Obligation To Solicit Race and Gender Data for Agency Enforcement
Purposes
[10/07/2005]
Volume 70, Number 194, Page 58945-58963
[[Page 58945]]
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Part VIII
Department of Labor
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Office of Federal Contract Compliance Programs
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41 CFR Part 60-1
Obligation To Solicit Race and Gender Data for Agency Enforcement
Purposes; Final Rule
[[Page 58946]]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-1
RIN 1215-AB45
Obligation To Solicit Race and Gender Data for Agency Enforcement
Purposes
AGENCY: Office of Federal Contract Compliance Programs, Employment
Standards Administration, DOL.
ACTION: Final rule.
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SUMMARY: Office of Federal Contract Compliance Programs (OFCCP)
regulations require covered federal contractors and subcontractors to
collect information about the gender, race and ethnicity of each
``applicant'' for employment. The final rule published today modifies
OFCCP applicant recordkeeping requirements to address challenges
presented by the use of the Internet and electronic data technologies
in contractors' recruiting and hiring processes. The final rule is
intended to address recordkeeping requirements regarding ``Internet
Applicants'' under all OFCCP recordkeeping and data collection
requirements.
EFFECTIVE DATE: These regulations are effective February 6, 2006.
FOR FURTHER INFORMATION CONTACT: Director, Division of Policy,
Planning, and Program Development, Office of Federal Contract
Compliance Programs, 200 Constitution Avenue, NW., Room N3422,
Washington, DC 20210. Telephone: (202) 693-0102 (voice) or (202) 693-
1337 (TTY). Copies of this final rule, including copies in alternative
formats, may be obtained by calling OFCCP at (202) 693-0102 (voice) or
(202) 693-1337 (TDD/TTY). The alternate formats available are large
print, electronic file on computer disk and audiotape. This document
also is available on the Internet at http://www.dol.gov/esa.
SUPPLEMENTARY INFORMATION:
I. Introduction
OFCCP requires covered federal contractors to obtain gender, race,
and ethnicity data on employees and, where possible, on applicants. See
41 CFR 60-1.12(c). OFCCP requires this data collection activity for
several purposes relating to contractors' administration of
nondiscrimination and affirmative action requirements and OFCCP's role
in monitoring compliance with OFCPP requirements. See 65 FR 68023
(November 13, 2000); 65 FR 26091 (May 4, 2000). For example,
contractors use gender, race, and ethnicity data in the ``job group
analysis'' portion of their AAPs (41 CFR 60-2.12) and OFCCP uses the
data to decide which contractor establishments to review and, among
those reviewed, when to conduct an on-site investigation. Contractors
must supply this information to OFCCP upon request. See 41 CFR 60-
1.12(c)(2).
II. Rulemaking History
The Uniform Guidelines on Employee Selection Procedures (UGESP)
were issued in 1978 by the Equal Employment Opportunity Commission, the
Department of Labor, the Department of Justice, and the predecessor of
the Office of Personnel Management (``UGESP agencies''). UGESP requires
employers to keep certain kinds of information and details methods for
validating tests and selection procedures that are found to have a
disparate impact.
The Department of Labor is a signatory to UGESP, which is codified
in OFCCP regulations at 41 CFR part 60-3. Section 60-1.12, OFCCP's
Executive Order 11246 record retention rule, was amended on November
13, 2000, to require contractors to be able to identify, where
possible, the gender, race, and ethnicity of each applicant for
employment. OFCCP promulgated this regulatory requirement to govern
OFCCP compliance monitoring and enforcement (e.g., to allow OFCCP to
verify EEO data), consistent with the UGESP. Prior to these amendments,
OFCCP regulations did not expressly require contractors to maintain, or
submit to OFCCP, information about the gender, race, and ethnicity of
applicants and employees. See 65 FR 26091 (NPRM May 4, 2000); 65 FR
68023, 68042 (Final Rule Nov. 13, 2000). The pertinent provisions of
the November 13, 2000 final rule were codified in OFCCP regulations at
41 CFR 60-1.12(c).
In 2000, the Office of Management and Budget instructed the Equal
Employment Opportunity Commission to consult with the other UGESP
agencies to address the ``issue of how use of the Internet by employers
to fill jobs affects employer recordkeeping obligations'' under UGESP.
See Notice of OMB Action, OMB No. 3046-0017 (July 31, 2000). In
particular, the Office of Management and Budget instructed the agencies
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.'' Id.
On March 4, 2004, the UGESP agencies issued a Notice in the Federal
Register seeking comments under the Paperwork Reduction Act about the
burdens and utility of interpretive guidance intended to clarify how
UGESP applies in the context of the Internet and related electronic
data technologies. 69 FR 10152 (March 4, 2004). The preamble to the new
interpretive guidance discussed the need for clarification of UGESP
obligations in the context of the Internet and related electronic data
technologies. See 69 FR 10154-155. The UGESP agencies expressly
contemplated that ``[e]ach 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.'' 69 FR 10153.
On March 29, 2004, OFCCP published a Notice of Proposed Rulemaking
proposing amendments to OFCCP regulations governing applicant
recordkeeping requirements. 69 FR 16446, 16449 (March 29, 2004). OFCCP
determined that additional regulations were required to clarify OFCCP
applicant recordkeeping requirements in light of OFCCP's unique use of
applicant data for compliance monitoring and other enforcement
purposes.
In the proposed rule, OFCCP proposed to amend OFCCP regulations at
41 CFR 60-1.3 to add a definition of ``Internet Applicant.'' 69 FR
16449. The proposed definition of ``Internet Applicant'' involved four
criteria: (1) The job seeker has submitted an expression of interest in
employment through the Internet or related electronic data
technologies; (2) the employer considers the job seeker for employment
in a particular open position; (3) the job seeker's expression of
interest indicates the individual possesses the advertised, basic
qualifications for the position; and, (4) the job seeker does not
indicate that he or she is no longer interested in employment in the
position for which the employer has considered the individual. 69 FR
16449. Under the proposed rule, ``advertised, basic qualifications''
were qualifications that the employer advertises to potential
applicants that they must possess in order to be considered for the
position. 69 FR 16449. The proposed definition further provided that
``advertised, basic qualifications'' must be noncomparative, objective,
and job-related. 69 FR 16449-450.
The proposed rule also would amend 41 CFR 60-1.12(a) to require
contractors to retain records of all expressions of interest through
the Internet or related electronic technologies. 69 FR 16450.
[[Page 58947]]
Lastly, the proposed rule would amend 41 CFR 60-1.12(c)(1)(ii) to
incorporate the new category of ``Internet Applicant,'' as defined in
the proposed amendment to section 60-1.3 and to distinguish between
``applicants,'' i.e., expressions of interest in employment that are
not submitted through the Internet and related electronic technologies,
and ``Internet Applicants.'' 69 FR 16450.
OFCCP received 46 comments from 45 entities: four individuals, nine
interest groups, an academic organization, the Chairman of the U.S.
House of Representatives Committee on Education and the Workforce's
Subcommittee on Employer-Employee Relations, seventeen employers who
are covered contractors within OFCCP's jurisdiction, three trade
associations, one law firm that represents contractors, and nine
consultants that represent contractors.
The commenters offered a diverse array of views on the proposed
rule. Almost all of the comments focused on four general areas: (1) The
relationship between the proposed rule and the UGESP Additional
Questions and Answers; (2) the specific criteria of the proposed
``Internet Applicant'' definition, especially the part of the
definition involving ``advertised, basic qualifications;'' (3) the
recordkeeping requirements of the proposed rule; and (4) the treatment
of ``traditional'' expressions of interest, i.e., those made through
means other than the Internet or related electronic data technologies.
Several commenters also addressed significant issues related to
OFCCP compliance monitoring and enforcement activities under the
proposed rule, including OFCCP's use of labor force statistics and the
effective date of the final rule.
III. Summary and Explanation of the Final Rule
The final rule, for the most part, adopts the text that was
proposed in the March 29, 2004 NPRM. However, in response to the public
comments, OFCCP has modified the proposed text in certain respects. The
discussion which follows identifies the significant comments received
in response to the NPRM, provides OFCCP's responses to those comments,
and explains any resulting changes to the proposed rule.
Discussion of Comments and Revisions
Comments Regarding the Relationship Between the Proposed UGESP
Additional Questions and Answers and the OFCCP Proposed Rule
Many of the commenters expressed concern about the relationship
between OFCCP's proposed rule and the Proposed UGESP Additional
Questions and Answers. Most of these commenters argued that the
proposals are not sufficiently coordinated, which could create
confusion among employers, and could lead to inconsistent or even
conflicting obligations.\1\ Many of these commenters, such as Society
for Human Resources Management (SHRM), ORC Worldwide (ORC), National
Association of Manufacturers (NAM), and National Industry Liaison Group
(NILG), pointed out that this perceived lack of coordination could lead
to inadequate compliance with either of the rules and enormous
recordkeeping burdens for employers. The Equal Employment Advisory
Council (EEAC) believed that the OFCCP proposal conflicts in several
important respects with the proposed UGESP Additional Questions and
Answers. Gaucher Associates believed that the OFCCP proposal conflicts
with OFCCP's prior informal interpretation of UGESP.
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\1\ See, e.g., Blount International, Inc., Computer Associates
International, Inc., Glenn Barlett Consulting Services, LLC, L-3
Communications, Maly Consulting LLC, Motorola Corp., Society for
Human Resource Management, Southwest Airlines Co., ORC Worldwide,
National Association of Manufacturers, National Industry Liaison
Group, Morgan, Lewis & Bockius LLP, Thomas Houston Associates, Inc.,
TOC Management Services, Nancy J. Purvis, Sentari Technologies,
Inc., Society for Industrial and Organizational Psychology,
Louisiana Pacific Corp., and Premier Health Partners.
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These commenters recommended an array of differing solutions for
this coordination problem. Most of the commenters preferred that the
UGESP agencies more explicitly adopt the ``basic qualifications''
component of the OFCCP applicant definition.\2\ Several commenters
argued against the OFCCP proposed rule altogether and asserted a
preference for the UGESP proposal.\3\
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\2\ See, e.g., American Bankers Association, Chairman of the
U.S. House of Representatives Committee on Education and the
Workforce's Subcommittee on Employer-Employee Relations, Computer
Associates International, Inc., L-3 Communications, ORC Worldwide,
Motorola, Inc., National Association of Manufacturers, National
Industry Liaison Group, Morgan, Lewis & Bockius LLP, Sentari
Technologies, Inc., Siemens USA, Society for Human Resource
Management, Society for Industrial and Organizational Psychology,
Southwest Airlines Co., Thomas Houston Associates, Inc., TOC
Management Services, Louisiana Pacific Corp., and Premier Health
Partners.
\3\ See, e.g., Blount International, Inc., The Leadership
Conference on Civil Rights, the National Women's Law Center, and the
Lawyers' Committee for Civil Rights Under Law.
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OFCCP agrees with the commenters that coordination between this
final rule and the proposed UGESP Additional Questions and Answers is
desirable. While the Department believes that the NPRM was consistent
with the proposed UGESP Additional Questions and Answers, the
Department will work with the other UGESP agencies to coordinate the
final UGESP Additional Questions and Answers to ensure that contractors
do not face inconsistent applicant recordkeeping obligations.
Morgan, Lewis & Bockius LLP asked how OFCCP interprets procedures
for evaluating Internet Applicant recordkeeping obligations under
section 60-1.12 and UGESP. To make clear OFCCP's interpretation of
procedures regarding Internet Applicant recordkeeping under both rules,
OFCCP has added a new regulatory provision, section 60-1.12(d), to the
final rule. The new provision, captioned ``Adverse impact
evaluations,'' explains that when evaluating whether a contractor has
maintained information on impact and conducted an adverse impact
analysis under Part 60-3 with respect to Internet hiring procedures,
OFCCP will require only those records relating to the analyses of the
impact of employee selection procedures on Internet Applicants and the
impact of employment tests. As discussed below, OFCCP does not deem
employment tests to be basic qualifications under the final rule and
contractors must continue to collect and maintain records related to
the impact of employment tests that are used as employee selection
procedures, without regard to whether the tests were administered to
Internet Applicants. However, OFCCP's compliance evaluations will not
be limited to an evaluation of those records produced by the
contractor. During compliance evaluations OFCCP will continue to look
broadly at all aspects of a contractor's compliance with its
obligations to refrain from discrimination in recruitment, hiring, and
other employment practices, including the possible adverse impact of
screens for basic qualifications.
