[Federal Register Volume 69, Number 43 (Thursday, March 4, 2004)]
[Rules and Regulations]
[Pages 10152-10158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4090]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1607
DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-3
DEPARTMENT OF JUSTICE
28 CFR Part 50
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 300
[OMB Number: 3046-0017]
Agency Information Collection Activities: Adoption of Additional
Questions and Answers To Clarify and Provide a Common Interpretation of
the Uniform Guidelines on Employee Selection Procedures as They Relate
to the Internet and Related Technologies
AGENCIES: Equal Employment Opportunity Commission; Office of Federal
Contract Compliance Programs, DOL; Department of Justice; Office of
Personnel Management.
ACTION: Adoption of Additional Questions and Answers to clarify and
provide a common interpretation of the Uniform Guidelines on Employee
Selection Procedures as they relate to the Internet and related
technologies.
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SUMMARY: The agencies that issued the Uniform Guidelines on Employee
Selection Procedures (UGESP or Uniform Guidelines) (43 FR 38290 et.
seq., August 25, 1978, 29 CFR part 1607, 41 CFR part 60-3, 28 CFR
50.14, and 5 CFR 300.103(c)) have previously recognized the need for an
interpretation of the Uniform Guidelines, as well as the desirability
of providing additional guidance to users and enforcement personnel, by
publishing two sets of Questions and Answers (44 FR 11996, March 2,
1979; 45 FR 29530, May 2, 1980). These Additional Questions and Answers
are intended to provide further guidance in interpreting the Uniform
Guidelines with respect to the Internet and related technologies. This
document solicits public comment on the information collection
requirements in the Additional Questions and Answers.
DATES: This document contains information collection requirements that
have not yet been approved by the Office of Management and Budget. The
Equal Employment Opportunity Commission will publish a document in the
Federal Register announcing the effective date. Submit written comments
on or before May 3, 2004.
ADDRESSES: Comments should be submitted to Frances M. Hart, Executive
Officer, Executive Secretariat, Equal Employment Opportunity
Commission, 10th Floor, 1801 L Street, NW., Washington, DC 20507. The
Executive Secretariat will accept comments transmitted by facsimile
(``FAX'') machine. The telephone number for the FAX receiver is (202)
663-4114. (This is not a toll-free-number.) Only comments of six or
fewer pages will be accepted via FAX transmittal. This limitation is
necessary to assure access to the equipment. Receipt of a FAX
transmittal will not be acknowledged, except that the sender may
request confirmation of receipt by calling the Executive Secretariat
staff at (202) 663-4070 (voice) or (202) 663-4074 (TDD). (These are not
toll-free-telephone numbers.) Copies of comments submitted by the
public will be available for review at the Commission's library, Room
6502, 1801 L Street, NW., Washington, DC 20507 between the hours of
9:30 a.m. and 5 p.m.
FOR FURTHER INFORMATION CONTACT: Carol Miaskoff, Office of Legal
Counsel, U.S. Equal Employment Opportunity Commission at (202) 663-
4637.
SUPPLEMENTARY INFORMATION: This supplementary information section
provides the public with access to the
[[Page 10153]]
information it will need to comment on the Additional Questions and
Answers. It consists of an Introduction, Background on Internet
Recruiting, Additional Questions and Answers, Request for Comments, and
Overview of the Collection of Information.
Introduction
Because of the number and importance of the issues addressed in the
Uniform Guidelines on Employee Selection Procedures, and the dual needs
of providing an interpretation and providing guidance to employers and
other users and Federal personnel who have enforcement
responsibilities, the Equal Employment Opportunity Commission and the
other issuing Federal agencies adopted two sets of Questions and
Answers (44 FR 11996, March 2, 1979; 45 FR 29530, May 2, 1980) to
clarify and interpret the Uniform Guidelines. These UGESP agencies
recognized that it might be appropriate to address additional questions
at a later date. The Additional Questions and Answers included in this
document are intended to clarify how the Uniform Guidelines on Employee
Selection Procedures apply in the context of the Internet and related
technologies. However, this document does not solicit comments on the
Uniform Guidelines.
The Internet and related electronic data processing technologies
have enjoyed an exponential expansion since the late 1990s and now are
established as important recruiting and job-seeking tools.
