Reflections on the EEOC’s Definition of Online Job Applicant

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:

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

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.

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  • You post a resume on one of the major job boards… Sorry, you are not an applicant.
  • You send a resume to the “jobs@” email address on a company’s website but are not applying for any particular position… Sorry, you are not an applicant.
  • A recruiter doing research finds out about you through her network and forwards your resume to a hiring manager before ascertaining your level of interest… Sorry, you are not yet an applicant.
  • You hit the “apply now” button, complete a profile, forward a resume as directed by the hiring organization… Congratulations, you are now 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.

Dr. Charles Handler is a thought leader, analyst, and practitioner in the talent assessment and human capital space. Throughout his career Dr. Handler has specialized in developing effective, legally defensible employee selection systems. 

Since 2001 Dr. Handler has served as the president and founder of Rocket-Hire, a vendor neutral consultancy dedicated to creating and driving innovation in talent assessment.  Dr. Handler has helped companies such as Intuit, Wells Fargo, KPMG, Scotia Bank, Hilton Worldwide, and Humana to design, implement, and measure impactful employee selection processes.

Through his prolific writing for media outlets such as ERE.net, his work as a pre-hire assessment analyst for Bersin by Deloitte, and worldwide public speaking, Dr. Handler is a highly visible futurist and evangelist for the talent assessment space. Throughout his career, Dr. Handler has been on the forefront of innovation in the talent assessment space, applying his sound foundation in psychometrics to helping drive innovation in assessments through the use of gaming, social media, big data, and other advanced technologies.

Dr. Handler holds a M.S. and Ph.D. in Industrial/Organizational Psychology from Louisiana State University.

LinkedIn: https://www.linkedin.com/in/drcharleshandler

 

 

 

 

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22 Comments on “Reflections on the EEOC’s Definition of Online Job Applicant

  1. Thanks for the great article – critically important data. My question is: is there still time to influence the definition? I see monstrous challenges for corporate staffing organizations – especially in large companies where there is increased hiring activity, i.e., lots of job postings. In the ‘old’ definition, if we concluded someone was not part of the applicant pool because s/he did not meet the minimum qualifications or, for example, applied for the position when we already had a candidate in the offer cycle, we were in compliance by designating that applicant as ‘Not Considered’ as opposed to ‘Not Selected’. I just have visions of nightmarish proportion about trying to get anyone who applies for a specific positon to copmplete the coluntary self-ID form. And in my experience, lots of applicants apply for lots of positions, many of which they are not even remotely qualified to do. Some companies restrict the number of positions you can apply for; others require a rather lengthy application process. I guess we have to balance the compliance requirements with the candidate experience and find a happy medium.

    Thanks for listening!

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  2. This article clearly articulates the basics of the proposed ‘applicant definition’ issued for comment by EEOC early in March.

    However, given that this definition is really only an addition to the existing ‘Uniform Selection Guidelines’, it is important to also discuss the ways in which employers can manage the applicant process more effectively to decrease the viable applicant pool. We all must remember that statistical analyses are required, particularly for federal contractors. The larger the pool being analyzed the more likely a disparate effect will be evident. This triggers a significant amount of additional analysis. Therefore, keeping the viable pool as small as possible is of vital importance.

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  3. Nice Job on this article; its short, to the point, comprehensive, and should be mandatory reading for everyone in staffing.

    I hope the EEOC, DOL, DOJ, and OPM do come up with some standard whereby an applicant can be screened on a ‘prima facie’ basis; perhaps by forming two types of applicants; those totally unscreened and those screened for minimal qualifiaction.

    Best,

    Martin

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  4. What i am most interested in is the Independent Recruiters liability on this matter. It seems to me because of these government requirements, Most of the time it is more beneficial to go through a Recruiter to Qualify Candidates, as they do today and this would lessen the impact on EEOC reporting and would filter the possible liabilities from the Hiring company.
    What are the Benefits (relating to EEOC reports and guidelines) for using an Independent Recruiting versus the ‘InHouse’ Recruiter.
    Also what are the I. Recruiters Liabilities.

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  5. Jerry,
    Under the new guidance ‘Independent’ recruiters will have (as always) the same responsibility for record keeping as in house and agency recruiters. If you engage the candidate by having him or her follow a set of established procedures to be considered for an established job, and he or she follows those procedures, you are responsible for the record keeping. That has not changed. There is no ‘safe haven’ from the UGESP in our profession — there never was.

    Also, you might want to look again at any concerns about ‘liability.’ While a guidance like this is primarily aimed at assisting enforcement of the UGESP it is, after all, simply about RECORD KEEPING. There is nothing in this guidance that challenges your hiring decisions or selection methodology. With today’s all-in-one ATS and related technology there is also nothing in this guidance we can’t easily meet!

