Labor Logic

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John D. Finerty, Jr.

The U.S. Equal Employment Opportunity Commis-sion is the federal agency charged with investigating employment discrimination claims and enforcing federal discrimination laws, such as Title VII of the Civil Rights Act of 1964. The agency is also responsible for issuing regulations that govern human resource practices and employment policies. The EEOC recently issued new written guidelines for employers that accept job applications online. The guidelines and recent enforcement data are the latest information released by an important federal agency that employers should monitor to stay in compliance with the law.
Record Keeping Guidance

The EEOC published new guidelines that clarify how employers must track Internet applications for the purposes of complying with federally mandated record keeping requirements. The federal government defines an “applicant” as any person who has expressed an interest in being considered for hiring, promotion or other employment opportunities. The employee may express an interest orally or by completing a job application, depending on the employer’s practice. Many employers, however, have moved to accepting job applications online; job boards or resume banks are also a growing source for employers to obtain information on applicants.

According to the agency, in order for an individual to be an applicant in the context of the Internet and related electronic processing technologies, the following must have occurred: the employer has acted to fill a particular position; the individual applicant has followed the employer’s standard procedures for submitting applications; and, the individual has indicated an interest in the particular position.

These requirements do not change how employers treat job applications filled out in person or received in the mail. The new record keeping guidance apply exclusively to the internet and related technologies, including internet resume banks and job boards, employers’ websites, resume databases and online job listings.

The effect on employers is as follows. Many online databases are searchable using specified criteria — that is, employers may search for applicant resumes or sort job applications on the basis of education, experience or other credentials. The guidelines make clear that using search criteria to determine which applicants should be considered for employment is subject to a disparate impact analysis (disparate impact is the use of a neutral employment policy or criteria that unintentionally treats a protected class of individuals differently).

If an employer selects resumes with only certain college degrees or from specified locations, for example, the employer should be able to justify the criteria as job related and consistent with business necessity. Further, employers may also consider adopting a job application policy, or amending a current policy, to include procedures to handle internet applications and cross reference any search criteria with existing job descriptions.

2003 Enforcement Data

The EEOC’s fiscal year ran from October 2002 through September 2003. The EEOC tracks discrimination claims on the basis of race, gender, age, disability and other protected classifications. For the 2003 fiscal year, the agency accepted 81,293 discrimination charges filed against private sector employers nationwide.

Data released by the EEOC discloses a few interesting trends. Of the more than 81,000 charges filed, about one-third, or 35 percent, were race discrimination charges. Gender and age were the next two most frequently cited bases for discrimination; disability, on the other hand, was the fastest growing category in recent years, comprising approximately 19 percent of the total charges. In an era of layoffs, plant closings and other cutbacks, it is no surprise age discrimination has made a bit of a comeback.

Data on the disposition of these charges is also telling. More than 63 percent of the charges investigated were deemed to have “no reasonable cause” or no merit. An additional 19 percent of the charges resulted in “administrative closures” which means the agency dismissed the claim for some other reason; those reasons could include the absence of jurisdiction or non-responsiveness of the charging party. In 20 percent of the charges filed, the EEOC reached a favorable outcome for the charging party. In other words, one in five discrimination charges were resolved in favor of the employee.

For more information on discrimination charges, consult the EEOC’s website at www.EEOC.gov or contact John D. Finerty, Jr. at Michael Best & Friedrich at (414) 225-8269 or on the internet at [email protected].