Characterized by massive amounts of information rapidly transmitted
between job seekers and employers, these technologies encourage
employers and job seekers to explore the labor market broadly and
freely. While the Internet and related technology has transformed
recruitment and job hunting in recent years, our country's employment
nondiscrimination laws, such as Title VII of the Civil Rights Act of
1964 (Title VII) and Executive Order 11246, as amended, continue to
apply to all aspects of employment including recruitment. The advent of
the Internet and related technology raises questions about how to
monitor employment practices when employers and job seekers use online
resources.
In early 1999, concerns about EEO compliance and online recruitment
came to focus on the Uniform Guidelines on Employee Selection
Procedures.\1\ At that time, the Equal Employment Opportunity
Commission (``EEOC'' or Commission) in conjunction with the other UGESP
agencies--the Department of Labor (``DOL''), the Department of Justice
(``DOJ''), and the Office of Personnel Management (``OPM'')--sought
clearance from the Office of Management and Budget (``OMB'') for
UGESP's recordkeeping requirements under the Paperwork Reduction Act.
In 2000, the OMB instructed the EEOC to consult with its sister
agencies and address the ``issue of how use of the Internet by
employers to fill jobs affects employer recordkeeping obligations.''
\2\ The OMB instructed the EEOC, in cooperation with DOL, DOJ, OPM and
OMB, to ``evaluate the need for changes to the questions and answers
accompanying the Uniform Guidelines necessitated by the growth of the
Internet as a job search mechanism.'' This document is the product of
that evaluation. Each agency may provide further information, as
appropriate, through the issuance of additional guidance or regulations
that will allow each agency to carry out its specific enforcement
responsibilities.
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\1\ 29 CFR part 1607 (2002) (EEOC); 41 CFR part 60-3 (2002)
(DOL). For simplicity, citations to UGESP hereinafter are in the
form ``UGESP, Section ----.'' Under this format, for example,
``UGESP Section 3A,'' corresponds with 29 CFR 1607.3A (2002) (EEOC)
and 41 CFR 60-3.3A (2002) (DOL).
\2\ Notice of OMB Action, OMB No. 3046-0017 (July 31, 2000).
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The Uniform Guidelines on Employee Selection Procedures were issued
in 1978 by the EEOC, the Department of Labor, the Department of
Justice, and the Office of Personnel Management under Title VII and
Executive Order 11246. The UGESP serves two major purposes. First, it
addresses certain recordkeeping issues. For example, UGESP describes
the evidence that employers should have available to analyze whether
their employment selection procedures had a disparate impact on
protected groups.\3\ Second, UGESP details methods for validating tests
and selection procedures that are found to have a disparate impact.
Disparate impact is when an employer uses a practice or standard, like
a hiring or promotion requirement or an employment test, that has a
statistically significant disproportionate negative effect on a
protected group, even though the standard or test is not intentionally
discriminatory. Such a practice or standard is unlawful under Title VII
if it is not job-related and consistent with business necessity.
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\3\ This document uses the term ``disparate impact'' rather than
``adverse impact'' because the Civil Rights Act of 1991 refers to
``disparate impact.'' See 42 U.S.C. 2000e-2(k)(1) (2001).
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UGESP states that employers should maintain ``records or other
information which will disclose the impact which its tests and other
selection procedures have upon employment opportunities of persons by
identifiable race, sex, or ethnic group.'' \4\ UGESP provides for
employer self-analysis for disparate impact based on these records or
other information. The Federal agencies that enforce Title VII and/or
Executive Order 11246 may use these records or other information to
investigate disparate impact charges or litigate cases.
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\4\ UGESP, Section 4A.
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UGESP provides for the maintenance of records or other information
on ``applicants.'' A 1979 guidance in Question and Answer format,
issued by the EEOC, DOL and sister UGESP agencies, provides a general
definition of ``applicant.'' \5\ Interpreting the definition of
``applicant'' in the context of the Internet and related electronic
data processing technology is the focus of this document. With this
interpretation, the UGESP agencies are providing guidance about when
employers should identify the race, gender, and ethnicity of their
applicant pool when they use the Internet and related technologies.
