On March 4, 2004, the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), the Civil Rights Division of the U.S. Department of Justice and the Office of Personnel Management proposed a long-awaited guidance defining a job applicant for whom employers must collect demographic data in the context of internet and e-mail hiring. The guidance is now subject to a 60-day comment period. Issued in question and answer form, the guidance states that for an individual to be an applicant in the context of internet and related electronic technologies the employer must have acted to fill a particular position; the individual must have followed the employer’s standard procedures for submitting applications; and the individual must have indicated an interest in the particular position. The agencies provided a few examples to show how they plan to interpret these elements in certain contexts, including online testing and screening of electronic resume databases.
Since 1978, employers have been required to record the race, gender and ethnicity of "applicants" under the Uniform Guidelines on Employee Selection Procedures (UGESP). The EEOC and the OFCCP use such data to determine, among other things, whether the employer’s selection procedures have a disparate impact, i.e., disqualify a disproportionate percentage of minorities or females. Essentially, any procedure that disqualifies an applicant is considered a "test" and a test that has a disparate impact must be "validated," a costly and time-consuming process. Since 1979, the government stated that an applicant is defined in terms of an employer’s recruitment and selection procedures, but that the concept is that of "a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities."
This was a relatively simple task when applicants appeared at the employer’s location to fill out an application form. However, computer technology permits individuals to e-mail unsolicited resumes to employers. Many employers actively recruit electronically through the internet, e-mail, job banks and electronic databases and using electronic scanning and profiling technology. Employers found it impossible to identify the race, gender and ethnicity of the applicants they never saw. Further, employers objected to the significant burdens and potential legal exposure involved in reaching out to ask individuals who electronically expressed interest in a position (particularly if there was no open position at the time) to provide such sensitive personal information.
The guidance, if finalized in its current form, may not significantly lessen the burden or risk for employers. In fact, whereas previously employers could argue with some effect that the EEOC or the OFCCP was seeking data the employer was not obligated to record, following the issuance of the final version of the guidance employers can expect the EEOC and the OFCCP to be much more rigid and demanding when requesting such applicant data.