WHO IS AN "APPLICANT"? FINALLY SOME OFFICIAL GUIDANCE!

By Jonathan Yarbrough
Asheville, N.C.

Several government agencies, including the Office of Federal Contract Compliance Programs (OFCCP), recently issued proposed guidance to employers in determining who is an "applicant" for purposes of compliance with the non-discrimination and affirmative action laws. The proposed guidelines, issued March 4, 2004, are an improvement over some past enforcement positions taken by the agencies. And, although ostensibly intended to address only internet applications, the new guidelines are expected to be useful in other contexts.

The OFCCP, which enforces affirmative action compliance, has been known to take the position that anyone who expresses interest in a position is an "applicant" for purposes of tracking race and sex and performing adverse impact analyses. This position was problematic in the old days of paper applications, but it threatened to create utter chaos when applied to online applications.

Tracking the race and sex of applicants is important when determining whether an employer has adverse impact as well as whether an employer has actually committed unlawful employment discrimination. (It is good to bear in mind that "adverse impact" is only a statistic and does not necessarily prove or disprove actual discrimination.)

Generally, it is in most employers’ interests to keep the applicant pool as small as possible for adverse impact purposes. Normally, an employer will receive many inquiries and applications from individuals who are not remotely qualified for positions. These inquiries and applications can skew the numbers in a way that may raise an unjustified inference of discrimination.

The proposed guidelines provide some relief by placing some limits on who is considered an "applicant." The guidelines provide that, before an individual need be considered an applicant for employment, the following must have occurred:

The first requirement means that the employer must have an actual vacancy that it seeks to fill. This, then, would exclude any individuals who make inquiries or submit applications when there is no job vacancy unless the employer maintains a continuous database of people interested in employment. In the latter case, then everyone selected from the database as the "pool" of candidates for the particular vacancy would be considered an "applicant."

The second requirement means that the individual must have completed each step mandated by the employer as part of the application process. This would require the individual to comply with each step in a timely manner and, arguably, in a complete manner as well. Thus, individuals who miss deadlines or do not submit complete information may be excluded as applicants.

The third requirement may be the most helpful of all. It would exclude from the applicant pool any individual who expresses a general interest in "any" job or a general category of jobs. It would also exclude those who simply post resumes on job bank or personal websites – even if the employer recruits by searching such sites. These individuals do not become "applicants" unless and until the employer contacts them.

Of course, an employer’s consistency in only considering those individuals who meet all the requirements may be necessary to limit the applicant pool as provided by the proposal.

The EEOC is seeking public comment on the proposed guidelines through May 3, 2004. For further information on the proposed guidelines contact any member of the Affirmative Action Practice Group, or the Constangy attorney of your choice.

Please contact attorneys or AAP specialists in our Affirmative Action Practice for assistance. Phone numbers are listed below. In Atlanta, Georgia, Rosemary Lumpkins (Co-Chair) or AAP Specialists, Sylvia Smith or Denise Ellyson; Birmingham, Alabama, Shannon Miller or AAP Specialist, Megan Hensarling; Columbia, South Carolina, Cara Crotty (Co-Chair); Kansas City, Missouri, Kathy Perkins or AAP Specialist, Lisa Schwarzkopf; Macon, Georgia, Kristie Smith or AAP Specialist, Louise Davies; Tampa, Florida, Angelique Lyons; or Winston-Salem, North Carolina, Robin Shea, Kristine Howard, or AAP Specialist, Anne Roediger. --January 2004