The U.S. Equal Employment Opportunity Commission

Proposed March 2004 - Not Final
March 17, 2008 - Commission voted not to finalize. This document is no longer under consideration by the Commission.

Questions and Answers: Definition of "Job Applicant" for Internet and Related Electronic Technologies

1. Why is the EEOC, in conjunction with DOL, DOJ, and OPM, issuing this document?

There is a need for a federal explanation of employers' recordkeeping obligations for job applicants in light of increased reliance on the Internet for job searches. The magnitude of Internet applications increased exponentially during the late 1990s. Characterized by massive amounts of information transmitted rapidly between job seekers and employers, the new technologies encourage employers and job seekers to explore the labor market broadly and freely.

2. Why is this definition linked to the Uniform Guidelines on Employee Selection Procedures (UGESP)?

The definition of "applicant" under UGESP is key to several recordkeeping provisions. The 1979 definition of "applicant" is in Questions and Answers (Qs and As) issued under UGESP by the EEOC and its sister UGESP agencies: the Department of Labor (OFCCP), the Department of Justice, and the U.S. Office of Personnel Management. The definition is at Q and A 15, 44 Fed. Reg. 11,998 (March 2, 1979).

3. What does UGESP call for?

Under UGESP, employers "should maintain and have available for inspection records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group. . . ." 29 C.F.R. 1607.4A. When hiring, each covered entity should maintain and have available such information with respect to applicants. When promoting, each covered entity should maintain and have available such information with respect to candidates. If tests and selection procedures are shown to have a disparate impact, then UGESP sets forth different methods for determining whether the tests or selection procedures are valid and job-related. UGESP is at 29 C.F.R. Part 1607 (EEOC) and 41 C.F.R. Part 60-3 (OFCCP).

4. Does this document change the text of UGESP?

No. UGESP and the existing Qs and As 1 - 93 (issued in 1979 and 1980) are not changed. This document adds new Qs and As 94 - 98.

5. Does this document change Title VII or Executive Order 11246?

No. This document does not change Title VII or Executive Order 11246.

Under Title VII and Executive Order 11246, as amended, employers and their recruiters are responsible for ensuring that all aspects of their recruitment and selection processes are lawful. An employer's obligation to avoid unlawful practices attaches regardless of the definition of "applicant."

6. Does this document change how the definition of "applicant" is treated?

The existing definition of "applicant" continues to apply to traditional, hard-copy applications. This definition, which can be found at Q & A 15 of the 1979 Qs and As, states:

"The precise definition of the term 'applicant' depends upon the user's recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities. This interest might be expressed by completing an application form, or might be expressed orally, depending on the employer's practice."

The new document provides a definition for "applicant" in the context of the Internet and related electronic technologies only.

7. What do you mean by the "Internet and related electronic technologies"?

This includes, for example: e-mail; various web sites such as third party job or resume banks and employment web pages; electronic scanning technology; applicant tracking systems; and internal databases of job seekers.

8. What is the definition of "applicant" in the context of the Internet and related electronic technologies?

In order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred:

  1. the employer has acted to fill a particular position;
  2. the individual has followed the employer's standard procedures for submitting applications; and
  3. the individual has indicated an interest in the particular position.

9. What if the employer uses both traditional and Internet and electronic recruitment and selection methods?

For those positions subject to traditional recruitment and selection techniques, the existing recordkeeping standards apply. For those positions subject to Internet/electronic recruitment and selection techniques, the new recordkeeping standards apply.

10. Do I need to validate all employment tests administered online or in person?

If an employment test has a disparate impact, then it must be validated under Title VII and UGESP, whether administered online or in person.

11. How can I get a copy of this document?

See the Federal Register dated March 4, 2004 for the proposed Q & A.

This page was last modified on March 17, 2008.

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