[Federal Register Volume 69, Number 43 (Thursday, March 4, 2004)]
[Rules and Regulations]
[Pages 10152-10158]
From the Federal Register Online via the Government Printing 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).
---------------------------------------------------------------------------

    \24\ UGESP, Section 2C.
    \25\ UGESP, Section 4A.
---------------------------------------------------------------------------

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