This document and the UGESP do not alter, in any way, the legal rights
and responsibilities of employers, applicants and employees under Title
VII and Executive Order 11246, under any legal theory including
disparate impact. The right of applicants or employees to file a charge
or complaint of discrimination, or to file a lawsuit, are unchanged by
UGESP and by this document's discussion of the term ``applicant.''
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\5\ Question and Answer No. 15, Adoption of Questions and
Answers to Clarify and Provide a Common Interpretation of the UGESP,
44 FR 11998 (March 2, 1979). These Questions & Answers were
promulgated without notice and comment.
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The UGESP agencies have collaborated in conducting the evaluation
OMB directed in 2000. This evaluation shows that the Internet and
related technologies have had the effect of encouraging both job
seekers and employers to ``scout the possibilities'' more freely and
casually than in the pre-Internet era due to many factors, including
the broad reach and relative anonymity of the Internet, the
sophisticated capabilities of online and related data processing tools,
and the marginal cost of making more contacts. The scope and speed of
this technology is to be encouraged; it advertises employment
opportunities to a broad audience. Necessary to the effectiveness of
online recruitment, however, is the ability to manage the data that are
received. In light of this new technology, which has created a new
context for the employment market, the agencies have concluded that
they must update the Questions and Answers
[[Page 10154]]
accompanying UGESP. The Questions and Answers below reflect the
agencies' considered judgment in light of the historical understanding
that ``[t]he precise definition of the term `applicant' depends upon
the [employer's] recruitment and selection procedures.'' \6\
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\6\ Id.
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Before summarizing these conclusions, it is important to emphasize
the larger legal context of this discussion. Under Title VII and
Executive Order 11246, as amended, employers and their recruiters are
responsible for ensuring that all aspects of their recruitment and
selection processes are nondiscriminatory. An employer's obligation to
avoid discriminatory practices attaches regardless of the definition of
``applicant.'' Furthermore, employers must select employees without
discriminating ``against any individual * * * because of such
individual's race, color, religion, sex, or national origin.'' 42
U.S.C. 2000e-2(a)(1). Under Title VII, it is unlawful for employers to
fail or refuse to hire on these bases; for employment agencies to fail
or refuse to refer for employment or otherwise discriminate on these
bases; and for labor organizations to exclude from membership, fail to
refer, or to exclude from apprenticeship programs on these bases. 42
U.S.C. 2000e-2.
Background: Internet Recruiting
General Summary
UGESP and the existing interpretive guidance were promulgated in
the late 1970s, when employers and government agencies did not
contemplate the extent to which electronic data processing technology
would be used as a tool in the job market. Currently, these
technologies, most prominently the Internet and the World Wide Web,\7\
have been used extensively for recruitment \8\ and job hunting.\9\
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\7\ With recognition that the Internet and the World Wide Web
are different, this document sometimes uses the terms
interchangeably for purposes of simplicity.
\8\ Online job boards have created a global job market. One
industry-leader provides local content in local languages in 22
countries. Monster's Founder Eyes the Future, Financial Executive,
July 1, 2003, at 20. Fifty-seven percent of companies are choosing
to recruit online as opposed to forty-nine percent in 2000. Getting
the Word Out, Business First, October 25, 2002, at 33. A January
2001 survey by SHRM showed that eighty-eight percent of the HR
managers surveyed reported using Internet job postings. See Suzanne
M. Bruy[egrave]re & William A. Erickson, Cornell U., E-Human
Resources: A Review of the Literature and Implications for People
with Disabilities 12 (2001).
\9\ One job bank reported that its site attracts 2.7 million job
seeker visits each month. Alan J. Liddle, State Restaurant
Associations `Bank' on Power of Internet Recruitment, Nation's
Restaurant News, February 24, 2003, at 8. In 2002, it was reported
that more than eighteen million people per year posted resumes on
one third party provider. Daniel C. Feldman & Brian S. Klaas,
Internet Job Hunting: A Field Study of Applicant Experiences with
Online Recruiting, 41 Human Resource Management 175 (2002). Millions
of resumes are posted on 5,000 smaller job boards. Peter Cappelli,
Making the Most of On-Line Recruiting, Harv. Bus. Rev., March 2001,
at 139, 140; but cf. Feldman, supra, at 182 (Internet job hunting
ranked second in effectiveness to personal contacts and networks).
