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Publication

April 2, 2004Client Alert

EEOC’s New Guidelines Require Employers to Track Certain Internet Applicants

On March 4, 2004, the Equal Employment Opportunity Commission ("EEOC"), in conjunction with other federal agencies, issued proposed guidelines that clarify when an employer must consider an individual who submits an Internet resume as an "applicant" for the purposes of federally-mandated recordkeeping, as proscribed in the Uniform Guidelines on Employee Selection Procedures ("UGESP"). The UGESP currently defines an "applicant" as a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities. This interest may be expressed orally or by completing an application form, depending on the employer's practice.

By the late 1990s, the emergence of the "Internet applicant" forced employers to make potentially costly recordkeeping decisions based on a definition of "applicant" that never accounted for Internet recruiting. For instance, in 2001, an article by Skip Corsini in Wired to Hire reported that there were 110 million job listings and 20 million "unique" resumes on the Internet at any given time. Yet, employers report that many of the resumes they receive via the Internet are unsolicited, not in response to any advertisement, or part of a third-party database. The EEOC's proposed guidelines offer a three-prong test to determine which of the "Internet applicants" must be considered "applicants" for federal record keeping purposes. In order to be considered an applicant, the following must have occurred: (1) the employer has acted to fill a particular position; (2) the "Internet applicant" has followed the employer's standard procedures for submitting applications; and (3) the "Internet applicant" has indicated an interest in the particular position.

In addition to clarifying the definition of "applicant" as it is applied to "Internet applicant", the EEOC's proposed guidelines create two significant issues for employers who utilize resume databases or on-line tests. The proposed guidelines clearly state that an employer's use of database search criteria to determine which applicants should be considered for employment is subject to a disparate impact analysis. Therefore, if an employer pulls from its database only those resumes that list five years of work experience or more, and that requirement of work experience has a disparate impact on a protected class, then the employer must be able to show that the work experience requirement is job-related and consistent with business necessity. The same disparate impact analysis is used for any on-line test the employer may use to help determine which applicant is best suited for employment.

Employers, if they have not already done so, are urged to develop a policy dictating how they handle and record Internet applicants. The policy, at minimum, should include procedures for screening Internet applicants and for using database criteria to sort Internet applicants.

For further information concerning the implications of the EEOC's proposed guidelines, please contact Brian P. Paul at 312.527.6843, or bppaul@michaelbest.com.

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