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EEOC Definition of ‘Applicant’ Will Not Change
The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it no longer will seek to change the Uniform Guidelines on Employee Selection Procedures' (UGESP) definition of "applicant" to clarify when Internet job seekers become applicants for federal reporting and recordkeeping purposes.
The reason behind the EEOC's March 25, 2008, notice was that the four agencies responsible for UGESP "could not reach consensus on what to say in the final version," Carol Miaskoff, EEOC assistant legal counsel, according to a report published by SHRM.
On March 4, 2004, the EEOC, the Office of Federal Contract Compliance Programs (OFCCP), the U.S. Department of Justice and the Office of Management and Budget (OMB) issued recommended additions to the definition of "applicant" in the form of proposed additional questions and answers to clarify UGESP as the guidelines relate to the Internet and related technologies. The OFCCP then issued its final rule on the definition of "Internet applicant" on Oct. 7, 2005, and the OFCCP's final rule took effect Feb. 6, 2006. The OFCCP enforces Executive Order 11246's affirmative action mandate for large federal contractors.
UGESP requires employers covered by Title VII of the 1964 Civil Rights Act to validate employment tests and formalized selection procedures and maintain records of whether the selection process has a disparate impact on applicants based on their race, gender or ethnicity. If there is a disparate impact, the employer must be able to show that the selection procedure is job-related and consistent with business necessity (see the EEOC's fact sheet, Employment Tests and Selection Procedures). The definition of "Internet applicant" matters as a starting line for recordkeeping purposes.
As the questions and answers (Q&As) on the UGESP note, the guidelines do not apply only to written tests, but "to all selection procedures used to make employment decisions, including interviews, review of experience or education from application forms, work samples, physical requirements and evaluations of performance."
Miaskoff cautioned that some employers continue to use unvalidated selection procedures. Even without any changes to UGESP, she said, the guidelines' definition of "Internet applicant" is "flexible and can accommodate new technologies." Miaskoff observed that "Q&A 15 of UGESP basically says that an applicant is an individual who expresses interest in an employment opportunity congruent with hiring practices."
Q&A 15 of UGESP
The term "candidate" has been included to cover those situations where the initial step by the user involves consideration of current employees for promotion, or training, or other employment opportunities, without inviting applications. The procedure by which persons are identified as candidates is itself a selection procedure under the Guidelines.
A person who voluntarily withdraws formally or informally at any stage of the selection process is no longer an applicant or candidate for purposes of computing adverse impact. Employment standards imposed by the user which discourage disproportionately applicants of a race, sex or ethnic group may, however, require justification. Records should be kept for persons who were applicants or candidates at any stage of the process.
Some experts recommend that employers seeking guidance on who is an Internet applicant for purposes of Title VII look to the OFCCP final rule, even if the employers are not federal contractors covered by Executive Order 11246. No matter what, employers should also review state law requirements to ensure consistent legal compliance.
Published on Tuesday, April 8, 2008 (updated 04/21/2009)
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