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Online recruitment enjoyed rapid expansion in the late 1990s. This
period was characterized by the development of huge third-party
databases of resumes and job listings; by 2003, one industry-leader
reported having over 22.5 million resumes in its database.\10\ In
addition, companies as well as many Federal agencies of all sizes now
offer career Web pages as part of their Web sites.\11\
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\10\ Greg Sterling, Click to Open Resume, Hit Delete, Wired
News, at www. wired.com/news/business/0,1367,57264,00.html (February
7, 2003). In 2001 it was reported that there were 110 million job
listings and twenty million ``unique'' resumes on the World Wide Web
at any given time. Skip Corsini, Wired to Hire, Training, June 2001,
at 50.
\11\ According to a 2003 study, ninety-four percent of the
world's largest organizations have ``corporate Careers websites.''
iLogos Research, Global 500 Website Recruiting 2003 Survey, at
www.ilogos.com (2003). Another researcher estimates that eighty-five
percent of companies with more than 500 employees in North America
have ``rudimentary'' or better career sites. Allan Schweyer, Is
Internet Recruiting Working, Recruiters Network, at
www.recruitersnetwork.com/articles/article.cfm?ID=1400. (revised May
14, 2003). See also Bruy[egrave]re & Erickson, supra note 8, at 20-
21 (discussing third-party Internet services that enable small and
medium-sized employers to easily create a career site on their own
Web site in a few minutes for a cost of $1 for a job posting and
$.25 for each resume collected).
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Human resource departments and recruiters using these online
resources have been ``overwhelmed'' with resumes.\12\ For example, it
was reported that a major health care employer received 300,000 online
resumes in one year.\13\ A smaller Pennsylvania employer reported that
it received 6,000 to 8,000 resumes a year before going online, but
began receiving about 24,000 resumes a year since it went online.\14\
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\12\ When a company with more than 100,000 employees implemented
a recruitment campaign in 2002 to increase the number of resumes
received electronically, its monthly resume submissions grew to more
than 2.3 times the average from the year 2000. Ellen Gilbert,
Recruitment Strategies for a Competitive Marketplace, Pharmaceutical
Executive, November 1, 2002, at 134. After commencing recruitment on
the Web, another employer began receiving 20,000 to 40,000 resumes
annually, many of which were unsolicited. Bill Roberts, System
Addresses `Applicant' Dilemma: Web-exclusive Recruiting Process
Takes Compliance Burden Off HR's Shoulders, HR Magazine, Sept. 1,
2002, at 111.
\13\ See Bruyere & Erickson, supra note 8, at 23.
\14\ Pat Curry, Log On for Recruits, IndustryWeek.com, at http:/
/www. industryweek.com/CurrentArticles/asp/articles.asp?ArticleID=919 (October 16, 2000).
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Software systems that scan, sort and track electronic resumes and
related communications are increasingly used to manage this bulk of
information. Such systems are available through third-party Internet
providers or on a customized basis.\15\ Employers and recruiters also
are developing new ways to use this technology for more focused
recruitment, for example, using corporate Web sites and e-mail to learn
more about Web site visitors' interests and experience and then sending
targeted e-mails when vacancies arise.\16\
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\15\ See Cappelli, supra note 9, at 141-142. See also Roberts,
supra note 12.
\16\ See Cappelli, supra note 9, at 140-141 (discussing targeted
online e-Recruiting and relationship building).
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The Internet and its related technologies also have proven to be a
useful tool for people who are looking for jobs. Some studies show that
the Internet is now the second most-popular way to look for technology
and non-technology jobs, with personal networking placing first.\17\
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\17\ National statistics continue to show that word of mouth is
considered the most effective way to find a job. One company's
statistics showed that an average of seventy-six percent of jobs
nationwide are found through networking and only eight percent
through Internet methods. Getting Out the Word, Business First,
October 25, 2002, at 33. Websites are also valuable recruitment
tools. See Bruyere & Erickson, supra note 8, at 21 (``corporate
[w]eb sites have become the primary means students use to research
companies and evaluate career opportunities, replacing company
brochures and annual reports.'')
