Internet Applications: Guard Yourself Against Claims of Discrimination in the Hiring Process

For years, employers have been using the Internet as a means of attracting qualified applicants to their companies. Sites such as Montster.com and Careerbuilder.com have been used in conjunction with internal sites, email, and other electronic means of collecting data. In its continued effort to eliminate unlawful discrimination in the hiring process, the Department of Labor (DOL) has issued a new rule regarding the retention of records for Internet Applicants. The new rule goes into effect on February 6, 2006. While this new rule applies only to Federal Contractors, the Equal Employment Opportunity Commission (EEOC) is considering the adoption of similar guidelines for the private sector. Therefore not only will employers who implement the new DOL procedures be ready if the EEOC comes knocking, but having such procedures in place gives an employer an effective risk management tool for minimizing potential claims of unlawful hiring practices based on discrimination, as well as a valid defense if such a claim is brought.

Certain discrimination claims must be filed with the EEOC as a prerequisite to bringing a private lawsuit. In 2003, tens of thousands of claims were filed with the EEOC. While most of those claims were litigated in the private sector, the EEOC undertook to file hundreds of suits on behalf of both the government and private individuals against private employers. 14.1% of all suits filed in 2003 by the EEOC were based on claims of unlawful discrimination in the hiring process. These numbers outline the very real threat employers face when it comes to claims of discrimination during the hiring process.

Under the new DOL rule, covered employers have to determine if the applications they are receiving are "Internet applications," as defined in the rule. If so, the new rule guides employers on how long they must retain these applications and the information procured. The following is an overview of the new rule and its application.

"Internet Applicant" is defined as follows:

The individual submits an expression of interest in employment through the Internet or related electronic data technologies.
The contractor considers the individual for employment in a particular position.
The individual's expression of interest indicates the individual possesses the basic objective qualifications for the position; and
The individual at no point in the contractor's selection process prior to receiving an offer of employment from the employer removes him or herself from further consideration or otherwise indicates the he or she is no longer interested in the position.

The rule is designed to effectively evaluate whether federal contractors are recruiting a diverse pool of qualified applicants and hiring new employees on a non-discriminatory basis. By requiring employers to keep records of Internet applications, and by defining the term Internet Applicant, the DOL is better able to monitor whether there is a pattern of discrimination.

The four-pronged test also guides employers on how, and whether, to apply the rule. First, the rule requires an applicant's expression of interest, or his/her application/resume must express that they have the pre-established basic qualifications for the job.

If done properly, performance appraisals can help the company and the employee increase satisfaction, productivity, and professional growth.

Under the second prong, the applicant must be applying for a specific position and the employer, upon reviewing that application, will make a determination as to whether or not the applicant meets the basic requirements for the job as posted. This process, taken together, means that if it is determined that the applicant meets all of the contractor's basic qualifications, a record of their expression of interest must be kept.

The third prong requires that the individual's expression of interest indicate the individual possesses the basic objective qualifications for the position. The employer will evaluate each applicant based upon all the qualifications set forth for the position applied. Employers must be sure the qualifications they use are acceptable under the rule.

When establishing qualifications for a position, the rule also provides that the qualifications should be objective, non-comparative, and relevant to the job. One example of a non-comparative qualification is 5 years of banking experience. This is non-comparative because there is an objective, set qualification. It is measurable because all applicants with 5 years banking experience meet the qualification. A comparative qualification would be something subjective, such as "the top five applicants who have the most experience will be considered for the position." This is the type of vague qualification the rule prohibits.

Objective requirements are those requirements that do not require a value judgment. If the requirement is that an applicant have a 4 year degree in Engineering, then the hiring party need not make any further inquiry other than whether or not the applicant has that degree. If, however, the requirement was that the applicant have a 4 year degree from a good school, the hirer would then have to determine in his/her judgment if the school the applicant attended was good or not. This is subjective and prohibited under the rule.

To ensure objectivity, employers searching for qualified applicants online should establish the job description and qualifications ahead of time so that claims of discrimination are avoided and the risk of penalty minimized.

Finally, employers must keep records of Internet Applicants unless they have made a direct expression of disinterest or through a passive expression of disinterest. If an applicant had notified the employer that they were no longer interested in the position, then the employer would not have to maintain a record of that application. The same applies if the applicant has passively expressed disinterest by repeatedly not responding to inquiries about his/her interest in the position. If the applicant does any of these things, the employer may conclude that they are no longer interested in the position. In all other cases, the record of the applicant must be kept.

Additionally, the DOL has made a major reversal with regard to the collection of certain information about applicants. The DOL now requires all Federal Contractors make an effort to obtain the race, gender and ethnicity of applicants, for record keeping purposes only. This rule does not apply to private employers and at this time there is no basis for requiring Internet Applicants to disclose this information in a private employment setting.

In conclusion, employers who adopt the provisions of this rule will be guarding against potential claims of unlawful hiring practices. While this rule presently applies only to Federal Contractors, as a matter of law, private employers who utilize these procedures, will be able to demonstrate an objective, documented hiring process in the event they are presented with claims of unlawful hiring practices.

