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A rose by any other name…

Reflections on the EEOC's recent announcement of what defines an "online job applicant"?

After a long wait, a US 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." (visit http://edocket.access.gpo.gov/2004/04-4090.htm to access this document). 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) apply 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 for the importance of this determination is the need to provide employers with guidance about when employers are liable for documenting the race, gender, and ethnicity of applicants sourced via 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.

In this article I will discuss the main idea of new guidelines document and provide some brief comments on what it means for organizations using the Internet to source and screen candidates.

Clarification at last

To their credit, the government builds a nice foundation for their decisions by providing a good deal of evidence to support their statement that the Internet has created an environment that allows widespread casual job searching. In fact they clearly state that:

"The Internet is conducive to casual exploration of employment opportunities and assessment of the job market."

They also clearly state that:

"Recruitment practices are not considered selection procedures"

The above provide a guideline suggesting that the review of resumes provided by casual browsers/passive job seekers or recruiter research regarding potential applicants are not considered to be formal employee selection procedures and thus are not subject to the rules and regulations governing the employee selection process.

Basically, this stance indicates that the government recognizes the fact that many people browse the Internet to test the waters related to a new job but 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 will not actually apply for any one particular job at the organization. This 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 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 3 things must have occurred:

• The employer must have acted to fill a particular position
• The individual in question has followed the employer's standard procedures for submitting applications, and
• The individual in question has 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'"

They also clarify the fact that persons who express interest in a particular type of position, say accounting positions for example, are not considered applicants.

So, the bottom line here is that until an individual expresses interest in a particular position and follows the precise steps required of persons wishing to apply for the position, they are not an applicant.

You post a resume on one of the major job boards - sorry you are not an applicant.

You send a resume to the Jobs@ 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 their 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 and complete a profile and forward a resume as directed by the hiring organization - congratulations, you are now an applicant!

The ramifications of the government's stance clearly means that the employer has no responsibility to document the demographic information of persons who have not formally applied for a specific job and the demographic information related to these persons 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.

Hidden danger

There is another part of this document that I think many persons may gloss over but that has huge ramifications for the Internet-based hiring process. The document clearly states that:

"All search criteria used are subject to disparate impact analysis - and that 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 (you can read all about this by visiting my website (www.rocket-hire.com) and downloading my recent white paper on qualifications screening). The information quoted above clearly means that if your personnel 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 is not job related and you'd better get on the phone with your attorney because you are wide open for legal action against you.

So the bottom line from the government is that you can feel free to search databases and research candidates till 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 ensuring and demonstrating that the persons who have chosen to apply for the position using the required procedures are representative of the demographic make up of available work population and that no one particular group is underrepresented. You are also clearly held accountable for the job relatedness of any criteria used to make decisions regarding the qualifications of persons choosing to 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 I think it is great that the government has come out and clearly stated what we already knew. However, 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. Or have they…?

Open issues remain

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 some issues that are 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 or she is interested in a job as a nuclear physicist and follows the application procedures required to apply for a job even though they do not meet the minimum qualifications for the job, are they an applicant or not?

Our ambitious plumber has expressed interest and followed the procedures required to apply for the job so by definition they are an applicant. Despite the fact that this person does not meet min quals and have no chance at getting the job, the hiring organization still must document his/her 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 min quals that, hopefully, are job related, the damage is done in terms of the impact of his/her 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 they actually are not. Of course this is an extreme example but none the less 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 their hiring guidelines. After all, the standard for determining the legality of a hiring process, the Uniform Guidelines on Employee Selection Procedures was published in 1978 and last updated in 1980! A lot has happened since then and its only going to get crazier as time goes on.

The bottom line of all this in my opinion, is that 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 who continue to ignore the documentation of the job relatedness of their selection procedures had better make sure their attorney's retainer fees are paid because they may find themselves visiting a courtroom sometime in the near future.