As a technical matter, today's rule redesignates the former section
60-1.12(d), Failure to preserve records, as section 60-1.12(e), and
removes former section 60-1.12(e), Applicability. The latter section
was contained in the regulations merely to indicate the Office of
Management and Budget's approval under the Paperwork Reduction Act of a
previously published recordkeeping requirement. 62 FR 66971 (Dec. 22,
[[Page 58948]]
1997). Accordingly, it is no longer necessary.
General Comments on OFCCP's Proposed Definition of ``Internet
Applicant''
Most commenters provided comments specific to one or more of the
parts and subparts of OFCCP's proposed definition of ``Internet
Applicant.'' OFCCP discusses below these comments in relation to each
specific part or subpart of the proposed ``Internet Applicant''
definition to which they apply.
However, several commenters, including EEAC, NILG and Glenn Barlett
Consulting Services, Inc. (GBCS), expressed general concern that
OFCCP's proposed definition is too precise and prescriptive, in light
of the variety of recruiting and selection practices that employers
utilize. These commenters requested that OFCCP adopt more general
guidelines that afford employers significant discretion in determining
whether an individual qualifies as an ``applicant'' under the
employer's own recruiting and selection systems. For example, GBCS
argued that employers should be permitted to determine any point in the
selection process in which race, ethnicity, and gender data would be
collected. GBCS noted, ``[m]any contractors currently solicit race,
ethnicity, and gender at the interview stage.''
OFCCP disagrees with commenters that suggested that general
guidelines are preferable to clear rules. OFCCP believes that general
guidelines would not provide clear guidance on compliance requirements
or ensure adequate protections for employees and applicants. As many
commenters have pointed out, over the years, there has been significant
controversy between OFCCP and the contractor community as to whether a
particular applicant recordkeeping practice satisfies OFCCP
requirements. This controversy was fueled by the lack of clear rules
about applicant recordkeeping requirements, and, in particular, clear
rules about applicant recordkeeping requirements in the context of the
Internet and related electronic technologies. Without clear rules,
OFCCP cannot secure general compliance with the requirements, either
through compliance assistance or compliance monitoring.
Northern California and Silicon Valley Industry Liaison Group
requested that OFCCP expressly state in the final rule that the
regulatory definition of ``Internet Applicant'' provides a minimum
requirement for contractors, but also permits contractors to
voluntarily implement a more expansive definition of ``applicant'' for
OFCCP recordkeeping purposes.
OFCCP is well aware that contractors utilize a variety of
recruitment and selection practices. Nothing in the final rule alters
contractors' discretion to determine their own recruitment and
selection practices and procedures. Rather, the final rule simply
requires contractors to maintain sufficient records to allow both the
employer and OFCCP to monitor the contractor's selection practices for
potential discrimination. OFCCP disagrees with the recommendation that
contractors be afforded ultimate discretion to determine recordkeeping
requirements. OFCCP prescribes recordkeeping standards in order to
enforce E.O. 11246, which prohibits employment discrimination on the
basis of race, color, national origin, religion, and sex. OFCCP
regulations implementing E.O. 11246 require contractors to self audit
their own selection practices to ensure nondiscrimination. See 41 CFR
60-2.17, 60-3.4. OFCCP could not enforce E.O. 11246 effectively to
ensure nondiscrimination if contractors are themselves the ultimate
arbiters of whether sufficient records are available for OFCCP
compliance monitoring activities. Nor, in OFCCP's judgment, could
contractors adequately self audit their own selection practices without
adequate applicant recordkeeping. Thus, the final rule establishes
minimum standards for applicant recordkeeping in the context of the
Internet and related electronic technologies. Contractors, however, may
voluntarily adopt recordkeeping practices that are broader than those
mandated by the final rule.
Comments on OFCCP's Proposed Definition of ``Internet Applicant''
Part 1: ``Submits an expression of interest in employment through the
Internet or related electronic data technologies;''
In the proposed rule, ``Internet Applicant'' was defined as any
individual who satisfied four criteria. OFCCP has retained the four
criteria in the final rule. The first criterion of the proposed
definition required that the individual ``[s]ubmits an expression of
interest in employment through the Internet or electronic data
technologies.'' The preamble to the proposed rule made clear that this
provision applied only to expressions of interest in employment through
the Internet or related electronic data technologies and that the
existing standards would apply to expressions of interest through
traditional means.
OFCCP solicited comments on this subject in the preamble of the
proposed rule:
The new interpretive guidelines promulgated by the UGESP
agencies apply only to the Internet and related technologies.
Because OFCCP relies on applicant data to determine whether to
conduct an on-site audit of a contractor's workplace, OFCCP is
concerned that the data allow for meaningful analysis. The proposed
rule creates differing standards for data collection for traditional
applicants versus Internet Applicants for the same job. Accordingly,
if an employer's recruitment processes for a particular job involve
both electronic data technologies, such as the Internet, and
traditional want ads and mailed, paper submissions, the proposed
rule would treat these submissions differently for that particular
job. We are unsure whether this dual standard will provide OFCCP
with meaningful contractor data to assess in determining whether to
commit agency resources into an investigation of a contractor's
employment practices. Therefore, OFCCP expressly solicits comments
on this issue.
69 FR 16447 (March 29, 2004). OFCCP received many comments regarding
whether the standard for ``Internet Applicant'' should be applied to
individuals who submit an expression of interest through a means other
than the Internet or related electronic data technologies. Many of the
commenters addressed this subject and virtually all argued that the
definition of applicant should not depend on the means by which an
expression of interest comes into the employer's possession.\4\ Most of
these commenters asserted that the differing definitions of applicant
would cause confusion and impose significant burdens on employers who
would have to maintain two different recordkeeping systems.\5\ Several
of the commenters,
[[Page 58949]]
including HR Analytical Services, L-3 Communications, and the U.S.
Chamber of Commerce, noted that the applicant data employers would
obtain under the proposed rule would not provide for meaningful
analysis of recruitment and hiring practices. Several commenters, such
as Siemens USA (Siemens), Gaucher Associates, and SHRM, also asserted
that a dual standard may create an incentive for employers not to
consider expressions of interest through traditional means, such as
mailing a paper resume, which would work to the disadvantage of persons
who do not have ready access to the Internet.
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\4\ See, e.g., American Bankers Association, Chairman of the
U.S. House of Representatives Committee on Education and the
Workforce's Subcommittee on Employer-Employee Relations, Computer
Associates International, Inc., Glenn Barlett Consulting Services,
HR Analytical Services, Kairos Services, Inc., Lawyers' Committee
for Civil Rights Under Law, Leadership Conference on Civil Rights,
L-3 Communications, Lorillard, Inc., Maly Consulting LLC, Morgan,
Lewis & Bockius LLP, Motorola Corp., ORC Worldwide, National Women's
Law Center, National Industry Liaison Group, Northern California and
Silicon Valley Industry Liaison Group, Siemens USA, Society for
Human Resource Management, Society for Industrial and Organizational
Psychology, Southwest Airlines Co., Thomas Houston Associates, Inc.,
TOC Management Services, and U.S. Chamber of Commerce. As discussed
below, several of these commenters, including Lawyers' Committee for
Civil Rights Under Law, Leadership Conference on Civil Rights, and
National Women's Law Center, disagreed with the proposed rule's
reference to ``basic qualifications'' in defining ``Internet
Applicant.''
\5\ See, e.g., American Bankers Association, Computer Associates
International, Inc., Gaucher Associates, HR Analytical Services, L-3
Communications, ORC Worldwide, Morgan, Lewis & Bockius LLP, Motorola
Corp., Nancy J. Purvis, National Women's Law Center, Society for
Human Resource Management, Society for Industrial and Organizational
Psychology, Southwest Airlines Co., Thomas Houston Associates, Inc.,
and U.S. Chamber of Commerce.
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In response to the comments, OFCCP added a related provision in the
final rule which eliminates the proposed rule's dual standard for
Internet versus traditional applicants, but only as to positions for
which the contractor considers expressions of interest through both the
Internet and traditional means. To make this rule clearer, the final
rule adds three examples that explain this new provision. In the first
example, the contractor solicits potential applicants for a position
that is posted on its Web site. The contractor's Web site encourages
potential applicants to complete an on-line profile to express an
interest in the position. The contractor's Web site also advises
potential applicants that they can mail a hard-copy resume with a cover
letter that identifies the position for which they would like to be
considered. In this example the contractor considers individuals
expressing interest in a position using on-line profiles, an Internet
technology, and mailed hard-copy resumes, a traditional method of
application. Since the contractor considers expressions of interest
through both on-line profiles and mailed hard-copy resumes, the
Internet Applicant rule applies to both types of expressions of
interest. In the second example, the contractor posts an opening for a
position on its Web site and encourages potential applicants to
complete an on-line profile. The contractor also receives a large
number of unsolicited hard-copy resumes in the mail each year. The
contractor scans the hard-copy resumes into an internal database that
also includes all the on-line profiles that individuals have completed
for various jobs. The contractor uses this internal database to find
potential applicants for a position posted on the contractor's Web
site. In this example, the Internet Applicant rule applies to both the
on-line profiles and the unsolicited paper resumes. In the third
example, the contractor does not consider potential applicants using
Internet or related technologies, and, therefore, the Internet
Applicant rule does not apply.
OFCCP agrees with the commenters that the bifurcated standard
contained in the proposed rule would not have provided useful data
where the contractor considers both types of expressions of interest
for a particular position. Indeed, this bifurcated standard would
result in essentially two applicant data pools--one describing
individuals who possess the basic qualifications and another describing
some individuals who do not possess those basic qualifications--
depending on the manner in which the employer obtained the expression
of interest. Because the pools are composed differently, OFCCP could
not draw meaningful conclusions from analysis of the combined pool.
OFCCP also shares the concerns regarding the complexity of such a
framework and the corresponding difficulty in achieving substantial
compliance through compliance assistance and compliance monitoring.
Thus, in the final rule, OFCCP eliminated the differing standards for
data collection for traditional applicants versus Internet Applicants
for the same job when the employer considers both types of applicants.
Under the final rule, where the Internet Applicant standard applies to
a particular position, a particular expression of interest that does
not qualify as an ``Internet Applicant'' for that position (e.g.,
because the individual did not possess the basic qualifications for the
position), will not qualify as an ``applicant'' for that position, as
the term ``applicant'' is used in OFCCP regulations at 41 CFR 60-
1.12(c). Further, pursuant to section 60-1.12(d), where the Part 60-1
Internet Applicant standard applies to a particular position, OFCCP
will only require those records under Part 60-3 (other than those
related to job seekers screened by a test used as a selection
procedure) that relate to job seekers that are Internet Applicants as
defined in 41 CFR 60-1.3. OFCCP modified the text of section 60-
1.12(c)(1)(ii) in the final rule to make clear that either the
``applicant'' standard or the ``Internet Applicant'' standard would
apply for a particular position, but not both. In the final rule,
section 60-1.12(c) requires contractors to maintain records that
identify ``where possible, the gender, race, and ethnicity of each
applicant or ``Internet Applicant'' as defined in 41 CFR 60-1.3,
whichever is applicable to the particular position.''
However, OFCCP does not believe that these problems and concerns
are present to the same extent, if at all, where the contractor
considers only traditional expressions of interest for a particular
position. In such a situation, a single standard is used to determine
who is an applicant. For example, a manufacturer that hires for
assembly line positions and considers only individuals who fill out and
submit a hard copy application form has a single data pool--no member
of which are Internet Applicants. This contractor can solicit race,
ethnicity, and gender information through a voluntary self-
identification form provided with the application form. In this
example, the applicant pool consists of those individuals who completed
and submitted an application form, applying a single, traditional
standard for who is an applicant.
OFCCP received several other comments about this part of the
proposed rule. The Leadership Conference on Civil Rights (LCCR)
requested that OFCCP ``make clear that there are multiple ways for a
potential applicant to submit an expression of interest in a particular
position.'' LCCR's concern was that an employer might refuse to
consider the expressions of interest of individuals who do not follow
the employer's desired process for making such expressions of interest.
LCCR also was concerned that employers might make ad hoc exceptions to
their standard process for accepting expressions of interest. LCCR
argued that ``any guidance that is developed should make clear that
individuals who reasonably believe, based on the information they
received from the employer, that they have applied for a particular
position should be considered applicants for that position and recorded
a (sic) such.''
OFCCP has addressed these comments fully in the section that
discusses the second criterion for the ``Internet Applicant''
definition. OFCCP agrees that contractors should not be permitted to
selectively determine who will be considered for employment based on
the qualifications information contained on an expression of interest.
