Is the OFCCP's take on the internet applicant rule outdated?

A recent Q & A from the “Workologist” column in the New York Times caught my eye.

Cara Crotty

The correspondent was asking how to ensure that a résumé submitted online actually gets reviewed by the hiring company.  That is a legitimate concern – after all, organizations are inundated with job seekers when positions are posted, and recruiters can’t always physically review every application.

It was Rob Walker’s response that piqued my interest:

Lots of employers now rely on computerized systems that scan résumés for particular terms as an initial step in (drastically) narrowing down which candidates they will consider.  “Résumé optimization” is jargon for what has become a routine practice among many job seekers:  creating – or “optimizing” – a résumé with this powerful, nonhuman audience in mind.

From a practical point of view, of course employers should be using whatever technology is available to ensure that the best candidates go to the top of the stack.  Why wouldn’t a rational employer implement such time-saving and “optimizing” resources?

But if the employer is a federal contractor, this kind of technology could land it in hot water during a compliance review by the Office of Federal Contract Compliance Programs.

In 2006, the OFCCP issued its definition of an "internet applicant” to help contractors deal with the exorbitant numbers of online applications received (as contrasted with the old pen-and-paper applications). An individual is an "internet applicant" if he or she meets the following criteria:

(1) the individual submitted an expression of interest through the Internet or related data technologies;

(2) the contractor considered the individual for employment in a particular position;

(3) the expression of interest indicated that the individual met the basic qualifications for the position; and

(4) the individual did not withdraw from the process before receiving an offer of employment.

Only those individuals who meet all four elements are counted as "applicants" for purposes of conducting impact ratio (adverse impact) analyses, as federal contractors must do.

Relevant to our discussion today is the second element of the definition – “considered.”  The regulations provide that an employer “considers” an individual if it assesses the substantive information provided in the expression of interest.  Contractors who receive hundreds of applications for each position aim to limit the number of candidates they “consider” to reduce the potential for adverse impact in their hiring analyses.

Job Applications.JeanMichelGauthier.flickrCC.tedxbitspilanidubai
"Because the company doesn't want to have to include you in its adverse impact analysis, silly!"

This is where the technology of searching résumés comes into play.  If a contractor can quickly locate those résumés that have the most potential of meeting the basic qualifications for the job, it can limit the number of other résumés that it considers. Right?

Uh, no. In its FAQs on this subject, here is what the OFCCP says about using search terms to assess candidates’ qualifications:

Q:  A contractor uses software to search a large resume database for job seekers who are the "best fit" for the qualifications required for a particular position. The software uses a "hit" feature that identifies and ranks candidates who best match the job qualification search criteria. Is the software a data management technique such that resumes reviewed by the software have not been considered for a particular position?

A:  No. A job seeker is "considered" for employment in a particular position if the contractor assesses the substantive information provided in the resume with respect to any qualification involved with the particular position. The software reviews job seekers' qualifications and ranks job seekers based not merely on whether they possess the basic qualifications but on an assessment of the extent to which they possess those qualifications vis-à-vis other candidates. Consequently, the resumes of job seekers reviewed by the software have been considered for a particular position under the Internet Applicant rule. Section 60-1.3(3) of the Internet Applicant rule explains that only data techniques that do not depend on an assessment of qualifications, such as random selection, are treated as data management techniques rather than consideration under the Internet Applicant rule.

Yikes!  Using sophisticated software to find the best candidates and to make your job easier will render all of the searched résumés “considered.”  This could significantly increase the number of applicants who must be counted and included in your adverse impact analysis.

The OFCCP's definition of "internet applicant" puts federal contractors in a dilemma: Do they review applications in the order in which they were received (or other random process) and select the first person who satisfies the basic qualifications, thereby decreasing their potential exposure for adverse impact but making the search process less efficient? Or do they take advantage of technology to find the best candidates in the pool but increase their potential for adverse impact and monetary liability?

It is time for the OFCCP to revamp these outdated (and non-regulatory) FAQs. Organizations should not be penalized for seeking to hire the most qualified individuals who apply, and technology that makes this process easier should be welcomed. This is yet another example where the OFCCP forces companies to choose between a common-sense, practical solution to a business concern versus complying with an illogical governmental edict.

Image credits: Photo of Jean Michel Gauthier from flickr, Creative Commons license, by tedexbitspilanidubai.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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