    Another way to look at it is that now we don’t have to fill our electronic or physical databases with all those unqualified resumes mined off the job boards because some misguided expert said they were ‘applicants.’

    I am an ‘independent’ who has been using the Internet for recruiting since before the Web was created and in my opinion this is a good guidance. We have been flying blind on record keeping in Internet recruiting far too long and quite frankly have been wasting a lot of precious time chasing unnecessary records.

    This is good.

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  6. Thanks to everyone who has responded to my article. I am glad that you all have found my ideas useful. I am the first to admit that this issue has many facets and that there are no cut and dried answers to all of them. I think the fact that so many folks have taken time out of their busy lives to generate ongoing discussion of the issues shows how much we care and are interested in learning the rules so we can be sure to play by them. Hopefully, the agencies involved will continue to work on this issue and will utilize input from professionals such as ourselves to help ensure their response is relevant and easy to implement.

    -Charles Handler

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  7. Charles

    Thank you for summarizing this very important issue. I also am concerned about the ‘problem area’ of minimum qualifications.

    And considering the email thread from your 4/7/2004 article from authors Jerry Haron and Ed Lawrence, I am concerned about the administrative responsibilities implied for TPRs.

    Do you have any insights or advice on how TPRs must prepare for this new requirement?

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  8. I am new to this site and I found your article to be informative and helpful for my part as a recruiter and the employees. Short and to the point Gosh how long would I have spend blowing thru governments articles.
    Thanks again.
    Margie

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  9. These requirements have not yet been solidified; it seems that most observers and participants keep coming back to the idea of some ?minimum? qualification being an element before a person would be considered an applicant for statistical purposes. Yet it seems to beg the question to apply a selection process to people ? before? they become ?applicants?.

    Furthermore, the Internet and new recruiting technologies are allowing the same individual to ?apply? for, or express interest in, a great number of positions at one time, or over a period of time. Avoiding statistical impact from this kind of repetition is obviously important; but avoiding individual consideration of each person and position is a slippery slope that EEOC, OFCCP, DOJ, etc. appear to want to avoid.

    Hopefully some workable two-part construction can be arrived at to distinguish between raw data (totally unscreened individuals) as ?applicants? and some secondary or basic level of qualification to create a ?candidate?. The reporting requirements for the former being lighter and less exacting, while for the latter being somewhat more detailed and thorough.

    As it is, requiring accurate tracking for every employment brand exposure where the target is not completely passive seems to be at the least, unrealistic, and that the worst, an invitation for fraud and abuse.

    I hope creativity will yield a workable improvement to the current situation, as is possible that the new proposed definitions are step backward without some ability to distinguish between bona fide applicants and simply useless ‘applications’.

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  10. Charles, your on the front lines and its good to know your real-world opinion of the pre-qual idea. Its good stuff. But back to a scholastic note:

    What if the ‘applicant’ is not human- maybe a web spider?

    An attorney or doctor applicant without a license? An aspiring college dean with just a GED ? A person who applies every week?

    If a recruiter can just rule a resume out of hand, and has a reasonable statement of cause, they should be able to note it, save the record, and not have the record count as an applicant for compliance purposes. The raw stats should be preserved as simple counts. Its easy enough to go back and see if the statements hold water.

    No sane businessperson would discriminate on race if the candidate of the preferred race were grossly less likely to perform.

    Most people recognize that affirmative action implies greater flexibility in judging qualifications; although some seem to be able to hold the idea of pure merit selection and affirmative action at the same time. In reality, it?s a lot more complicated; individual, unique situations for organizations, industries, etc. Just how much of an edge or handicap a candidate is given will always vary.

    The Uniform Guidelines explicitly recognize the difference between selection and ranking, and so should the legal statistical requirements for applicant tracking.

    That?s why when the nitty hits the gritty, the statistics people depend on should reflect real people who were really being considered for employment, and not random web noise generated from traffic, branding strategies, the economy, and who knows what else.

    Steve, good to see you are sticking to your guns, but perhaps a deeper look into yourself might reveal some forms of filtering, prejudgment, and stereotyping, since you can?t very well be a human being, let alone a recruiter, unless you do quite a bit of those things.

    After all, much ?merit? arises from how people feel about things, so it can never be objective in a reliable way.

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  11. To both comply with EEOC rules and increase staffing productivity, why not simply discourage unqualified job seekers from applying in the first place?

    A simple online applicant questionnaire, focusing on the requirements spelled out in the job description, can be highly effective. Since job seekers are confronted with the questionnaire before they have a chance to complete the applicant process, the individual can self-select into or out of the applicant pool before the new EEOC guidelines kick in.