OFCCP has added an explicit definition of ``considers the individual
for employment in a particular position.'' Under the final rule at
subsection (3) of the definition of Internet Applicant, `` `considers
the individual for employment in a particular position,' means that the
contractor assesses the substantive information provided in the
[[Page 58950]]
expression of interest with respect to any qualifications involved with
a particular position.'' This definition forecloses the possibility
that a contractor could evaluate an individual's qualifications for a
particular position without thereby having ``considered'' the
individual.
At the same time, OFCCP does not provide a blanket requirement that
contractors must consider any and all expressions of interest they
receive, regardless of the manner or nature of the expression of
interest. OFCCP makes this clear in the final rule (subsection (3) of
the Internet Applicant definition) through the definition of
``considers the individual for employment in a particular position,''
which further provides that ``[a] contractor may establish a protocol
under which it refrains from considering expressions of interest that
are not submitted in accordance with standard procedures the contractor
establishes. Likewise, a contractor may establish a protocol under
which it refrains from considering expressions of interest, such as
unsolicited resumes, that are not submitted with respect to a
particular position.'' Under the final rule, it is the contractor's
actual practice with respect to a particular expression of interest
that determines whether the contractor has ``considered'' that
expression of interest and similar expressions of interest. For
example, if the contractor's policy is to accept expressions of
interest only through its Web site, but its actual practice is to also
review faxed resumes and scan those it is interested in into its
database, the contractor's actual practice is to consider faxed resumes
as well as expressions of interest received through its Web site. This
is consistent with OFCCP's longstanding policy to permit contractor's
to dispose of unsolicited resumes if the contractor has a consistently
applied policy of not considering unsolicited resumes.
OFCCP investigates whether a contractor has such a protocol by
reviewing the contractor's hiring procedures and policies and by
reviewing the contractor's hiring practices to determine whether those
procedures and policies were consistently and uniformly followed.
Several other commenters, including EEAC, Louisiana Pacific Corp.,
and Premier Health Partners, criticized the proposed rule for not
including a requirement that the individual make an expression of
interest in accordance with the employer's standard procedures for
submitting applications.
Several commenters, including EEAC, ORC, SHRM, and the Society for
Industrial and Organizational Psychology (SIOP), requested that this
part of the proposed definition expressly require that the expression
of interest must be an expression for a particular position. Otherwise,
these commenters argued, any expression of interest might qualify an
individual as an applicant for any position, which would impose
significant burdens on contractors if the potential applicant pool is
voluminous. ORC offered the example of an employer that searches
Monster.com and finds over 20,000 resumes of individuals who satisfy
the basic qualifications for a particular position. ORC argued that all
20,000 of these individuals would be applicants under OFCCP's proposed
definition, unless the definition is somehow limited to those
individuals who express an interest in the particular position for
which the contractor is considering the individual. SIOP argued that
contractors will face significant recordkeeping burdens if expressions
of interest are not limited to those for a particular position because
the proposed rule would require contractors to retain all expressions
of interest, regardless of whether the individual qualifies as an
Internet Applicant.
OFCCP agrees that the proposed data collection and recordkeeping
requirements would be unreasonable in the example ORC offered. To
address these situations, the agency has modified or clarified several
provisions of the proposed rule. Specifically, OFCCP expressly states
in the final rule (subsection (3) of the definition of ``Internet
Applicant'') that ``[i]f there are a large number of expressions of
interest, the contractor does not `consider the individual for
employment in a particular position' by using data management
techniques that do not depend on assessment of qualifications, such as
random sampling or absolute numerical limits to reduce the number of
expressions of interest to be considered, provided that the sample is
appropriate in terms of the pool of those submitting expressions of
interest.'' Data management techniques are not ``appropriate'' under
subsection (3) if they are not facially neutral or if they produce
disparate impact based on race, gender, or ethnicity in the expressions
of interest to be considered. Further, OFCCP modified the fourth part
(subsection (1)(iv)) of the proposed definition of ``Internet
Applicant'' to require that ``[t]he individual at no point in the
contractor's selection process prior to receiving an offer of
employment from the contractor, removes himself or herself from further
consideration or otherwise indicates that he or she is no longer
interested in the position.''
OFCCP also added a related provision (subsection (5) of the
definition of ``Internet Applicant'') to clarify that, ``a contractor
may conclude that an individual has removed himself or herself from
further consideration, or has otherwise indicated that he or she is no
longer interested in the position for which the contractor has
considered the individual, based on the individual's express statement
that he or she is no longer interested in the position, or on the
individual's passive demonstration of disinterest shown through
repeated non-responsiveness to inquiries from the contractor about
interest in the position. A contractor also may determine that an
individual has removed himself or herself from further consideration or
otherwise indicated that he or she is no longer interested in the
position for which the contractor has considered the individual based
on information the individual provided in the expression of interest,
such as salary requirements or preferences as to type of work or
location of work, provided that the contractor has a uniformly and
consistently applied policy or procedure of not considering similarly
situated job seekers. If a large number of individuals meet the basic
qualifications for the position, a contractor may also use data
management techniques, such as random sampling or absolute numerical
limits, to limit the number of individuals who must be contacted to
determine their interest in the position, provided that the sample is
appropriate in terms of the pool of those meeting the basic
qualifications.'' Data management techniques are not ``appropriate''
under subsection (5) if they are not facially neutral or if they
produce adverse impact based on race, gender, or ethnicity in the job
seekers that will be contacted by the contractor to discern interest in
the job. Finally, in the final rule (Sec. 60-1.12(a)), OFCCP clarified
that, when a contractor uses a third-party resume database, the
contractor must retain the electronic resumes of job seekers who met
the basic qualifications for the particular position who are considered
by the contractor, not all the resumes contained in the third-party
resume database, along with records identifying job seekers contacted
regarding their interest in a particular position, a record of the
position for which each search of the database was made, the
substantive search criteria used, and the date of the search.
Returning to ORC's example in light of these modifications, the
contractor may reduce the burden from applicant
[[Page 58951]]
recordkeeping obligations by determining which of the 20,000
individuals from Monster.com to contact through random sampling or an
absolute numerical technique.\6\ The contractor could also limit
burdens from recordkeeping obligations by determining which of the
20,000 individuals are interested in the position through the
individuals' stated preferences as to type or location of work, or
salary requirements. The contractor would be required to retain only
the resumes of job seekers who met the basic qualifications for the
particular position and who were considered by the contractor, not
20,000 resumes or all the resumes in the Monster.com database.
---------------------------------------------------------------------------
\6\ Under a random sampling technique, the employer considers
only a small subset of resumes drawn randomly from the 20,000
resumes; many spreadsheets and database software packages offer
random sampling functions. Under an absolute numerical limit, the
employer reviews only a predesignated number of resumes, such as the
first 100 resumes.
---------------------------------------------------------------------------
Several commenters, including Gaucher Associates and Siemens USA
(Siemens), argued that the term ``Internet and related electronic data
technologies'' is vague and requested that OFCCP clarify the meaning of
this term in the final rule. OFCCP will not provide a precise
definition of this term in recognition of rapid changes in technology
in this area. However, OFCCP does intend this term to include the types
of technologies referenced in the preamble to the proposed UGESP
Additional Questions and Answers as follows:
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.
69 FR 10155 (March 4, 2004).
Part 2: ``The employer considers the individual for employment in a
particular open position;''
In the proposed rule, the second criterion of the ``Internet
Applicant'' definition required that ``[t]he employer considers the
individual for employment in a particular open position.'' Subsection
(1)(ii). OFCCP made one change to this text in the final rule; the word
``open'' was deleted. The deletion was made to avoid confusion about
whether the second criterion is met if an individual is considered for
a position that may by open in the future, but is not currently open.
Under subsection (1)(ii) it will be sufficient for a contractor to
consider an individual for employment in a particular position.
In response to comments received from the LCCR, EEAC and others
discussed above, OFCCP added a related provision at subsection (3) of
the definition of Internet Applicant in the final rule:
For purposes of paragraph (1)(ii) of this definition,
``considers the individual for employment in a particular
position,'' means that the contractor assesses the substantive
information provided in the expression of interest with respect to
any qualifications involved with a particular position. A contractor
may establish a protocol under which it refrains from considering
expressions of interest that are not submitted in accordance with
standard procedures the contractor establishes. Likewise, a
contractor may establish a protocol under which it refrains from
considering expressions of interest, such as unsolicited resumes,
that are not submitted with respect to a particular position. If
there are a large number of expressions of interest, the contractor
does not ``consider the individual for employment in a particular
position'' by using data management techniques that do not depend on
assessment of qualifications, such as random sampling or absolute
numerical limits, to reduce the number of expressions of interest to
be considered, provided that the sample is appropriate in terms of
the pool of those submitting expressions of interest.
Subsection (3) explains that a contractor may establish a protocol
under which it refrains from considering expressions of interest that
are not submitted in accordance with standard procedures established by
the contractor, or not submitted with respect to a particular position.
However, the protocol must be uniformly and consistently applied to
similarly situated job seekers. As previously mentioned, it is the
contractor's actual practice that determines whether the contractor
``considered'' the expression of interest. If a contractor's policy is
to accept expressions of interest only through its Web site, but its
actual practice is to review faxed resumes as well and to scan those it
is interested in into its resume database, then the contractor
``considers'' faxed resumes as well as expressions of interest received
through its Web site.
Subsection (3) also provides that if there are a large number of
expressions of interest the contractor may use data management
techniques to reduce the number of expressions of interest that must be
considered, provided that the sample is appropriate in terms of the
pool of those submitting expressions of interest. Data management
techniques used to reduce the number of expressions of interest to be
considered must be facially neutral in terms of race, ethnicity, gender
or other protected factors. Data management techniques that produce
adverse impact based on race, gender or ethnicity in the expressions of
interest that will be considered by the contractor would not be
appropriate.
[[Page 58952]]
Several commenters, including Maly Consulting LLC, ORC, Siemens,
and the SIOP, commented generally that the term ``considers'' is
ambiguous and requested that OFCCP clarify its meaning. ORC argued that
``considers'' should include the determination of whether an individual
meets the basic qualifications for the position.
Siemens was concerned that the term ``considers'' could be
interpreted to preclude contractors from searching an internal resume
database using successively more precise qualification searches to
narrow the pool of potential applicants to a manageable number. Siemens
argued that the term ``considers'' should be interpreted to permit
contractors to use database searches to narrow a large pool of
potential applicants down to a manageable number for individual
evaluation. Siemens also recommended that ``considers'' be restricted
to the stage in which ``the recruiter or hiring manager evaluates an
actual applicant against the employer's requirements and makes a
judgment as to which individuals should continue in the process.''
Similarly, SIOP argued that the term ``considers'' should not include
searching an external resume database or ``querying an internal
database of recruit profiles.''
The U.S. Chamber of Commerce (the Chamber) recommended that the
term ``considers'' be interpreted to permit an employer to count as
``applicants'' for OFCCP purposes only ``those individuals best
qualified to fill its positions.'' The Chamber argued that this
interpretation of ``considers'' is necessary to permit employers to
manage large volumes of expressions of interest while retaining their
prerogative to select only the best qualified candidates. The Chamber
offered an example of how its recommended interpretation of
``considers'' might be applied: ``Hospital A'' has an opening for an
emergency room nurse position and advertises that it is seeking
registered nurses with hospital experience; Hospital A obtains fifty
expressions of interest that meet the advertised, basic qualifications
of registered nurse with hospital experience; Hospital A lacks the time
or resources to ``consider'' all 50 of these expressions of interest,
so it assesses which of the 50 expressions of interest indicate
emergency room nursing experience, and finds that 20 of the 50
expressions of interest indicate such experience; Hospital A then looks
at 10 out of these 20 expressions of interest with emergency room
nursing experience, determines that they are ``good candidates for the
job,'' and submits those ten candidates for ``consideration.'' Thus,
under the Chamber's recommended interpretation, Hospital A has
``considered'' only the ten individuals whose expressions of interest
indicate they are ``good candidates for the job.''
OFCCP agrees with the commenters who recommended that the agency
provide clear rules on applicant recordkeeping requirements. It is the
agency's intent to provide clear rules for applicant recordkeeping that
will allow OFCCP to enforce these requirements and that will provide
contractors with meaningful guidance on how to comply with them.
Therefore, OFCCP has included an express definition of ``considers the
individual for employment in a particular position'' in subsection (3)
of the definition of ``Internet Applicant'' in the final rule. Under
this definition, ``considers'' involves an assessment of the job
seeker's qualifications against any qualifications of a particular
position, including a determination of whether a job seeker meets the
basic qualifications for the position.