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For years, employers have been using the Internet as a means of attracting qualified applicants to their companies. Sites such as Montster.com and Careerbuilder.com have been used in conjunction with internal sites, email, and other electronic means of collecting data. In its continued effort to eliminate unlawful discrimination in the hiring process, the Department of Labor (DOL) has issued a new rule regarding the retention of records for Internet Applicants. The new rule goes into effect on February 6, 2006. While this new rule applies only to Federal Contractors, the Equal Employment Opportunity Commission (EEOC) is considering the adoption of similar guidelines for the private sector. Therefore not only will employers who implement the new DOL procedures be ready if the EEOC comes knocking, but having such procedures in place gives an employer an effective risk management tool for minimizing potential claims of unlawful hiring practices based on discrimination, as well as a valid defense if such a claim is brought. Certain discrimination claims must be filed with the EEOC as a prerequisite to bringing a private lawsuit. In 2003, tens of thousands of claims were filed with the EEOC. While most of those claims were litigated in the private sector, the EEOC undertook to file hundreds of suits on behalf of both the government and private individuals against private employers. 14.1% of all suits filed in 2003 by the EEOC were based on claims of unlawful discrimination in the hiring process. These numbers outline the very real threat employers face when it comes to claims of discrimination during the hiring process. Under the new DOL rule, covered employers have to determine if the applications they are receiving are "Internet applications," as defined in the rule. If so, the new rule guides employers on how long they must retain these applications and the information procured. The following is an overview of the new rule and its application. "Internet Applicant" is defined as follows: The individual submits an expression of interest in employment through the Internet or related electronic data technologies. The contractor considers the individual for employment in a particular position. The individual's expression of interest indicates the individual possesses the basic objective qualifications for the position; and The individual at no point in the contractor's selection process prior to receiving an offer of employment from the employer removes him or herself from further consideration or otherwise indicates the he or she is no longer interested in the position. The rule is designed to effectively evaluate whether federal contractors are recruiting a diverse pool of qualified applicants and hiring new employees on a non-discriminatory basis. By requiring employers to keep records of Internet applications, and by defining the term Internet Applicant, the DOL is better able to monitor whether there is a pattern of discrimination. The four-pronged test also guides employers on how, and whether, to apply the rule. First, the rule requires an applicant's expression of interest, or his/her application/resume must express that they have the pre-established basic qualifications for the job. *If done properly, performance appraisals can help the company and the employee increase satisfaction, productivity, and professional growth.* Under the second prong, the applicant must be applying for a specific position and the employer, upon reviewing that application, will make a determination as to whether or not the applicant meets the basic requirements for the job as posted. This process, taken together, means that if it is determined that the applicant meets all of the contractor's basic qualifications, a record of their expression of interest must be kept. The third prong requires that the individual's expression of interest indicate the individual possesses the basic objective qualifications for the position. The employer will evaluate each applicant based upon all the qualifications set forth for the position applied. Employers must be sure the qualifications they use are acceptable under the rule. When establishing qualifications for a position, the rule also provides that the qualifications should be objective, non-comparative, and relevant to the job. One example of a non-comparative qualification is 5 years of banking experience. This is non-comparative because there is an objective, set qualification. It is measurable because all applicants with 5 years banking experience meet the qualification. A comparative qualification would be something subjective, such as "the top five applicants who have the most experience will be considered for the position." This is the type of vague qualification the rule prohibits. Objective requirements are those requirements that do not require a value judgment. If the requirement is that an applicant have a 4 year degree in Engineering, then the hiring party need not make any further inquiry other than whether or not the applicant has that degree. If, however, the requirement was that the applicant have a 4 year degree from a good school, the hirer would then have to determine in his/her judgment if the school the applicant attended was good or not. This is subjective and prohibited under the rule. To ensure objectivity, employers searching for qualified applicants online should establish the job description and qualifications ahead of time so that claims of discrimination are avoided and the risk of penalty minimized. Finally, employers must keep records of Internet Applicants unless they have made a direct expression of disinterest or through a passive expression of disinterest. If an applicant had notified the employer that they were no longer interested in the position, then the employer would not have to maintain a record of that application. The same applies if the applicant has passively expressed disinterest by repeatedly not responding to inquiries about his/her interest in the position. If the applicant does any of these things, the employer may conclude that they are no longer interested in the position. In all other cases, the record of the applicant must be kept. Additionally, the DOL has made a major reversal with regard to the collection of certain information about applicants. The DOL now requires all Federal Contractors make an effort to obtain the race, gender and ethnicity of applicants, for record keeping purposes only. This rule does not apply to private employers and at this time there is no basis for requiring Internet Applicants to disclose this information in a private employment setting. In conclusion, employers who adopt the provisions of this rule will be guarding against potential claims of unlawful hiring practices. While this rule presently applies only to Federal Contractors, as a matter of law, private employers who utilize these procedures, will be able to demonstrate an objective, documented hiring process in the event they are presented with claims of unlawful hiring practices.
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