Peopleclick Resources. Including information on Peopleclick customer service and support, Peopleclick training schedules for AAPlanner, Paystat, CAAMS, PRI, VMS and RMS, thought leadership, webcasts and webinars, articles and white papers, and other Peopleclick knowledge.

Industry Article: Protecting Your Organization: Who is an Applicant?

By Lisa Harpe, Ph.D., Peopleclick Research Institute

The Internet has brought a whole new dimension to employment recruiting, and with it a host of uncertainties. When thousands of job-seekers can reach employers with bulk emails and resume submittal services, how can beleaguered employers keep track of who really qualifies as an applicant? And if they can't keep track, how can they report accurately to the government on compliance with anti-discrimination regulations?

It is important for an employer to know who qualifies as an applicant for two reasons. First, only an applicant may make a case of discrimination in hiring. Second, an employer must be able to identify the gender and race of all applicants to evaluate whether its hiring practices have an adverse impact on women or minorities. Federal regulations require employers to solicit race and gender information on all applicants and to maintain the records required to show the impact of all selection procedures on women and minorities. . Understanding the definition of an applicant can help employers minimize risk and protect themselves from costly audit defense.

The First Definition
For purposes of complying with anti-discrimination regulations, the first definition of an applicant appeared in 1979 in a series of questions and answers about the 1978 Uniform Guidelines on Employee Selection Procedures (UGESP). The UGESP was developed by several federal agencies [1] ("the UGESP agencies") responsible for enforcing anti-discrimination regulations. This first definition identified two conditions for a person to be considered an applicant:

  1. the individual must indicate an interest in employment; and
  2. the individual must follow an employer's procedures.

However, the Internet's influence drastically changed the concept of 'indicating an interest.' Due to uncertainty about who is an applicant and when to solicit race and gender information from individuals when using Internet recruiting and hiring, the Office of Personnel Management (OPM) requested that the UGESP agencies develop a revised definition of an applicant as it applies to the Internet and electronic technologies.

The Second Definition
In the March 4, 2004, Federal Register, the UGESP agencies presented three conditions for an individual to be considered an applicant in the context of the Internet:

  1. the individual must indicate an interest in employment in a particular position;
  2. the individual must indicate this interest in compliance with the employer's specific procedures; and
  3. the employer must act to fill this position.

The proposed definition limits the number of applicants through the provisions that an individual must apply for a specific position and that the employer must act to fill the position. To the dismay of many businesses and professional groups, the proposed definition does not include a provision for minimum qualifications. However, it does allow for searches, in which case, recruiters could use minimum qualifications as search criteria. The caveat is that searches are subject to adverse impact analysis, and employers are warned against abusing the use of searches to narrow the pool of applicants.

The Third Definition
In the March 29, 2004, Federal Register, the Office of Federal Contract Compliance Programs (OFCCP, part of the Department of Labor) published additional guidelines for federal contractors regarding the definition of an Internet applicant, presenting four conditions, as follows:

  1. the individual must indicate an interest through the Internet or other electronic technology;
  2. the employer must consider the individual for employment in a specific position;
  3. the individual meets advertised, basic qualifications for the position; and
  4. the individual does not withdraw from further consideration for the position.

The OFCCP's definition is more specific than the UGESP agencies' definition, restricting the applicant pool to those individuals who an employer considers for a specific position and those who maintain an interest in the position. Much to the relief of many federal contractors, the OFCCP included a provision for basic qualifications. However, the OFCCP makes it clear that employers should exercise caution and that basic qualifications must be non-comparative, objective and job-related. In addition, employers should advertise these qualifications so everyone is aware of what they require for specific positions.

Questions Raised by These Definitions

  • Should employers use different definitions of an applicant depending on whether electronic or traditional recruiting methods are used?
    As much as these recent definitions have helped describe an applicant, they are limited to the Internet and related electronic technologies. It appears that for traditional paper-based recruiting and hiring processes, employers should continue to use the original 1979 UGESP definition. A possible, unintended consequence of the proposed definition is that employers may choose to use only electronic or only paper application processes to avoid the complication of two different definitions.