With respect to Siemens' concern about searching a resume database,
nothing in the definition of Internet Applicant precludes a contractor
from engaging in multiple searches of a resume database, so long as
each of the search criteria fall within the definition of ``basic
qualifications.'' Moreover, a contractor need not search for all of the
qualifications that constitute the ``basic qualifications'' for a
particular position. If the contractor chooses not to search for all of
the ``basic qualifications'' of the position, then it will collect race
and gender information from a broader pool than that framed by search
criteria that included all of the ``basic qualifications'' for the
position. The final rule provides minimum standards for applicant
recordkeeping. It does not prohibit contractors from voluntarily
collecting race, ethnicity or gender information from potential
applicants, nor does E.O. 11246 preclude contractors from voluntarily
obtaining this information from potential applicants, as long as such
information is used only for purposes of the contractor's affirmative
action and nondiscrimination programs.
However, OFCCP disagrees with Siemens, SIOP and the Chamber with
respect to their proposals essentially to eliminate the conditions on
``basic qualifications'' (i.e., that basic qualifications must be
noncomparative, objective, and ``relevant to performance of the
particular position * * *'') from the proposed definition of Internet
Applicant. OFCCP would not have sufficient records to evaluate
contractors' recruiting and hiring practices under E.O. 11246 if
contractors collected race and gender information in accordance with
the recommendations of these commenters. Under these recommendations,
OFCCP would be unable to assess a significant portion of a contractor's
recruiting and hiring practices, including the impact of basic
qualifications \7\ and the comparative assessment of candidates. In the
Chamber's example, only 10 individuals would be Internet Applicants
under their proposal, while 50 would be under the final rule. Under
some of these recommendations, OFCCP would be able to assess only the
final stages of the contractor's hiring process, leaving open whether
there was discrimination at any of the prior stages in the hiring or
recruiting processes. Further, many of the recommendations were far too
vague to provide a clear rule that OFCCP could enforce or that
contractors could apply to their particular recruiting and hiring
procedures.
---------------------------------------------------------------------------
\7\ By contrast, under the final rule, OFCCP can assess the
impact of ``basic qualifications'' by comparing the demographics of
the pool of ``Internet Applicants'' with statistics on the qualified
labor force. See discussion under ``Basic Qualifications,'' below.
---------------------------------------------------------------------------
In addition to the comments from LCCR discussed above, LCCR and the
National Women's Law Center (NWLC) also expressed concern that the
proposed rule leaves to the employer's discretion whom to ``consider''
for a particular position and argued that OFCCP should require
employers to ``consider'' all individuals who are similarly situated
with respect to the manner of making their expressions of interest.
LCCR also noted concern that an employer might make exceptions to its
internal procedures: ``[a] misguided employer could decide that he/she
only wanted to ``consider'' applicants with certain credentials, or
from a particular community, regardless of their actual qualifications
for a job.''
As noted above, OFCCP agrees that, for purposes of defining
applicant recordkeeping requirements, contractors should not be
permitted to selectively determine who will be considered for
employment based on the qualification information contained on an
expression of interest. Otherwise, OFCCP would not have sufficient
information to assess contractors' hiring practices for potential
discrimination. As discussed above, OFCCP has addressed this concern
through an explicit definition of ``considers the individual for
employment in a particular position'' under which contractors do not
have
[[Page 58953]]
discretion to assess information about a potential applicant's
credentials against any qualification of a particular position without
thereby having ``considered'' the potential applicant.
In addition, the final rule (at Sec. 60-1.12(a)) requires
contractors to retain records of qualifications used in the hiring
process and any and all expressions of interest through the Internet or
related electronic data technologies as to which the contractor
considered the individual for a position, including records such as on-
line resumes or internal resume databases and records identifying job
seekers contacted regarding their interest in a particular position.
The rule also specifies that with respect to internal resume databases,
the contractor must maintain a record of each resume added to the
database, a record of the date each resume was added to the database,
the position for which each search of the database was made, and
corresponding to each search, the substantive search criteria used and
the date of the search. In addition, with respect to external resume
databases, the contractor must maintain a record of the position for
which each search of the database was made, and corresponding to each
search, the substantive search criteria used, the date of the search,
and the resumes of job seekers who met the basic qualifications for the
particular position who are considered by the contractor. These records
are to be maintained regardless of whether the individual qualifies as
an Internet Applicant under 41 CFR 60-1.3. Existing recordkeeping
requirements (under Sec. 60-1.7 and 1.12) and OFCCP's investigative
rights (under Sec. 60-1.20) enable OFCCP to determine whether a
qualification actually was used for a particular position. The
recordkeeping requirements embodied in the final rule combined with the
existing OFCCP recordkeeping requirements will ensure that OFCCP has
adequate information to assess whether employers are selectively
``considering'' only certain candidates or imposing qualification
standards that do not meet the definition of ``basic qualifications''
under the final rule.
Part 3: ``The individual's expression of interest indicates the
individual possesses the advertised, basic qualifications for the
position;''
In the proposed rule, the third criterion of the ``Internet
Applicant'' definition required that ``[t]he individual's expression of
interest indicates that the individual possesses the advertised, basic
qualifications for the position.'' 69 FR 16446, 16447 (March 29, 2004).
The proposed rule defined ``advertised, basic qualifications'' as
``qualifications that the employer advertises (e.g., posts a
description of the job and necessary qualifications on its Web site) to
potential applicants that they must possess in order to be considered
for the position and that meet all of the following three conditions *
* *.'' Id. at 16449.
A. ``Advertised, basic qualifications''
1. ``Advertised''
Several commenters argued that the ``advertised'' component of the
proposed definition of Internet Applicant conflicts with the way
employers recruit for employees in many instances. EEAC argued that
many employers use ``broadcast recruitment,'' under which the employer
permits job seekers to submit a resume or register an expression of
interest ``in being considered for a range of positions, a broad
category of positions, or in some cases simply any position for which
the employer might currently or at some time in the future consider the
individual to be a good candidate.'' Siemens asserted that the proposed
requirement that the basic qualifications be advertised could place
``undue emphasis on the drafting of the initial announcement of the
vacancy and qualifications.'' Siemens argued that employers cannot know
in advance whether an advertised qualification will produce too few or
too many candidates who meet the basic qualifications, and recommended
that the final rule afford contractors flexibility to be able to ensure
an adequate, but manageable applicant pool. SIOP provided comments
similar to both EEAC and Siemens. HR Analytical Services noted that
employers may at times truncate qualifications listed in an
advertisement or job posting to save cost or space. ORC, SHRM, and
Thomas Houston Associates, Inc. argued that many job seekers submit
expressions of interest without ever viewing an advertisement for a
specific position. Most of these commenters suggested that OFCCP revise
the proposed definition of Internet Applicant to include qualifications
that are ``advertised or established.''
OFCCP acknowledges that in certain circumstances a contractor may
not have an opportunity because of emergent business conditions to
advertise a position before hiring a new employee. To address this
issue, the final rule provides an alternative for qualifications that
are not advertised. The final rule provides that if the contractor does
not advertise for the position, the contractor may use ``an alternative
device to find individuals for consideration (for example, through an
external resume database),'' and establish the qualification criteria
by making and maintaining a record of such qualifications for the
position prior to considering any expression of interest for that
position. Contractors must retain records of these established
qualifications in accordance with section 60-1.12(a).
In response to the comments, OFCCP modified this part in the final
rule by eliminating the word ``advertised.'' Thus, subsection (1)(iii)
of the definition of ``Internet Applicant'' in the final rule provides,
``[t]he individual's expression of interest indicates the individual
possesses the basic qualifications for the position. * * *''
2. ``Basic Qualifications''
Many commenters expressed general approval of the ``basic
qualifications'' component of the proposed rule.\8\ Several commenters
approved generally of the concept of ``basic qualifications,'' but
requested modifications of the proposed rule. For example, several
commenters, such as HR Analytical Services, SHRM, and Thomas Houston
Associates, Inc., argued that the term ``basic qualifications'' would
cause confusion because it is not a term that is commonly used by
employers, job seekers, or recruiters. These commenters recommended
that the term ``minimum qualifications'' be used instead of ``basic
qualifications,'' and argued that employers, job seekers, and
recruiters already understand and use the term ``minimum
qualifications.''
---------------------------------------------------------------------------
\8\ See note 4, above.
---------------------------------------------------------------------------
SHRM and HR Analytical Services also expressed concern that the
word ``basic'' in the term ``basic qualifications'' somehow could be
interpreted as a substantive limit on the types of qualifications that
could qualify under the definition, over and above the substantive
limits contained in the proposed definition of ``basic
qualifications,'' i.e., that they are noncomparative, objective, and
job related. SHRM and SIOP recommended that OFCCP provide more guidance
on what qualifications are ``basic'' in the final rule.
OFCCP disagrees with these commenters that a term other than
``basic qualifications'' is desirable for purposes of the final rule.
OFCCP believes that borrowing a term from common usage would cause more
confusion, not less. The term ``basic qualifications'' is carefully
defined in
[[Page 58954]]
the final rule to satisfy OFCCP compliance monitoring purposes. Under
this definition, any qualification that is noncomparative, objective,
and ``relevant to performance of the particular position and enabl[ing]
the contractor to accomplish business-related goals'' may be a ``basic
qualification.'' However, employment tests used as employee selection
procedures, including on-line tests, are not considered basic
qualifications under the final rule. Contractors are required to retain
records about the gender, race and ethnicity of employment test takers
who take an employment test used to screen them for employment,
regardless of whether test takers are Internet Applicants under section
60-1.3. For example, if 100 job seekers take an employment test, but
the contractor only considers test results for the 50 who meet the
basic qualifications for the job, demographic information must be
solicited only for the 50 job seekers screened by test results because
the test was used as a selection procedure only for those individuals.
By contrast, if the contractor used the test results from 100 test
takers to narrow the pool to 50 job seekers whose basic qualifications
are considered, the test is used as a selection procedure and
demographic information from all test takers must be solicited.
The term ``basic'' is not intended to provide any substantive limit
on the type or range of qualifications that could meet this definition.
Rather than offer examples of qualifications that meet the definition
of ``basic qualifications'' for particular jobs--which would require
OFCCP to describe the actual duties and responsibilities corresponding
to the job titles referenced in such examples--OFCCP provides
additional discussion of the components (i.e., noncomparative,
objective, and ``relevant to performance of the particular position * *
*'') of the definition in response to comments under separate headings
below.
A job seeker must meet all of a contractor's basic qualifications
in order to be an Internet Applicant under today's rule. For example, a
contractor initially searches an external job database with 50,000 job
seekers for 3 basic qualifications for a bi-lingual emergency room
nursing supervisor job (a 4-year nursing degree, state certification as
an RN, and fluency in English and Spanish). The initial screen for the
first three basic qualifications narrows the pool to 10,000. The
contractor then adds a fourth basic qualification, 3 years of emergency
room nursing experience, and narrows the pool to 1,000. Finally, the
contractor adds a fifth basic qualification, 2 years of supervisory
experience, which results in a pool of 75 job seekers. Under this final
rule, only the 75 job seekers meeting all five basic qualifications
would be Internet Applicants, assuming other prongs of the definition
were met.
Several other commenters asserted that OFCCP's proposal was unclear
about whether screening for criteria other than qualifications would be
deemed ``basic qualifications'' under the definition of Internet
Applicant. For example, Morgan Lewis & Bockius LLP asked whether job
seekers' salary requirements used to define the applicant pool would be
deemed ``basic qualifications.'' SIOP questioned whether ``willingness
to work in a specific geographic location,'' ``willingness to travel a
certain percentage of time,'' and ``willingness to work certain days or
shifts'' would qualify as ``basic qualifications.'' Several commenters,
such as NAM and Maly Consulting LLC, asked whether contractors' use of
random sampling or specific numerical limits (e.g., first 30 reviewed
out of 10,000) to manage large volumes of expressions of interest would
be deemed ``basic qualifications.''
OFCCP recognizes that contractors may gauge a job seeker's
willingness to work in the particular position through information the
individual has provided about salary requirements and willingness to
work in certain types of positions or certain geographic areas,
provided that the contractor has a uniformly and consistently applied
policy or procedure of not considering similarly situated job seekers.
