EEOC issues much-delayed definition of 'applicant'

After more than three years of work and many delays, the Equal Employment Opportunity Commission (EEOC) on March 3 announced proposed guidelines crafted by a multi-agency task force that define when a person who applies for a job over the Internet must be considered an "applicant" for civil rights recordkeeping purposes.

To prove compliance with federal discrimination law, covered employers must keep track of applicants' sex and race or ethnic group. The question of "who is a job applicant" for these purposes has vexed employers and their advisers for decades. The growth of the Internet in the late 1990s made it especially challenging for employers to manage their responsibilities in this area.

"Due to the technological ease of sending resumes, an HR professional may literally be swimming in applications from job seekers who have no knowledge of the business and may not be aware their resume was even sent to the particular organization," said Susan R. Meisinger, SPHR, president and CEO of the Society for Human Resource Management (SHRM).

According to the EEOC proposal, published in the March 4 Federal Register, three conditions must be met for an individual to be considered an applicant when using the Internet or other electronic means to express interest in employment: The employer must have taken steps to fill a particular job; the individual must have followed the employer's standard application procedure; and the individual must have expressed interest in the particular position.

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The process that yielded the proposed guidance started in July 2000, when the EEOC, along with the Department of Labor's Office of Federal Contract Compliance Programs, the Department of Justice and the Office of Personnel Management, began to consider whether the 1978 Uniform Guidelines on Employee Selection Procedures (UGESP) and their follow-up guidances issued in 1979 and 1980 needed further clarification in light of the online recruiting boom.

In their 1979 clarification to the UGESP, the agencies defined "applicant" broadly as "a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities."

That definition proved unworkable in electronic recruiting. According to an SHRM public policy statement issued in May 2003, the definition "has resulted in various, ever-changing and inconsistent interpretations."

Announcing the culmination of the multiagency process, EEOC Chair Cari Dominguez said in a statement, "With the daily online transmission of hundreds of thousands of resumes, there is a critical need to provide supplemental guidance that is aimed at protecting the rights of applicants, while relieving employers of onerous recordkeeping requirements."

William A. Osterndorf, president of HR Analytical Services in Greenfield, Wis., is concerned that the proposal is limited to electronic recruiting and that it does not limit the definition of applicant to persons who meet the employer's minimum qualifications for open jobs.

"This was a huge surprise," said Osterndorf regarding the scope of the proposal. "Our expectation, based on conversations and statements made by agency heads, was that this would be a much more encompassing document. Those who have followed the issue for a long time expected this to be a broader document, not just applying to Internet technology."

Other experts expressed similar concerns. Rodney H. Glover, a partner in the Washington, D.C., law firm Wiley Rein & Fielding, said a fourth "minimum qualifications prong" was essential for a useful definition, and he questioned why the proposal needed to be limited to electronic recruiting. "Why couldn't this same definition apply to paper?" wondered Glover.

Members of the public may file comments on the proposal during a 60-day period that began March 4. Wendy Wunsh, manager of employment regulation in SHRM's governmental affairs department, said that SHRM will file comments on the proposed guidance.

"If something is going to happen to help expand this document to make it more valuable for employers, it's going to have to come through SHRM and places like it that can have an impact for multiple employers," said Osterndorf.

For more information on online recuriting, see "Make a Good First Impression" on page 80.

--MARGARET M. CLARK, SPHR

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