    For job seekers who do ?qualify? for the job, i.e., those who possess the minimum job requirements and desired applicant qualifications, a system of this kind confirms that they?re ?on the right plane? and can encourage them to pursue the job with vigor.
    On the other hand, upon encountering the questionnaire, the vast majority of unsuitable job seekers ? those who are under-qualified, over-qualified, or simply not motivated to apply ? quickly walk away.

    The mere presence of this recruiting ?hurdle? almost always dissuades unwanted job seekers from wasting time on poor-fit jobs in favor of those that better match their professional profiles.

    The result? Fewer but better qualified applicants, lower administrative cost, more time for attracting top talent, and full EEOC compliance.

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  12. Thanks all of you for your great comments.
    I could not agree more with most of them.

    The more I think about it the more I can see the posting of min quals that are formal enough to define who is an applicant vs who is not an applicant may be a serious nightmare for everyone involved.

    My reference point on this is organizations’ inability to create job related screening questions. The value here is clear but they are still not doing the legwork to ensure that they understand the job via some formal research and use the results to create these questions.

    Extending this to the creation of min quals, how are organizations going to accurately set min quals that are job related? If they dont have clear documentation on how and why the min quals have been set they are opening up all kinds of potential problems from applicants who may feel qualified and may wish to challenge the min quals. If it gets ugly and the company is pressed to show how they set min quals and it is revealed that this was done in an arbitrary manner, the company could be in trouble.

    Honestly, seeing how long it took to get where we are now, I dont see any min qual rules being included anytime soon.

    I think the phrase ‘dont go there’ pretty much sums up the thinking of the powers that be on this one.

    Thanks again for the responses and good ideas.

    -Charles

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  13. With all of the different definitions out there HRLogix sticks to what will be defendable when it comes to utilizing on-line recruiting. There is a State Supreme Court ruling from Lousisana that states that a job-seeker is not a applicant unless they meet the base qualifications set in the job description. We feel that there will be multiple companies pointing to this when they have to defend. If there is interest I can provide the case at djohndrow@hrlogix.com. Good Luck out there!

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  14. Steve

    I think you said what so many of were afraid to state. Nonetheless, many of us in recruiting have a strong HR background and compliance issues can’t be diminished easily.

    I wish I had your guts!

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  15. I am a TPR. I only use email and the internet to find qualified candidates. I rarely ever meet any of my candidates. I can’t see the color of their skin, their race, or their ethnic background. Nor, do I ever ask. My world is color blind and offers equal opportunity to all. It has no race, no disabilities, no prejudice… it is a perfect world were only merit matters.

    Now the govenment wants me to pay attention to race and all the rest. And they are now mandating that I keep records to prove that I am doing it!!

    I won’t do it. I just won’t. It is stupid and foolish and I don’t suffer stupid fools. My defense is my world of merit against theirs of endless analysis of race and disablity and all the rest.

    Martin Luther King dreamt of a day where he would not be judged by the color of his skin, but the the content of his character. I judge candidates by the content of their resume and their accomplishments. Unfortunately, our government is stuck in the past. Give it up. It is time.

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  16. Re: Kenneth?s post.

    In a candidate-rich market, being more selective than the norm probably does not impact competitiveness, but in a talent-short market, such a move would be a counter-intuitive way of finding the needed performers.

    There are many approaches to employment branding, and every niche has its own mix of employable yield v. exposure ratios, objective v. subjective requirements, and individual market attributes.

    We have large clients who are very interested in a simple and smooth online application process; the idea of a deliberate bottleneck would be a non-starter.

    On the other hand, Kenneth does raise the good point that controlling quality at the input end is helpful, regardless of your definition of ?applicant?.

    I?m hardly the first to suggest the input end does not really start at the website ? it starts with employment branding and conversion to the action step of hitting the website.

    I wonder what the actual likely falloff ratio would be when attempting to discourage a person who is applying for a job that they are not remotely qualified for in the first place; and of more concern; how that person?s actions impact selection activities, hiring statistics, and conditions for bona-fide applicants.

    Also, by filling out the questionnaire at all, a person would have expressed interest in a position, and by the new proposed definition, would be considered an applicant.

    With Best,

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  17. Speaking strictly from a ‘recruiting’ standpoint, and not a ‘hiring’ standpoint, when trying to develop a base of rare candidates, who hopefully possess very specific and marketable skills (recruiting), and trying to match them to a job with a very hard and fast line of minimum job skills, it is easy to stick to that line and only consider candidates who meet the minimum qualifications. When sourcing candidates for positions with more fuzzy skill qualifications, and needing to ‘disquality’ candidates (hiring), is where companies tend to place themselves at risk…because they put out a minimum job qualification, and everyone does due diligence according to EEOC guidelines, and wham, the hiring authoriry decides to offer the job to someone who does not quite meet every minimum skill in the job qualification list. This leaves it wide open for someone else not considered to scream discrimination. All the more reason, in my opinion, for people to make themselves specifcally skilled and marketable, and not depend upon the government to micro manage the picking and sorting through the mediocre skill sets most common out there. When companies allow their recruiting and hiring processes to match the supply and demand of skills needed, there is virtually no need to worry about discrimination in hiring, because it won’t occur. That is to say, the legal system won’t be able to find a foothold in the hiring practices of such companies.