OFCCP also recognizes that contractors may need to use additional data
management techniques (such as random sampling or numerical limits) to
develop a reasonable applicant pool out of a large volume of job
seekers who possess the basic qualifications for the particular
position. OFCCP does not view use of such information or techniques to
determine who is interested in a particular position to be
consideration of ``basic qualifications,'' provided that the sample is
appropriate in terms of the pool of those meeting the basic
qualifications. OFCCP addressed these comments in the final rule by
modifying the fourth part of the Internet Applicant definition to
require that ``[t]he individual at no point in the contractor's
selection process * * * removes himself or herself from further
consideration or otherwise indicates that he or she is no longer
interested in the position.'' The final rule includes a provision
(subsection (5) of the definition of ``Internet Applicant'') under
which ``a contractor may determine that an individual has removed
himself or herself from further consideration * * * based on
information the individual provided in the expression of interest, such
as salary requirements or preferences as to type of work or location of
work, provided that the contactor has a uniformly and consistently
applied policy or procedure of not considering similarly situated job
seekers.'' In addition, as discussed above with regard to Part 2 of the
Internet Applicant definition (subsection (1)(ii)), OFCCP added a
definition of ``considers the individual for employment in a particular
position,'' which also addresses these issues.
In response to the comments, OFCCP modified subsection (4) of the
definition of ``Internet Applicant'' by defining ``basic
qualifications'' as: ``qualifications (i)(A) that the contractor
advertises (e.g., posts on its web site a description of the job and
the qualifications involved) to potential applicants that they must
possess in order to be considered for the position, or (B) for which
the contractor establishes criteria in advance by making and
maintaining a record of such qualifications for the position prior to
considering any expression of interest for that particular position, if
the contractor does not advertise for the position but instead uses an
alternative device to find individuals for consideration (e.g., through
an external resume database), and (ii) that meet all of the following
three conditions * * *'' In the final rule, OFCCP retained most of the
text of the proposed rule with respect to the ``three conditions''
referenced in the definition of ``basic qualifications.'' Thus, the
final rule provides:
(A) The qualifications must be noncomparative features of a job
seeker. For example, a qualification of three years' experience in a
particular position is a noncomparative qualification; a
qualification that an individual have one of the top five number of
years' experience among a pool of job seekers is a comparative
qualification.
(B) The qualifications must be objective; they do not depend on
the contractor's subjective judgment. For example, ``a Bachelor's
degree in Accounting'' is objective, while ``a technical degree from
a good school'' is not. A basic qualification is objective if a
third-party, with the contactor's technical knowledge, would be able
to evaluate whether the job seeker possesses the qualification
without more information about the contractor's judgment.
(C) The qualifications must be relevant to performance of the
particular position and enable the contractor to accomplish
business-related goals.
[[Page 58955]]
Several commenters opposed the use of ``basic qualifications'' in
defining ``Internet Applicant'' for purposes of OFCCP recordkeeping
requirements. The Leadership Conference on Civil Rights, the National
Women's Law Center, and the Lawyers' Committee for Civil Rights Under
Law generally offered three arguments against the use of ``basic
qualifications'' as a way to determine applicant recordkeeping
obligations: (1) Established nondiscrimination legal standards do not
require an individual to be qualified for a job in order to be an
applicant for the job; (2) employers could use the ``basic
qualifications'' to manipulate the composition of the applicant pool,
exclude qualified individuals, and mask discrimination; and (3) the
purpose of applicant recordkeeping is to ensure that the qualifications
standards employers use, including ``basic qualifications,'' do not
discriminate against individuals on the basis of race, ethnicity or
sex. In sum, these commenters essentially were concerned that OFCCP
would not be able to find and remedy particular cases of hiring
discrimination under the proposed rule.
OFCCP disagrees with the three arguments presented by these
commenters. As to the commenters' first argument, OFCCP is proposing a
definition of applicant for the limited purposes of OFCCP recordkeeping
and data collection requirements pursuant to Executive Order 11246.
Accordingly, OFCCP is not purporting to define who is an applicant for
any purposes which would affect the substantive interests of any
individual, such as for purposes of litigation of employment
discrimination claims under any federal, state, or local
antidiscrimination statute. Moreover, OFCCP is not aware of any case in
which a court relied on OFCCP's recordkeeping definitions for purposes
of determining liability or remedy under Title VII or any other
federal, state or local antidiscrimination statute. OFCCP itself may
not rely on recordkeeping definitions to frame the appropriate analysis
for liability or remedy purposes when alleging a violation of the
nondiscrimination requirements of Executive Order 11246 (as opposed to
recordkeeping requirements).
As to the commenters' second argument, contractors will not be able
to manipulate basic qualifications in order to effectuate
discrimination, because the final rule provides adequate safeguards
against this problem. First, the final rule requires a contractor to
retain all the expressions of interest it considered, even those of
individuals who are not Internet Applicants.\9\ OFCCP will have access
to these records during a compliance evaluation and will review them as
appropriate to determine if discrimination exists. Second, OFCCP has
carefully defined ``basic qualifications'' in the final rule, requiring
that they be noncomparative, objective, and ``relevant to the
performance of the particular position and enabl[ing] the contractor to
accomplish business-related goals.'' Under the final rule, a contractor
must retain records of all such basic qualifications used to develop a
pool of Internet Applicants. Again, OFCCP will have access to these
records during a compliance evaluation.
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\9\ With the exception of expressions of interest from external
resume databases, where the massive volume of resumes makes such a
requirement impracticable. As noted below, as of January, 2005,
Monster.com reported that it had over 41 million resumes in its
database.
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Finally, OFCCP will rely on Census and other labor market data to
assess contractors' hiring practices for potential discrimination and
will carefully review the basic qualifications themselves. The Supreme
Court of the United States has authorized the use of comparisons
between actual hiring rates and population or labor force statistics to
prove hiring discrimination. See Int'l Bhd. of Teamsters v. United
States, 431 U.S. 324, 339 n.20 (1977) (population statistics);
Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307 n.12 (1977)
(labor force statistics). As noted in the preamble of the proposed
rule, hiring discrimination cases frequently rely on population and
labor force statistics. See, e.g., Griggs v. Duke Power Co., 401 U.S.
424, 430 n.6, 431 (1971) (relying on Census data about the general
population to find that a high school degree requirement had a
disparate impact on African-Americans); Dothard v. Rawlinson, 433 U.S.
321, 329-330 (1977) ( ``The application process itself might not
adequately reflect the actual potential applicant pool, since otherwise
qualified people might be discouraged from applying because of a self-
recognized inability to meet the very standards challenged as being
discriminatory.''); E.E.O.C. v. Joint Apprenticeship Comm. of Joint
Industrial Bd. of Elec. Indus., 186 F.3d 110, 119 (2d Cir. 1999)
(general population and qualified labor market data ``often form the
initial basis of a disparate impact claim * * *''). OFCCP also will
directly review whether the qualifications appear to be relevant to the
position at issue and whether they are of a type that have been subject
to disparate impact litigation, such as requirements as to height and
weight, arrest records, and high school degree or GED. See, e.g., 41
CFR 60-3.4(C) (requiring users to evaluate individual components of
hiring process ``where the weight of court decisions or administrative
interpretations hold that a specific procedure (such as height or
weight requirements or no-arrest records) is not job related in the
same or similar circumstances'').
As to the commenters' third argument against ``basic
qualifications''--that OFCCP will miss particular cases of disparate
impact discrimination--OFCCP disagrees that the proposed applicant
recordkeeping standards will make OFCCP less effective at finding and
remedying hiring discrimination. Indeed, OFCCP has determined that
applicant data under the proposed definition of Internet Applicant will
make the agency much more effective at finding and remedying hiring
discrimination across the range of cases. OFCCP's rationale can be
appreciated only through an understanding of how the agency uses
applicant data. OFCCP's use of applicant data is broader than
determining whether a particular contractor has engaged in hiring
discrimination. The distinction in uses of applicant data reflects
OFCCP's historical mission of focusing on systemic workplace
discrimination. In Reynolds Metal Co. v. Rumsfeld, 564 F.2d 663, 668
(4th Cir. 1977), the court described OFCCP's mission and contrasted it
with the EEOC's:
Both agencies are charged with the responsibility of eliminating
employment discrimination, but their specific missions differ. The
compliance office monitors government contractors to determine
whether they are meeting their commitments as equal opportunity
employers. It gives priority to the eradication of systemic
discrimination rather than to the investigation and resolution of
complaints about isolated instances of discrimination.
In keeping with its unique mission, OFCCP uses applicant data
broadly to deter all contractors under its jurisdiction from engaging
in systemic hiring discrimination, either in the form of disparate
impact or disparate treatment discrimination. OFCCP deters contractors
in two ways: (1) By monitoring all contractors through a tiered-review
approach that effectively targets contractors who have engaged in
hiring discrimination; and (2) by effectively investigating contractors
who have engaged in systemic hiring discrimination and obtaining
significant financial awards (along with instatement obligations) to
remedy such discrimination.
[[Page 58956]]
OFCCP primarily uses applicant data with respect to the first part
of the two-part deterrence model. OFCCP uses the data to target OFCCP
investigations at workplaces in which hiring discrimination is likely
to exist. OFCCP initially selects a contractors establishment for a
compliance evaluation based, in part, on a statistical analysis of
workforce demographic data the contractor submits on annual EEO-1
reports. Once OFCCP selects a contractor's establishment for a
compliance evaluation, OFCCP sends the contractor a ``scheduling
letter'' that asks the contractor to submit data on, among other
things, applicants and hires for a specified period. After receiving
the contractor's data, OFCCP analyzes the ratio of applicants and
hires, and, based on this analysis, determines whether to investigate
the contractor's hiring practices. This initial analysis of applicant
and hire data is a part of the compliance evaluation process known as
the ``desk audit.'' OFCCP considers desk audit results when determining
whether to conduct an on-site investigation, and the scope of any such
on-site investigation. OFCCP typically conducts many more desk audits
than on-site reviews, and uses the desk audit analysis to allocate
agency investigation resources toward workplaces where the likelihood
of a discrimination problem is highest.
Thus, inclusion of basic qualifications in the definition of
Internet Applicant under section 60-1.3 furthers OFCCP's goal of
targeting for in-depth reviews contractor's that are potentially the
worst offenders. If, during the desk audit, OFCCP were to target
contractors for more in-depth review based on Internet applicant data
that includes job seekers not meeting basic qualifications, OFCCP would
select contractors that rejected a high proportion of job seekers
because they were not even minimally qualified for the job. The result
would be that OFCCP would waste finite resources by focusing its on-
site reviews on contractors that were not the worst offenders. Under
the OFCCP approach, targeting will be based on a contractor's rejection
rate of qualified applicants, a better predictor of worst offenders. In
determining who are potentially the worst offenders for more in-depth
reviews, OFCCP will also analyze whether the contractor potentially
discriminated in hiring by comparing the demographic characteristics of
the applicants hired to the demographic characteristics of the
qualified labor market. During an in-depth review, OFCCP will be able
to analyze the contractor's use of basic qualifications by comparing
the demographic characteristics of Internet applicants meeting basic
qualifications with labor market data. Consequently, including basic
qualifications in the definition of Internet Applicant furthers OFCCP's
goal of focusing investigative resources on potentially the worst
offenders, while preserving OFCCP's ability to efficiently and
effectively review a contractor's hiring practices for discrimination.
In addition to the fact that such data would not permit meaningful
analysis to guide OFCCP resource allocation decisions, some practical
limits must be placed on collecting race, ethnicity, and gender
information in this context because of the massive numbers of resumes
in these databases. Otherwise, the applicant recordkeeping burdens
would be excessive. Several commenters proposed various alternative
definitions for ``basic qualifications'' that appeared to be attempts
to address these practical problems. For example, Gaucher Associates
contended that contractors could use sampling techniques to obtain
race, ethnicity and gender data where there are large numbers of
applicants. In limited circumstances contractors may use appropriate
sampling techniques to collect information required by these
regulations (See 41 CFR 60-3.4.A). However, sampling is not always
appropriate. For example, a random sample that includes many
individuals in a large resume database who have no interest in, nor
basic qualifications for, a particular position would provide far less
useful information than labor force statistics that are tailored for
the position and geographic location.
One commenter, ChevronTexaco Federal Credit Union (CTFCU), argued
that the proposed rule would impose undue burdens on small contractors
where a significant number of individuals who meet the basic
qualifications submit an expression of interest.
CTFCU contended that small contractors cannot afford automated
applicant tracking systems and they cannot manually consider all
individuals who meet the basic qualifications. CTFCU recommended that
OFCCP apply the proposed ``Internet Applicant'' definition and
associated obligations only to ``employees showing underutilization of
women and/or minorities,'' based on workforce demographic data from
EEO-1 reports.