  • What do some of these terms really mean?
    There is a lack of semantic clarity around several terms used in the proposed definitions, such as "acts," or "considers." What constitutes an "act" and what does it mean to "consider"? Specific ways to act and consider should be further defined to promote consistent interpretation and application of the definitions.

    Further, what is a basic qualification? If a basic qualification is non-comparative, objective and job-related, is it then a minimum qualification? For example, is two years of experience as a customer service representative a minimum qualification for a customer service position? Why not 3 years or 5 years? Who is setting the standards for these basic qualifications?

  • Should employers use the OFCCP's or the UGESP agencies' definition?
    The OFCCP's definition is more exclusive than the UGESP agencies' definition. Would the same individual be an applicant for purposes of EEOC record-keeping requirements but not for OFCCP requirements? With two definitions, it is possible that the numbers reported would differ depending on which agency was receiving the report.

The OFCCP's definition does not include two of the conditions in the UGESP agencies' definition, namely that an individual must express interest in accordance with the employer's procedures and that the employer must act to fill the position. In addition, the OFCCP does not specify that an individual must indicate an interest in a particular position. Does the OFCCP's definition include those conditions from the UGESP definition? It is our understanding that the OFCCP's conditions are in addition to the three conditions presented by the UGESP agencies. However, that doesn't help employers if each agency expects reports and accountability according to their own definitions.

Recommendations
In light of the differences in the definitions and the confusion still swirling around this topic, employers must take active steps to protect themselves from exposure to audit or charges of discrimination. Faithfully adhering to written policies may be the best defense, since it demonstrates a commitment to apply definitions consistently across positions. Similarly, communicating these policies in clear terms underscores this commitment both internally and externally.

In particular, employers should:

  • Have a clear, written application policy, including a definition of an applicant .
    A critical part of this written policy should be a working definition of an applicant, possibly using the proposed definitions from the UGESP agencies and the OFCCP as talking points. Employers should form an internal taskforce comprised of Human Resource representatives, recruiters, EEO/AA representatives and legal counsel.
  • Save all searches and basic qualifications.
    In the event of an audit, employers must be able to defend their use of search criteria and basic qualifications. Recruiters should make note of the search criteria and document the job-relatedness of searches and basic qualifications.
  • Make sure the application procedure does not discriminate against any demographic group.
    Conduct adverse impact studies on each step including the impact of search criteria and basic qualifications. Employers can evaluate the adverse impact of searches or basic qualifications through internal studies comparing the applicant pool to workforce data, by collecting EEO data on a sample of job seekers and examining the adverse impact on this sample, or by conducting literature reviews to identify any research in professional or trade journals that address the impact of the search criteria or basic qualification.
  • Be consistent.
    Employers must implement application procedures, search criteria, and basic job qualifications consistently within jobs or job groups. Recruiters, Human Resource professionals and hiring managers must be trained on the company's policies and understand the subtleties of applying them.
  • Communicate application policies internally and externally.
    Anyone involved in the application process, including regulatory agencies and potential job seekers, must be informed about these policies. They should be clearly stated in job board postings, on corporate web sites, and anywhere jobs openings are advertised. Staffing agencies working with the company must also understand and enforce the company's policies and procedures.

About the Peopleclick Research Institute
The Peopleclick Research Institute helps organizations comply with federal antidiscrimination regulations, anticipate the findings of audits by government agencies, and monitor the fairness of their employment practices. As authorities on quantitative analysis of equal employment opportunity (EEO), affirmative action (AA) and diversity statistics, the Institute helps organizations, including employers and attorneys, manage risk and promote workforce diversity. A sample of clients includes Lockheed Martin, Home Depot, U.S. Department of Commerce and Duke University. The Peopleclick Research Institute is a division of Peopleclick, Inc.

[1] Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), the Department of Justice (DOJ), and the Office of Personnel Management (OPM)