, or what they will ultimately look like, they are likely to affect the hiring process for years to come.

Michael Harris, Ph.D. (mharris@easiconsult.com) is the vice president of litigation support services at EASI*Consult, LLC, a management consulting firm that provides expert assessment solutions and litigation support. Dr. Harris has served as an expert witness and consultant in a variety of employment discrimination cases, including race, age, and disabilities lawsuits. Dr. Harris has published extensively in the human resources management area, including two books: The Employment Interview Handbook and HRM: A Practical Approach. He has delivered training on interviewing, diversity, "train-the-trainer," and related topics. He is currently one of two chief contributors to George's Employment Blawg, a blog devoted to HR and HR law issues. Dr. Harris holds a professorship in the College of Business Administration at the University of Missouri-St. Louis. He can also be contacted at 1.800.922.EASI, 314-803-6618 (mobile).

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