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The Internet is conducive to casual exploration of employment
opportunities and assessment of the job market. One study shows that
seventy-two percent of people who visit corporate career Web sites are
already employed.\18\ Individuals who visit an employer's career Web
site can often submit a resume or personal profile for multiple jobs
simultaneously.\19\ People also can explore employment opportunities by
using services such as job ``agents'' (i.e., the person identifies the
type of job in which he or she is interested and the ``agent'' e-mails
the individual when a match is found); and ``metasearches'' (i.e.,
searches that extend beyond the job board to other Web sites).\20\
``Passive'' job seekers post resumes online and wait to see if
recruiters or employers seek them out. Other individuals are discovered
by recruiters researching online professional listings and
organizational directories. For some positions, typically in retail or
service environments, people may submit their information
electronically through
[[Page 10155]]
onsite computer kiosks provided by the employer.
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\18\ See Bruy[eacute]re & Erickson, supra note 8, at 19.
\19\ Job seekers report a preference for application methods
that would not require them to re-key resumes. See Feldman & Klaas,
supra note 9, at 188.
\20\ Bruy[eacute]re & Erickson, supra note 8, at 18.
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Job seekers, like employers, complain about the overwhelming amount
of data available on the Internet; some job seekers also complain about
being unable to focus their job searches because some online listings
provide only generalized descriptions of positions.
Internet and Electronic Data Processing Technologies Used for
Recruitment and Selection
Internet-related technologies and applications that are widely used
in recruitment and selection today include:
E-mail: Electronic mail allows for communication of large amounts
of information to many sources with remarkable ease. Recruiters,
employers, and job seekers use e-mail lists to share information about
potential job matches. Recruiters send e-mails to lists of potential
job seekers. These lists are obtained through various sources of
information, such as trade or professional lists and employer Web site
directories. Employers publish job announcements through e-mail to
potential job seekers identified through similar means. Job seekers
identify large lists of companies to receive electronic resumes through
e-mail. E-mail allows all of these users to send the same information
to one recipient or many, with little additional effort or cost.
Resume databases: These are databases of personal profiles, usually
in resume format. Employers, professional recruiters, and other third
parties maintain resume databases. Some third-party resume databases
include millions of resumes, each of which remains active for a limited
period of time. Database information can be searched using various
criteria to match job seekers to potential jobs in which they may be
interested.
Job Banks: The converse of the resume database are databases of
jobs. Job seekers search these databases based on certain criteria to
identify jobs for which they may have some level of interest. Job
seekers may easily express interest in a large number of jobs with very
little effort by using a job bank database. Third-party providers, such
as America's Job Bank, may maintain job banks or companies may maintain
their own job bank through their Web sites.
Electronic Scanning Technology: This software scans resumes and
individual profiles contained in a database to identify individuals
with certain credentials.
Applicant Tracking Systems/Applicant Service Providers: Applicant
tracking systems began primarily to help alleviate employers'
frustration with the large number of applications and resumes received
in response to job postings. They also serve the wider purpose of
allowing employers to collect and retrieve data on a large number of
job seekers in an efficient manner. Whether in the form of custom-made
software or an Internet service, the system receives and evaluates
electronic applications and resumes on behalf of employers. For
example, an employer could have the group of job seeker profiles from a
third party provider's system searched, as well of those received on
its own corporate Web site entered into one tracking system. The system
would then pull a certain number of profiles that meet the employer-
designated criteria (usually a particular skill set) and forward those
profiles to the employer for consideration.
Applicant Screeners: Applicant screeners include vendors that focus
on skill tests and other vendors that focus on how to evaluate general
skills. Executive recruiting sites emphasize matching job seekers with
jobs using information about the individual's skills, interests, and
personality.
Additional Questions and Answers
This document solicits public comment on the information collection
requirements in the Additional Questions and Answers.
Additional Questions and Answers
(94) Q: Do federal employment nondiscrimination laws apply to employers
and other UGESP-covered entities when they use the Internet and related
electronic data processing technologies for recruitment and selection?
A: Yes. Title VII and Executive Order 11246, as amended, apply when
covered employers use the Internet and related electronic data
processing technologies for recruitment and selection. Title VII covers
private and public employers, employment agencies, and labor
organizations as these terms are defined at 42 U.S.C. 2000e; id. at
2000e-16 (Federal Government). Title VII covers discrimination on the
bases of race, color, religion, sex, or national origin. Executive
Order 11246, as amended, which covers Federal Government contractors,
their subcontractors, and their vendors, also prohibits employment
discrimination because of race, color, religion, sex, or national
origin.