OFCCP believes that data management techniques such as random
sampling or absolute numerical limits, discussed above, will enable
small contractors to comply with applicant recordkeeping requirements
without undue burden. OFCCP does not agree that CTFCU's recommendation
would necessarily help small businesses because the burden involved
with this proposal depends entirely on the amount of
``underutilization.'' Nor would this proposal provide records that
OFCCP requires to enforce E.O. 11246 for job categories in which there
was no ``underutilization.'' As OFCCP understands this proposal,
contractors would not be required to collect race, ethnicity or gender
information about any individuals considered for positions in job
categories that are not ``underutilized.'' However, the fact that a
broad occupational category, such as an AAP job group or EEO-1 job
category, is ``utilized'' does not necessarily imply that there is not
a discrimination problem in the recruiting or hiring process for the
jobs that make up those occupational categories.
3. ``Non-comparative''
In the proposed rule, OFCCP provided that ``basic qualifications''
must be ``non-comparative.'' The proposed rule provided examples of
qualifications that would and would not qualify as ``non-
comparative''': ``a qualification of three years' experience in a
particular position is a noncomparative qualification; a qualification
that an individual have one of the top five number of years' experience
among a pool of job seekers is a comparative qualification.'' OFCCP
retained this provision in the final rule.
The Chamber argued that ``[e]stablished caselaw permits employers
to set job qualifications `as high as [they] like [],' based on current
business needs, and permits employers to craft selection procedures
that enable them to identify the best-qualified candidates for the
job.'' Based on this argument, the Chamber asserted that the
``noncomparative'' component of the proposed rule should not be
interpreted ``to imply that a candidate becomes an ``applicant'' simply
because he or she possesses the `basic' qualifications for the
position.''
OFCCP disagrees with the Chamber's comments. OFCCP's proposed
definition of Internet Applicant determines contractors' recordkeeping
obligations, it does not impose substantive limits on the
qualifications a contractor may use to select employees. Under the
interpretation suggested by the Chamber, OFCCP would not have
sufficient records or information to evaluate whether a contractor's
hiring practices were discriminatory. In particular, OFCCP
[[Page 58957]]
would not be in a position to evaluate a contractor's comparative
assessment of applicants' qualifications. Therefore, OFCCP retained in
the final rule the requirement that ``basic qualifications'' must be
noncomparative.
4. ``Objective''
In the proposed rule, OFCCP provided that ``basic qualifications''
must be ``objective'' and not depend on the employer's subjective
judgment. OFCCP used the term ``third party'' in the proposed rule to
describe how to determine whether a qualification is objective: ``One
way to tell an advertised, basic qualification is objective is that a
third-party, unfamiliar with the employer's operation, would be able to
evaluate whether the job seeker possesses the qualification without
more information about the employer's judgment.''
ORC expressed concern that the term ``third party'' is ambiguous
and that OFCCP's proposed definition does not provide meaningful
guidance about whether a qualification is ``objective.'' Similarly,
Nancy J. Purvis argued that the reference to ``third parties'' would
not work in ``situations where only someone with sufficient technical
knowledge (of the company, of the industry, of the job, etc.) will be
able to evaluate whether or not an applicant meets the basic
requirements.''
OFCCP agrees with these commenters that, as described in the
proposed rule, the term ``objective'' left unanswered whether the
referenced ``third-party'' has the necessary technical expertise to
understand whether a candidate possesses a technical qualification. It
is not OFCCP's intent to preclude technical qualifications from being
``basic qualifications.'' Accordingly, OFCCP modified the second
sentence of subsection (4)(b) to provide that a basic qualification is
objective if a third party, with the contractor's technical knowledge,
would be able to evaluate whether the job seeker possesses the
qualification without more information about the contractor's judgment.
5. ``Job related''
In the proposed rule, OFCCP provided that ``basic qualifications''
must be ``job-related.'' The proposed rule defined ``job-related'' as
``relevant to performance of the job at hand and enabl[ing] the
employer to accomplish business-related goals.'' In response to the
comments, OFCCP eliminated the term ``job-related'' and replaced it
with the phrase, ``relevant to the performance of the particular
position and enabl[ing] the contractor to accomplish business-related
goals`` at subsection (4)(c) of the definition of ``Internet
Applicant''.
The Lawyers' Committee for Civil Rights Under Law and the
Leadership Conference on Civil Rights (LCCR) criticized the requirement
in the proposed rule that ``basic qualifications'' must be ``job
related.'' They noted that the Civil Rights Act of 1991 provides a
defense to disparate impact claims if the criteria having the disparate
impact can be shown to be ``job related for the position in question''
and ``consistent with business necessity.'' \10\ These commenters
argued that OFCCP's proposed rule leaves out the requirement that the
basic qualifications must be ``consistent with business necessity.''
LCCR further argued that ``the explanation of what is meant by `job-
related' seems to understate what the law requires by suggesting that
any `relevant' job criteria is sufficient to satisfy the legal
standard.''
---------------------------------------------------------------------------
\10\ The Lawyers' Committee for Civil Rights Under Law joined in
LCCR's comments. However, the Lawyers' Committee did not expressly
reference the Civil Rights Act of 1991 in its comments, but referred
only to ``established legal precedent.'' We understand the Lawyers'
Committee to be referencing the Civil Rights Act of 1991 with
respect to the standard for defense of a disparate impact claim.
---------------------------------------------------------------------------
OFCCP agrees with these commenters that use of the term ``job-
related'' in the proposed definition of ``Internet Applicant'' could
cause confusion because the term is also used in the Civil Rights Act
of 1991. Indeed, there is uncertainty as to the meaning of ``job
related'' under the Civil Rights Act of 1991.\11\ Therefore, OFCCP has
eliminated the term in the final rule and replaced it with the phrase,
``relevant to performance of the particular position and enabl[ing] the
contractor to accomplish business-related goals.''
---------------------------------------------------------------------------
\11\ The Civil Rights Act of 1991 does not define the terms
``job related'' or ``business necessity.'' Nor have the federal
courts of appeals agreed upon any single explanation of these terms.
Compare Bew v. City of Chicago, 252 F.3d 891, 894 (7th Cir. 2001)
(finding that the Civil Rights Act of 1991 adopted the Griggs
standard and noting that ``Griggs does not distinguish business
necessity and job relatedness as two separate standards. It states
that: `The touchstone is business necessity. If an employment
practice which operates to exclude [a protected group] cannot be
shown to be related to job performance, the practice is prohibited.'
To satisfy the standard, an employment test must `bear a
demonstrable relationship to successful performance of the jobs for
which it was used.' '' (citations omitted)), with Ass'n of Mexican-
American Educators v. State of California, 231 F.3d 572, 585 (9th
Cir. 2000) (en banc) (explaining that a `job related' test measures
``skills, knowledge or ability required for successful performance
of the job''), with Lanning v. Southeastern Pa. Transp. Auth., 181
F.3d 478, 489 (3d Cir. 1999) (``Our conclusion that the Act
incorporates this standard is further supported by the business
necessity language adopted by the Act. Congress chose the terms `job
related for the position in question' and `consistent with business
necessity.' Judicial application of a standard focusing solely on
whether the qualities measured by an entry level exam bear some
relationship to the job in question would impermissibly write out
the business necessity prong of the Act's chosen standard.'').
---------------------------------------------------------------------------
OFCCP disagrees with the commenters' suggestion that the ``business
necessity'' standard should be incorporated into the definition of
``basic qualifications.'' OFCCP does not intend to limit the
qualifications that could be ``basic qualifications'' only to those
which meet the ``business necessity'' standard. That standard is
applicable as a defense where a disparate impact has already been
proven. By including the ``relevant to performance of the particular
position * * *'' standard in the final rule as a limitation on
qualifications that could qualify as ``basic qualifications,'' OFCCP
intends to provide a reasonable limit on the nature of the
qualifications used only to define recordkeeping obligations. OFCCP
does not intend to define recordkeeping obligations through a
presumption that every putative ``basic qualification'' involves a
disparate impact. Of course, once it is established that a criterion
caused a disparate impact, the contractor has the burden of justifying
that the criterion is job related and consistent with business
necessity.
Part 4: ``The individual does not indicate that he or she is no longer
interested in employment in the position for which the employer has
considered the individual.''
In the proposed rule, the fourth part of the ``Internet Applicant''
definition provided that ``[t]he individual does not indicate that he
or she is no longer interested in employment in the position for which
the employer considered the individual.''
Several commenters, including EEAC, Morgan, Lewis & Bockius LLP,
and the Chamber, argued against the negative phrasing of this part of
the proposed definition of ``Internet Applicant'' because it implies
that an individual is presumed to be interested in a particular
position even before the employer contacts the individual. These
commenters expressed concern that an individual who does not respond to
an employer's inquiry would automatically qualify as an Internet
Applicant because the individual has not indicated ``that he or she is
no longer interested in the position.''
OFCCP does not believe that the negative phrasing of this part of
the proposed rule implies--and OFCCP does not intend for the language
to imply--a presumption that every individual who otherwise meets the
[[Page 58958]]
definition of Internet Applicant is deemed by OFCCP to be automatically
interested in the particular position, even before the contractor
contacts the individual. Subsection (5) explains that a contractor may
conclude that an individual has removed himself or herself from the
selection process or has otherwise indicated lack of interest in the
position based on the individual's express statement or on the
individual's passive demonstration of disinterest. For example, if an
individual declines a contractor's invitation for a job interview, he
or she has removed himself or herself from the selection process. If
the individual declines a job offer he or she has expressly shown
disinterest in the job. If an individual repeatedly fails to respond to
a contractor's telephone inquiries or emails asking about his or her
interest in a job, the individual has passively shown disinterest in
the job. In addition to determining an individual's abandonment of
interest through an express or passive negative response to the
contractor's inquiry as to whether the individual is interested in the
position, a contractor may also presume a lack of continuing interest
based on a review of the expression of interest. Statements pertaining
to the individual's interest in the specific position or type of
position at issue, the location of work, and his or her salary
requirements may provide the basis for determining the individual is no
longer interested in the position, provided that the contractor has a
uniformly and consistently applied policy or procedure of not
considering similarly situated job seekers. If the potential applicant
withdraws from further consideration after the point at which the
individual already has qualified as an ``Internet Applicant'' under
this final rule, the employer must retain any race, ethnicity, or
gender information which the individual already provided, as well as
the individual's expression of interest.
In response to the comments, which expressed concern with the
clarity of the proposed rule, OFCCP has slightly modified this part
(subsection (1)(iv)) in the final rule to read: ``(iv) The individual
at no point in the contractor's selection process prior to receiving an
offer of employment from the contractor, removes himself or herself
from further consideration or otherwise indicates that he or she is no
longer interested in the position.'' OFCCP also explained in subsection
(5) of the definition of ``Internet Applicant'' in the final rule that
a contractor may determine whether an individual has removed himself or
herself from consideration based on information the individual provided
in the expression of interest, such as salary requirements or
preferences as to type of work or location of work, provided that the
contractor has a uniformly and consistently applied policy or procedure
of not considering similarly situated job seekers. Subsection (5)
further explains that if a large number of individuals meet the basic
qualifications for the position, a contractor may also use data
management techniques, such as random sampling or absolute numerical
limits, to limit the number of individuals who must be contacted to
determine their interest in the position, provided that the sample is
appropriate in terms of the pool of those meeting the basic
qualifications.
Comments on OFCCP's Proposed Revisions To Record Retention Requirements
Section 60-1.12(a): Record Retention
In the proposed rule, OFCCP added to existing recordkeeping
requirements a provision which would require contractors to maintain
``any and all employment submissions through the Internet or related
electronic technologies, such as on-line resumes or resume databases
(regardless of whether an individual qualifies as an Internet Applicant
under 41 CFR 60-1.3).''
Many commenters expressed concern that the proposed record
retention requirements would impose significant burdens on contractors,
due to the massive volume of expressions of interest.\12\ TOC
Management Services (TOC) contended that the proposed rule would
require employers to maintain all unsolicited expressions of interest,
even those that were never considered by the employer. TOC asserted
that this proposed requirement runs contrary to OFCCP's longstanding
practice of allowing an employer to dispose of unsolicited expressions
of interest if the employer adheres to a general policy of not
considering them. The Chamber argued that the proposed recordkeeping
provision ``would require employers to search all the computer and
paper files of each of its employees to identify any expressions of
interest that were sent to someone in the company but were never routed
through the appropriate channels to those responsible for recruitment
and hiring.'' Kairos Services, Inc. suggested that contractors should
be required only to maintain records on individuals who qualify as
``Internet Applicants'' under the proposed rule.