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  18. Martin,

    Of course we are all human and we have certian bias, but our goal is not to be non-human, i.e., machine objective. If that were the goal, then machines or a piece of software should be qualifing candidates.

    Our clients pay us to find excellent qualified candidates and that is all we are looking for. We are not looking for diversity, a certain race or sex or age. We look for excellence and some are more excellent than others.

    I don’t need some government regulation to tell me to be fair and honest with candidates. We do that normally.

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  19. I receive many calls from people looking for just that- near machine qualification of candidates. Of course you seek excellence, by your lights, to provide top value for your clients. You want to be as objective as possible and select a winner as often as possible; you are not going to get repeat business by presenting losers.

    Often I have responded to Dr. Williams and others to float the idea that selection procedures and eventual candidate success are not necessarily related; an ugly duckling may become a swan under the right conditions, but who will pick an ugly duckling?

    An ideal of affirmative action is the proposition that past discrimination can be remedied with limited current compromises because people who might not be highly selectable will often grow to be top performers when given a chance; and mandating that the chance be given is the essence of the compliance regime.

    It seems a plausible idea; possibly even too limited in our society; how about some help for the unattractive, or for people from lower social classes, or people with heart and talent but limited schooling or polish?

    Another keystone of the diversity ideal is that it intrinsically fosters excellence; by mixing viewpoints and cultures, styles and solutions evolve that fit more of the myriad human wants and needs in all phases of business, while giving strength to organizations just as biodiversity does for life on earth.

    That’s where the ideal and the reality bump each other. If the market you serve says ‘excellent’ means competent, young, white, male, healthy, and advantaged, and ‘good’ means competent, than the government will tell you that excellence is not to be had. And like your tax returns and your marriage, it’s a private matter between you and you regarding compliance.

    So my points boiled down; apparently poor selection criteria can produce winners, our ideas of ‘excellence’ are somewhat subjective and market driven, and that compliance with hiring practice rules and laws is by practical reality a private moral choice.

    Steve, I believe you would select a person of color in a heartbeat if you thought that they were the best candidate for your client. But only you can know what that really means day to day; I dont think there is an objective way to share that judgement.

    With Best,

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  20. I know this thread is a couple months stale, but this is a topic I?m really interested in.

    First, it seems that you could get the desired sifting of new applicants without a real bottleneck if you made the survey questions optional. Anybody who wanted to skip the survey could, and anyone who scored poorly would still be included. That way, you retain a large pool of applicants to choose from, but you have a certain proportion of them who are ?pre-qualified? by survey responses. If you don?t find good candidates among the top responders, you can move on to applications from those who didn?t fill out the survey.

    Second, it seems to me that the benefits of deterring marginal applicants from applying electronically might include not just time saved in finding desirable candidates, but increased participation by qualified job seekers. Do you guys believe that is a factor worth considering at all?

    In my experience as a job seeker, I (and I think others) have generally viewed electronic applications as something of a crapshoot, and often refrain from tossing my resume in with a large pile of applicants in response to a job posting that is typically not that informative (Has the position been filled already? Is the job description accurate and up to date? Is the position even real?). Obviously, filtering candidates doesn?t deal with the issue of stale or poorly described job openings, but it does address the feeling I often have that my resume, good or bad, will end up buried under hundreds of lousy resumes. Survey questions or other mechanisms that would pare down applicants could be used to give candidates a somewhat better idea where they stand in the electronic application process and might attract desirable candidates who would otherwise avoid sending their resume into an electronic black hole. Do you guys think there is any potential for more focused electronic recruiting to attract new candidates into the process who are sitting on the sidelines?

    Very interested in anyone?s thoughts. Also, as this post doesn?t deal directly with the new EEOC definitions, please let me know if there?s a better place to post.

    Thanks,

    Paul

    You can read the original article here

    Post your own Article Review
    http://www.erexchange.com/p/g.asp?d=M&cid={0E80C154-AA49-4CC0-A6BB-2C3C2CA8B2A2}

  21. I am wondering if you can put on the application process “only candidates that meet the minimum requirements will be considered as applicants for the position” to protect ourselves because they are following #2:

    The individual in question must have followed the employer’s standard procedures for submitting applications.

    I am just wondering if this is legal?

    Thanks

    Bridget

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