(95) Q: Is Internet recruitment, like traditional recruitment, exempt
from UGESP requirements?
A: Yes. As a business practice, recruitment involves identifying
and attracting potential recruits to apply for jobs. Under UGESP,
``recruitment practices are not considered * * * to be selection
procedures,'' \21\ and the UGESP requirements geared to monitoring
selection procedures do not apply. Just as recruiters traditionally
researched paper copies of professional and employer publications and
listings to identify potential recruits, so recruiters now search huge
bodies of information online--which include new resources such as
personal Web sites and a variety of resume databases--for the same
purpose. Online recruitment also involves organizing the search results
into usable formats.
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\21\ UGESP, Section 2C.
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(96) Q: For recordkeeping purposes, what is meant by the term
``applicant'' in the context of the Internet and related electronic
data processing technologies?
A: The term `applicant' is discussed in the 1979 set of questions
and answers promulgated by the agencies to clarify and provide a common
interpretation of UGESP.\22\ Question & Answer 15 of that publication
states:
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\22\ Question and Answer No. 15, Adoption of Questions and
Answers to Clarify and Provide a Common Interpretation of the UGESP,
44 FR 11998 (March 2, 1979).
The precise definition of the term `applicant' depends upon the
user's recruitment and selection procedures. The concept of an
applicant is that of a person who has indicated an interest in being
considered for hiring, promotion, or other employment
opportunities.\23\
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\23\ Id.
In order for an individual to be an applicant in the context of the
Internet and related electronic data processing technologies, the
following must have occurred:
(1) The employer has acted to fill a particular position;
(2) The individual has followed the employer's standard procedures
for submitting applications; and
(3) The individual has indicated an interest in the particular
position.
To elaborate on the three prongs of this test:
(1) The employer has acted to fill a particular position.
An example under the first prong is:
Example A: Individuals who register online for Customer Service
Representative positions with an Internet and cable television service
provider are asked to complete online
[[Page 10156]]
personal profiles for the employer's resume database. The company acts
to fill two vacancies at its Greater New York Service Center, and
identifies 200 recruits from the database who have indicated that they
are available to work in the New York area. One hundred of these people
respond affirmatively and timely to the employer's inquiry about
current interest in the particular New York vacancies. Even if the
employer chooses to interview only 25 people for the position, all 100
are UGESP ``applicants.''
(2) The individual has followed the employer's standard procedures
for submitting applications.
If everyone who applies online must complete an online personal
profile, only those individuals who do so can be UGESP applicants. If
job seekers must use an electronic kiosk or contact a store manager to
apply for a sales position, only those who do so can be UGESP
applicants. If an employer e-mails online job seekers to ask if they
are currently interested in a particular vacancy, only those who meet
the employer's deadline can be UGESP applicants. These procedures and
directions must be nondiscriminatory because recruitment and the
application processes are subject to Title VII and Executive Order
11246.
(3) The individual has indicated an interest in the particular
position.
The core of being an ``applicant'' is asking to be hired to do a
particular job for a specific employer. An individual can only
accurately assess her interest in an employment opportunity of which
she is aware.
With respect to Internet recruiting, this means that people who
post resumes in third party resume banks or on personal Web sites are
not UGESP ``applicants'' for all employers who search those sites. By
posting a resume, the individual is advertising her credentials to the
world and indicating a willingness to consider applying for new
positions that may be brought to her attention. The individual is not
indicating an interest in a particular position with a specific
employer. If an employer contacts this individual about a particular
position after finding her resume or personal profile online, and the
individual indicates an interest in that position, then the individual
becomes a UGESP ``applicant,'' if she also meets the second prong of
the test set forth above. Similarly, if an employer contacts an
individual about a particular position in response to an unsolicited
resume submitted online, and the individual indicates an interest in
that position, then the individual becomes a UGESP ``applicant'' if she
also meets the second prong of the test.