---------------------------------------------------------------------------
\12\ See, e.g., Chairman of the U.S. House of Representatives
Committee on Education and the Workforce's Subcommittee on Employer-
Employee Relations, Kairos Services, Inc., Louisiana Pacific Corp.,
ORC Worldwide, Morgan, Lewis & Bockius LLP, National Association of
Manufacturers, and U.S. Chamber of Commerce.
---------------------------------------------------------------------------
In response to the comments, OFCCP modified section 60-1.12(a) of
the final rule to require contractors to maintain any and all
expressions of interest through the Internet or related electronic data
technologies as to which the contractor considered the individual for a
particular position, such as on-line resumes or internal resume
databases and records identifying job seekers contacted regarding their
interest in a particular position. In addition, for internal resume
databases, the contractor must maintain a record of each resume added
to the database, a record of the date each resume was added to the
database, the position for which each search of the database was made,
and corresponding to each search, the substantive search criteria used
and the date of the search. Also, for external resume databases, the
contractor must maintain a record of the position for which each search
of the database was made, and corresponding to each search, the
substantive search criteria used, the date of the search, and the
resumes of any job seekers who met the basic qualifications for the
particular position who are considered by the contractor. These records
must be maintained regardless of whether the individual qualifies as an
Internet Applicant under 41 CFR 60-1.3.
OFCCP agrees that the proposed rule could present unwarranted
recordkeeping burdens if the contractor receives a large number of
expressions of interest. Therefore, OFCCP modified this provision in
the final rule to clarify that contractors must maintain ``expressions
of interest through the Internet or related electronic data
technologies as to which the contractor considered the individual for a
particular position * * *'' [emphasis added]. ``Considers the
individual for employment in a particular position'' (as defined in
subsection 3 of the definition of ``Internet Applicant'') means that
the contractor assesses the substantive information provided in the
expression of interest with respect to any qualifications involved with
a particular position. A contractor may establish a protocol under
which it refrains from considering expressions of interest that are not
submitted in accordance with standard procedures the contractor
establishes. Likewise, a contractor may establish a protocol under
which it refrains from considering expressions of interest, such as
unsolicited resumes, that are not
[[Page 58959]]
submitted with respect to a particular position.
If there are a large number of expressions of interest to be
considered, the contractor does not ``consider'' the individual for
employment in a particular position'' by using data management
techniques that do not depend on assessment of qualifications, such as
random sampling or absolute numerical limits, to reduce the number of
expressions of interest to be considered, provided that the sample is
appropriate in terms of the pool of those submitting expressions of
interest.
Under section 60-1.12(a), contractors avoid significant burdens
even if there are large numbers of expressions of interest, because
contractors are not required to retain records regarding individuals
who were never considered for a particular position. However, OFCCP
disagrees with the suggestion that contractors be required to maintain
only expressions of interest of individuals who qualify as ``Internet
Applicants.'' Part of the reason that OFCCP requires contractors to
maintain such records is to ensure that they are actually complying
with the definition of ``Internet Applicant.'' OFCCP could not verify
the contractor's compliance with the ``Internet Applicant'' definition
if the agency did not have access to records of individuals whom the
contractor contends did not meet that definition.
Several commenters, including NAM, Siemens, and TOC, were also
concerned that the proposed rule would require contractors to maintain
a ``snapshot'' of the resume database for each search. These commenters
suggested that OFCCP require employers to retain any resume databases,
specific search terms used in each search, and the date of each search.
OFCCP agrees with these commenters and believes that their
recommended approach avoids recordkeeping burdens and affords OFCCP
adequate records to ensure compliance. Therefore, OFCCP added a
provision to section 60-1.12(a) of the final rule which requires
contractors to maintain the following information from internal resume
databases: ``A record of each resume added to the database, a record of
the date each resume was added to the database, the position for which
each search of the database was made, and corresponding to each search,
the substantive search criteria used and the date of the search * *
*.''
Maly Consulting LLC was concerned that the proposed rule would
require contractors to download and retain all resumes on a third-party
resume database, whenever the contractor searched the database for
potential applicants. OFCCP agrees that it would be unreasonable to
require an employer to maintain a copy of every record on a third-party
resume database. For example, Monster.com reported that as of January,
2005, it had over 41 million resumes in its resume database. Therefore,
in the context of a third-party resume database, the final rule
requires contractors to retain resumes only of job seekers who met the
basic qualifications for the particular position who are considered by
the contractor, and records identifying job seekers contacted regarding
their interest in a particular position, along with a record of the
position for which each search of the database was made, the
substantive search criteria used, and the date of the search.
Section 60-1.12(c)(1)(ii): ``Where possible, the gender, race, and
ethnicity of each applicant (i.e., submissions that are not through the
Internet and related electronic technologies) and Internet Applicant as
defined in 41 CFR 60-1.3.''
In the proposed rule, OFCCP added the term ``Internet Applicant''
into an existing provision of OFCCP regulations which requires
contractors to identify ``where possible, the gender, race, and
ethnicity of each applicant.'' As discussed under Part 1 of the
definition of Internet Applicant above, OFCCP modified this provision
in the final rule to eliminate dual standards when the contractor
accepts or considers expressions of interest submitted through either
the Internet or traditional means for a particular position. Thus,
under the final rule, the contractor must identify, ``where possible,
the gender, race, and ethnicity of each applicant or Internet Applicant
as defined in 41 CFR 60-1.3, whichever is applicable to the particular
position.''
Obligation To Solicit Race, Ethnicity and Gender Data
Northern California and Silicon Valley Industry Liaison Group
(NCILG) argued that neither UGESP nor existing OFCCP regulations
required contractors to solicit or obtain race, ethnicity, and gender
data and that OFCCP misinterpreted UGESP and existing OFCCP regulations
by asserting such a requirement in the preamble of the proposed rule.
NCILG further contended that UGESP and OFCCP's existing regulations
required only that contractors ``maintain'' race, ethnicity, and gender
data, but there was no affirmative obligation to obtain or solicit such
data. NCILG and Affirmative Action Partners, Inc. objected to any
requirement that contractors solicit race, ethnicity, or gender
information from applicants.
OFCCP disagrees with these commenters. OFCCP historically has taken
the position that contractors have some obligation to collect race,
ethnicity, and gender information from applicants. OFCCP intends to
make clear that, under the final rule, contractors are required to
solicit race, ethnicity, and gender information from ``applicants'' or
``Internet Applicants,'' whichever is applicable to the particular
position. OFCCP intends this to be a mandate, not an option, because
OFCCP requires this information to enforce E.O. 11246, as discussed
throughout this preamble.
SHRM argued that requiring employers to collect race, ethnicity,
and gender data from all Internet Applicants would impose significant
burdens on employers. OFCCP disagrees that the final rule imposes
significant burdens on contractors compared with existing recordkeeping
requirements. The final rule draws an appropriate balance between, on
the one hand, the need of OFCCP and the contractor for certain
information and records to enforce and comply with E.O. 11246, and, on
the other hand, the practical realities of Internet recruiting.
Several commenters, including GBCS, NILG, and SIOP, expressed
concern that the OFCCP proposal does not clearly identify the point in
the employment process at which contractors are required to collect
race, ethnicity and gender data. Under the final rule, contractors are
required to solicit race, ethnicity, and gender data from all
individuals who meet the definition of Internet Applicant. OFCCP does
not mandate a specific time or point in the employment process that
contractors must solicit this information, so long as the information
is solicited from all Internet Applicants.
Methods for Complying With the Rule
Several commenters, including NILG, Thomas Houston Associates,
Inc., and SHRM, expressed concern that the OFCCP proposal does not
provide clear guidance on permissible methods for collecting race,
ethnicity, and gender data. NCILG requested that OFCCP ``reaffirm''
that contractors have no obligation to somehow obtain race, ethnicity
or gender data from individuals who refuse to voluntarily disclose such
information in response to the contractor's solicitation. GBCS
questioned whether contractors would be required to make a visual
observation of individuals who refuse to voluntarily disclose race,
ethnicity or gender information on a written solicitation
[[Page 58960]]
form. Nancy J. Purvis argued that contractors should be permitted to
continue to use visual observation as a means of identifying the race,
ethnicity and gender of applicants. SHRM recommended that employers be
permitted to gather race, ethnicity, and gender data through either
visual observation or self-identification. Affirmative Action Partners,
Inc. (AAPI) offered several problems with collecting and maintaining
race, ethnicity, and gender data on job applicants. In particular, AAPI
noted that it does not promote EEO compliance to allow hiring managers
to have access to candidates' race, ethnicity, or gender.
OFCCP agrees with these commenters that further clarification of
these issues would promote compliance with applicant recordkeeping
requirements. OFCCP recently issued a Policy Directive on this subject.
See ADM 04-1, ``Contractor Data Tracking Responsibilities,'' which is
available on OFCCP's Web site at http://www.dol.gov/esa/regs/compliance/ofccp/directives/dir265.htm.
The Directive was prompted by
the Office of Management and Budget's (OMB) 1997 Revision to the
Standards for the Classification of Federal Data on Race and Ethnicity
(62 FR 58782) and its Provisional Guidance on the Implementation of the
1997 Standards for Federal Data on Race and Ethnicity (2000). The OMB
Standards and Provisional Guidance emphasize self-reporting or self-
identification as the preferred method for collecting data on race and
ethnicity. In situations where self-reporting is not practicable or
feasible, observer information may be used to identify race and
ethnicity. Prior to the 1997 Standards, the position of the Federal
Government was that the preferred method of collecting race and ethnic
data was visual observation and that self-reporting was not encouraged.
OFCCP issued the Directive on Contractor Data Tracking
Responsibilities to make OFCCP's policy on collection of demographic
information on applicants consistent with OMB's 1997 Standards. The
Directive is applicable to collection of race, ethnic and gender
information about applicants under all of OFCCP's regulations,
including 41 CFR 60-1.12(c) and 41 CFR Part 60-3. The Directive
encourages contractors to use tear off sheets, post cards, or short
forms to request demographic information from applicants. These methods
can be adapted to electronic formats for recordkeeping regarding
Internet Applicants. For example, some contractors have developed
``electronic tear off sheets'' for use with electronic applications
that separate reported demographic information to be maintained for
record keeping from electronic applications reviewed by employers.
Other contractors have sent e-mails to individuals submitting
electronic applications, requesting additional information necessary to
process the application, including demographic information. The
contractor's invitation to an applicant to self-identify his or her
race, ethnicity or gender is always to state that the provision of such
information is voluntary. Visual observation may be used when the
applicant appears in person and declines to self-identify his or her
race, ethnicity or gender.
Use of Labor Force Statistics and Census Data
In the NPRM, OFCCP noted that it will ``compare the proportion of
women and minorities in the contractor's relevant applicant pool with
labor force statistics or other data on the percentage of women and
minorities in the relevant labor force. If there is a significant
difference between these figures, OFCCP will investigate further as to
whether the contractor's recruitment and hiring practices conform with
E.O. 11246 standards.''
Several commenters, including EEAC, ORC, and the Chamber, expressed
concern about OFCCP's proposed use of labor force statistics and Census
data under the proposed rule. ORC, Gaucher Associates, and the Chamber
argued that Census and workforce data may not provide a valid basis for
assessing contractors' recruitment or hiring practices because these
data do not reflect current labor market conditions or because the
Census occupational categories are too general to provide accurate
workforce data for specific jobs. ORC recommended that OFCCP should
rely on each contractor's own availability statistics as a basis for
assessing the contractor's recruitment and hiring practices.
OFCCP disagrees with these commenters that appropriate Census and
other labor market data are not reliable benchmarks for assessing
contractors' recruitment and hiring practices. As noted above, courts
frequently approve of this type of data in recruitment and hiring
discrimination cases under Title VII. OFCCP intends to use such data
during compliance reviews to determine whether basic qualifications
have an adverse impact on the basis of race, ethnicity, or gender.
OFCCP does not agree that it should rely exclusively on availability
data compiled by contractors, although OFCCP will generally consider
such data. OFCCP must ensure that such data is accurate for compliance
monitoring and enforcement purposes.
The NCILG urged OFCCP to rescind the requirement that contractors
conduct adverse impact analyses of their hiring practices. OFCCP
believes such self-analyses are important steps for achieving and
maintaining an equal opportunity workplace. Furthermore, the final rule
relates to recordkeeping and solicitation of demographic information
under section 60-1.12. Accordingly, this final rule would not be the
appropriate vehicle for amending UGESP, even if the agency were
inclined to do so. A commenter raised concerns about how OFCCP will
interpret procedures regarding Internet Applicant recordkeeping under
both section 1.12 and UGESP. OFCCP has addressed these concerns by
adding a new regulatory provision, section 60-1.12(d), to the final
rule, as discussed above.