Furthermore, even if the individual expresses an interest in a
whole category of positions in response to an employer's solicitation--
for example, marketing opportunities--the individual is not an
applicant but is identifying the kinds of positions in which she may be
interested. She is not indicating an interest in a particular position
with a specific employer. It is only with respect to a particular
position that an individual can assess her interest and choose whether
or not to apply.
If an individual submits a resume or personal profile repeatedly to
the same employer (for example, by adding numerous online job listings
to her ``shopping cart'') or simply sends resumes (for example, by
using automated online tools that identify job listings and submit
resumes), the individual again is identifying the kinds of positions in
which she is interested and is not automatically an applicant.
In certain circumstances, however, actions by a job seeker in
response to an employer-hosted job listing will display hallmarks of an
actual, individual assessment of interest in a particular position that
the employer is acting to fill. For example, a job seeker's interest in
a particular position becomes evident when the job seeker complies with
an employer's procedural requirements that are unique to that position.
Thus, completion and submission of an electronic application form,
which form is unique for a particular position, indicates that the job
seeker has a specific interest in that particular position.
Example B: Game Park is hiring park rangers, who perform specified
duties and receive a starting salary within a particular range. Game
Park posts an announcement on its Web page stating that it is accepting
applications for its next park ranger training class, which starts in
six months, and that all people who complete the required forms within
one month will be evaluated for entrance into the class. Job seekers
are directed to complete a detailed questionnaire asking about their
experience in wildlife management, forest fire prevention, firearm
safety and first aid. This profile is only suitable for the position of
park ranger; it cannot be used for other Game Park positions. When
these profiles are compiled into a database, all of the job seekers
will be ``applicants'' if they satisfy the second prong of the above-
referenced test.
(97) Q: Are all the search criteria that employers use subject to
disparate impact analysis?
A: Yes. All search criteria used are subject to disparate impact
analysis. Disparate impact analysis can be based on Census or workforce
data. If a disparate impact is shown, the employer must demonstrate
that its criteria are job-related and consistent with business
necessity for the job in question. 42 U.S.C. 2000e-2(k).
Example C: An employer has two large printing plants. The company's
employment Web page encourages individuals who visit to register to be
considered as printers by submitting personal profiles online. Some
basic identifying information is required, and one question asks for
total years of printing experience.
The employer authorizes the hiring of three new printers at one of
the plants. To identify job seekers, Human Resources turns to several
resources including its internal database. Even before it identifies
those who properly followed the employer's online procedures and who
are actually interested in these positions at this time, the employer
searches the database to identify job seekers with two years printing
experience. The search identifies 120 individuals, of whom only 50
express an interest in the positions and followed all the application
procedures. These 50 people are UGESP applicants.
However, the impact of the employer's screen for two years'
printing experience can be analyzed using workforce and Census data.
For example, the experience requirement could be assessed based on
relevant labor force statistics. If a disparate impact on a protected
group were shown, then the employer would have to show that two years
of experience was job-related and consistent with business necessity
for its printing positions.
(98) Q: Are employment tests, including those administered online,
subject to UGESP?
A: Yes. Online tests, including tests of specific or general
skills, are selection procedures rather than recruitment under UGESP
because the test results are used as ``a basis for making employment
decisions.'' \24\ Employers and recruiters who use such tests should
maintain records or other information ``which will disclose the impact
which its tests * * * have upon employment opportunities of
[[Page 10157]]
persons by identifiable race, sex or ethnic group.'' \25\ If employment
tests have a disparate impact, they are lawful only if they are ``job-
related for the position in question and consistent with business
necessity.'' 42 U.S.C. 2000e-2(k)(1)(A)(i).
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\24\ UGESP, Section 2C.
\25\ UGESP, Section 4A.
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Request for Comments
The UGESP agencies invite comments about these Additional Questions
and Answers from all interested parties, as well as comments enabling
the agencies to:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agencies, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies' estimate of the burden
of the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of Collection
Collection Title: Recordkeeping Requirements of the Uniform
Guidelines on Employee Selection Procedures, 29 CFR part 1607, 41 CFR
part 60-3, 28 CFR part 50, 5 CFR part 300.
OMB Number: 3046-0017.
Type of Respondent: Businesses or other institutions; Federal
Government; State or local governments and farms.
North American Industry Classification System (NAICS) Code:
Multiple.