ORC requested that OFCCP clarify what ``significant difference''
means and recommended that it be defined as two standard deviations or
more. OFCCP agrees that the minimum standard for what is statistically
significant is generally accepted to be two standard deviations,
although the agency may allocate its investigative resources by
focusing on larger statistical disparities or other factors, such as
the size of the potential affected class.
Effective Date
Several commenters, such as EEAC and NILG, requested that
contractors be afforded sufficient time to implement the new applicant
recordkeeping standards to be promulgated in the final rule. These
commenters noted that contractors will have to make significant changes
in technology and personnel practices in order to implement the new
requirements. For example, NILG asserted that ``[f]or some companies,
this will involve an extensive process of clarifying need, requesting
information from possible vendors, seeking proposals from vendors,
allowing a period for vendor evaluation, selection and subsequent
company customization, implementation and system testing.''
OFCCP agrees with these commenters that contractors should be
afforded sufficient time to implement the recordkeeping requirements of
the final rule. Therefore, OFCCP has established an effective date of
one-hundred twenty days after the date of the publication of the final
rule in the Federal Register.
[[Page 58961]]
Regulatory Procedures
Executive Order 12866
The Department is issuing this final rule in conformance with
Executive Order 12866. As noted in the preamble to the NPRM, this rule
constitutes a ``significant regulatory action'' within the meaning of
Executive Order 12866 (although not an economically significant
regulatory action under the Order). As such, this rule is subject to
review by the Office of Management and Budget (``OMB''). However, the
Department has determined that this rule will not have an annual effect
on the economy of $100 million or more, or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities. Therefore, the Department
has concluded that this final rule is not ``economically significant''
as defined in section 3(f)(1) of EO 12866. As a result, the cost-
benefit analysis called for under section 6(a)(3)(C) of the Executive
Order is not required.
Congressional Review Act
This regulation is not a major rule for purposes of the
Congressional Review Act.
Executive Order 13132 (Federalism)
OFCCP has reviewed this rule in accordance with Executive Order
13132 regarding federalism, and has determined that it does not have
``federalism implications.'' The rule does not ``have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Regulatory Flexibility Act
As explained in the Proposed Rule, this final rule will not change,
but instead will help to clarify, existing obligations for Federal
contractors. Consequently, under the RFA, as amended, 5 U.S.C. 605(b),
it is certified that this rule will not have a significant economic
impact on a substantial number of small entities.
Unfunded Mandates Reform Act
This final rule does not include any Federal mandate that may
result in increased expenditures by state, local and tribal
governments, or by the private sector, of $100,000,000 or more in any
one year.
Paperwork Reduction Act
This final rule does not introduce any new information collection
requirements. It simply clarifies existing requirements already
approved by the Office of Management and Budget under the Paperwork
Reduction Act of 1995. The information collection requirements for 41
CFR Part 60-1 are approved under OMB control numbers 1215-0072 (Supply
and Service) and 1215-0163 (Construction).
Executive Order 13175 (Consultation and Coordination With Indian Tribal
Governments)
The Department certifies that this final rule does not impose
substantial direct compliance costs on Indian tribal governments.
Executive Order 12988 (Civil Justice Reform)
This final rule has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the Federal court system. The final rule has been written so as to
minimize litigation and provide a clear legal standard for affected
conduct, and has been reviewed carefully to eliminate drafting errors
and ambiguities.
List of Subjects in 41 CFR Part 60-1
Administrative practice and procedure, Civil rights, Employment,
Equal employment opportunity, Government contracts, Government
procurement, Investigations, Reporting and recordkeeping requirements.
Signed at Washington, DC, this 3rd day of October, 2005.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.
0
Accordingly, part 60-1 of Title 41 of the Code of Federal Regulations
is amended as follows:
PART 60-1--OBLIGATIONS OF CONTRACTORS AND SUBCONTRACTORS
0
1. The authority citation for part 60-1 continues to read as follows:
Authority: Section 201, E.O. 11246, 30 FR 12319, 3 CFR, 1964-
1965 Comp., p. 399, as amended by E.O. 11375, 32 FR 14303, 3 CFR,
1966-1970 Comp., p. 684, E.O. 12086, 43 FR 46501, 3 CFR, 1978 Comp.,
p. 230 and E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258.
0
2. In Sec. 60-1.3, a new definition is added below ``government
contract'' and above ``minority group'' to read as follows:
Sec. 60-1.3 Definitions.
* * * * *
Internet Applicant. (1) Internet Applicant means any individual as
to whom the following four criteria are satisfied:
(i) The individual submits an expression of interest in employment
through the Internet or related electronic data technologies;
(ii) The contractor considers the individual for employment in a
particular position;
(iii) The individual's expression of interest indicates the
individual possesses the basic qualifications for the position; and,
(iv) The individual at no point in the contractor's selection
process prior to receiving an offer of employment from the contractor,
removes himself or herself from further consideration or otherwise
indicates that he or she is no longer interested in the position.
(2) For purposes of paragraph (1)(i) of this definition, ``submits
an expression of interest in employment through the Internet or related
electronic data technologies,'' includes all expressions of interest,
regardless of the means or manner in which the expression of interest
is made, if the contractor considers expressions of interest made
through the Internet or related electronic data technologies in the
recruiting or selection processes for that particular position.
(i) Example A: Contractor A posts on its web site an opening for
a Mechanical Engineer position and encourages potential applicants
to complete an on-line profile if they are interested in being
considered for that position. The web site also advises potential
applicants that they can send a hard copy resume to the HR Manager
with a cover letter identifying the position for which they would
like to be considered. Because Contractor A considers both Internet
and traditional expressions of interest for the Mechanical Engineer
position, both the individuals who completed a personal profile and
those who sent a paper resume and cover letter to Contractor A meet
this part of the definition of Internet Applicant for this position.
(ii) Example B: Contractor B posts on its web site an opening
for the Accountant II position and encourages potential applicants
to complete an on-line profile if they are interested in being
considered for that position. Contractor B also receives a large
number of unsolicited paper resumes in the mail each year.
Contractor B scans these paper resumes into an internal resume
database that also includes all the on-line profiles that
individuals completed for various jobs (including possibly for the
Accountant II position) throughout the year. To find potential
applicants for the
[[Page 58962]]
Accountant II position, Contractor B searches the internal resume
database for individuals who have the basic qualifications for the
Accountant II position. Because Contractor B considers both Internet
and traditional expressions of interest for the Accountant II
position, both the individuals who completed a personal profile and
those who sent a paper resume and cover letter to the employer meet
this part of the definition of Internet Applicant for this position.
(iii) Example C: Contractor C advertises for Mechanics in a
local newspaper and instructs interested candidates to mail their
resumes to the employer's address. Walk-in applications also are
permitted. Contractor C considers only paper resumes and application
forms for the Mechanic position, therefore no individual meets this
part of the definition of an Internet Applicant for this position.
(3) For purposes of paragraph (1)(ii) of this definition,
``considers the individual for employment in a particular position,''
means that the contractor assesses the substantive information provided
in the expression of interest with respect to any qualifications
involved with a particular position. A contractor may establish a
protocol under which it refrains from considering expressions of
interest that are not submitted in accordance with standard procedures
the contractor establishes. Likewise, a contractor may establish a
protocol under which it refrains from considering expressions of
interest, such as unsolicited resumes, that are not submitted with
respect to a particular position. If there are a large number of
expressions of interest, the contractor does not ``consider the
individual for employment in a particular position'' by using data
management techniques that do not depend on assessment of
qualifications, such as random sampling or absolute numerical limits,
to reduce the number of expressions of interest to be considered,
provided that the sample is appropriate in terms of the pool of those
submitting expressions of interest.
(4) For purposes of paragraph (1)(iii) of this definition, ``basic
qualifications'' means qualifications--
(i)(A) That the contractor advertises (e.g., posts on its web site
a description of the job and the qualifications involved) to potential
applicants that they must possess in order to be considered for the
position, or
(B) For which the contractor establishes criteria in advance by
making and maintaining a record of such qualifications for the position
prior to considering any expression of interest for that particular
position if the contractor does not advertise for the position but
instead uses an alternative device to find individuals for
consideration (e.g., through an external resume database), and
(ii) That meet all of the following three conditions:
(A) The qualifications must be noncomparative features of a job
seeker. For example, a qualification of three years' experience in a
particular position is a noncomparative qualification; a qualification
that an individual have one of the top five number of years' experience
among a pool of job seekers is a comparative qualification.
(B) The qualifications must be objective; they do not depend on the
contractor's subjective judgment. For example, ``a Bachelor's degree in
Accounting'' is objective, while ``a technical degree from a good
school'' is not. A basic qualification is objective if a third-party,
with the contractor's technical knowledge, would be able to evaluate
whether the job seeker possesses the qualification without more
information about the contractor's judgment.
(C) The qualifications must be relevant to performance of the
particular position and enable the contractor to accomplish business-
related goals.
(5) For purposes of paragraph (1)(iv) of this definition, a
contractor may conclude that an individual has removed himself or
herself from further consideration, or has otherwise indicated that he
or she is no longer interested in the position for which the contractor
has considered the individual, based on the individual's express
statement that he or she is no longer interested in the position, or on
the individual's passive demonstration of disinterest shown through
repeated non-responsiveness to inquiries from the contractor about
interest in the position. A contractor also may determine that an
individual has removed himself or herself from further consideration or
otherwise indicated that he or she is no longer interested in the
position for which the contractor has considered the individual based
on information the individual provided in the expression of interest,
such as salary requirements or preferences as to type of work or
location of work, provided that the contractor has a uniformly and
consistently applied policy or procedure of not considering similarly
situated job seekers. If a large number of individuals meet the basic
qualifications for the position, a contractor may also use data
management techniques, such as random sampling or absolute numerical
limits, to limit the number of individuals who must be contacted to
determine their interest in the position, provided that the sample is
appropriate in terms of the pool of those meeting the basic
qualifications.
* * * * *
0
3. In Sec. 60-1.12:
0
A. The third sentence in paragraph (a) is revised;
0
B. Paragraph (c)(1)(ii) is revised;
0
C. Paragraph (e) is removed;
0
D. Paragraph (d) is redesignated as paragraph (e); and
0
E. A new paragraph (d) is added.
The revisions and addition read as follows:
Sec. 60-1.12 Record retention.
(a) General requirements. * * * Such records include, but are not
necessarily limited to, records pertaining to hiring, assignment,
promotion, demotion, transfer, lay off or termination, rates of pay or
other terms of compensation, and selection for training or
apprenticeship, and other records having to do with requests for
reasonable accommodation, the results of any physical examination, job
advertisements and postings, applications, resumes, and any and all
expressions of interest through the Internet or related electronic data
technologies as to which the contractor considered the individual for a
particular position, such as on-line resumes or internal resume
databases, records identifying job seekers contacted regarding their
interest in a particular position (for purposes of recordkeeping with
respect to internal resume databases, the contractor must maintain a
record of each resume added to the database, a record of the date each
resume was added to the database, the position for which each search of
the database was made, and corresponding to each search, the
substantive search criteria used and the date of the search; for
purposes of recordkeeping with respect to external resume databases,
the contractor must maintain a record of the position for which each
search of the database was made, and corresponding to each search, the
substantive search criteria used, the date of the search, and the
resumes of job seekers who met the basic qualifications for the
particular position who are considered by the contractor), regardless
of whether the individual qualifies as an Internet Applicant under 41
CFR 60-1.3, tests and test results, and interview notes. * * *
* * * * *
(c) * * *
(1) * * *
(ii) Where possible, the gender, race, and ethnicity of each
applicant or Internet Applicant as defined in 41 CFR 60-1.3, whichever
is applicable to the particular position.
* * * * *
[[Page 58963]]
(d) Adverse impact evaluations. When evaluating whether a
contractor has maintained information on impact and conducted an
adverse impact analysis under part 60-3 with respect to Internet hiring
procedures, OFCCP will require only those records relating to the
analyses of the impact of employee selection procedures on Internet
Applicants, as defined in 41 CFR 60-1.3, and those records relating to
the analyses of the impact of employment tests that are used as
employee selection procedures, without regard to whether the tests were
administered to Internet Applicants, as defined in 41 CFR 60-1.3.
* * * * *
[FR Doc. 05-20176 Filed 10-6-05; 8:45 am]
BILLING CODE 4510-CM-P
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