Standard Industrial Classification Code (SIC): Multiple.
Description of Affected Public: Any employer, Government
contractor, labor organization, or employment agency covered by the
Federal equal employment opportunity laws.
Respondents: 865,962 firms are included in the affected public,
according to U.S. Census statistics.
Responses: 865,962.
Reporting Hours: 2,548,573.97.
Number of Forms: None.
Form Number: None.
Frequency of Report: None.
Abstract: The recordkeeping issues addressed by UGESP are used by
respondents to assure that they are complying with Title VII and
Executive Order 11246; by the Federal agencies that enforce Title VII
and/or Executive Order 11246 to investigate, conciliate and litigate
charges of employment discrimination; and by complainants to establish
violations of Federal equal employment opportunity laws.
Burden Statement: There are no reporting requirements associated
with UGESP. The only paperwork burden derives from the recordkeeping.
With respect to paperwork burden, the Additional Questions and Answers
would present a solution to problems employers currently face in
applying the Guidelines on Employee Selection Procedures in the context
of the Internet and related technologies. Therefore, the Additional
Questions and Answers would not involve an increase in paperwork
burdens associated with attempts to apply existing guidelines to the
context of the Internet and related technologies.
Only employers covered under Title VII and Executive Order 11246
are subject to UGESP. For the purpose of burden calculation, employers
with 15 or more employees are counted. Based on examination of the
latest available U.S. Census Bureau firm data, the number of firms in
this category is approximately 865,962. According to figures based on
statistics from the U.S. Census Bureau, the total number of employees
employed by firms in this category is 117,957,331. Assuming one record
per employee, this results in 117,957,331 records. Additionally,
statistics from the Bureau of Labor Statistics indicate that the number
of individuals, both employed and unemployed, actively seeking
employment from all employers, total 14 million. Assuming that each of
these individuals submits on average five applications, this results in
70 million potential records from a recordkeeping perspective.
Therefore, the total number of records reflecting employees employed by
firms and all job seekers is 187,957,331.
From the private employer survey the Commission conducts, it
determined that 80 percent of the private employers file their
employment reports electronically. From this same survey the Commission
also learned that when records are computerized, the burden hours for
reporting, and thus for recordkeeping, are about one-fifth of the
burden hours associated with non-computerized records. Further, the
Additional Questions and Answers apply to the Internet and related
electronic data processing technologies, which involves computerized
recordkeeping.
The Additional Questions and Answers would clarify how employers
should address applicant recordkeeping in the context of the Internet
and related technologies. In the absence of such clarification,
employers would be faced with significant, additional paperwork burdens
based on the rapid expansion of the Internet and related technologies
for recruiting. The Commission is unaware of any systematic data to
accurately quantify the burdens associated with how employers were
attempting to address applicant recordkeeping in the Internet context
prior to this clarification. The Commission will be in a better
position to assess these issues after the additional Questions and
Answers have been implemented. At this time, the Commission assumes
that, with this clarification, the basis for the estimate of the cost
per record has not changed since the initial burden calculations in
1979. Inflation adjustments would derive a current cost per record
(manual recordkeeping) of $0.56 and current cost per record
(computerized recordkeeping) of $0.11.
The number of burden hours can be obtained by dividing the total
cost of recordkeeping by the hourly cost of labor needed to collect and
compile such data.
The current cost per hour of personnel for UGESP recordkeeping is
$14.75/hr (hourly rate for personnel clerks from BLS compensation
survey).
Computerized recordkeepers = (.80) x (187,957,331) x ($0.11) =
$16,540,245.12
Manual recordkeepers = (.20) x (187,957,331) x ($0.56) =
$21,051,221.07
Total recordkeeping cost = $37,591,466.19
[GRAPHIC] [TIFF OMITTED] TR04MR04.000
[[Page 10158]]
Signed at Washington, DC, on February 24, 2004.
Cari M. Dominguez,
Chair, Equal Employment Opportunity Commission.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards, Department of Labor.
R. Alexander Acosta,
Assistant Attorney General, Civil Rights Division, Department of
Justice.
Kay Coles James,
Director, Office of Personnel Management.
[FR Doc. 04-4090 Filed 3-1-04; 1:53 pm]
BILLING CODE 6570-01-P