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Part 1 of this article focused on the important role that “disposition codes” play in the employer’s ability to perform its own meaningful adverse impact analyses and the employer’s ability to defend an allegation of discrimination/demand for back pay based on the OFCCP’s analyses of the data it provides…that is, the importance of Counting the Right Numbers.
In my experience, most disposition codes do a fairly good job of disclosing when each individual fell out of the process. That is probably because the systems many employers currently are using are built out of an original Applicant Tracking System (ATS). In fact, in the “Ask the Experts” online forum of LocalJobNetwork.com, we still see questions about discrimination analyses that refer to “our ATS” – which ought to be a misnomer but which often is not.
Decades ago, these systems were marketed to assist in time management of recruitment and selection. The original ATS was concerned with how many days it took to fill requisitions – including how long applications sat in Ray Recruiter’s inbox and how many times Helen Hiring Manager re-scheduled her interviews. So, the most basic ATS typically can tell us when an individual fell out of the process, at least pre- or post-interview, post-offer, etc. That’s somewhat relevant to counting the right numbers – provided that the “when” also includes some content.
Discrimination analyses are not about “tracking” applicants! Statistical discrimination analyses must be about the employer’s denial of an opportunity as well as whether the denial was unlawful. If the statistical analysis shows a disproportionate number of women or Asians, etc. was not selected, the law presumes this was because of sex or race. To rebut this presumption, the burden is on the employer to demonstrate its reason was lawful. If not gender, if not race, why?
As promised in Part I, Part II of this article focuses on some examples of disposition codes that have sufficient content to disclose why an individual was excluded, including reasons that have nothing to do with either the employer’s “denial” of the job, or nothing to do with its assessment of qualifications. Because not counting the wrong numbers is critical to Counting the Right Numbers.
Exemplars of Some Disposition Codes
First of all, disposition codes must be customized by each employer. I’ve tried to include in this list disposition codes that the reader might need to tailor only slightly to your organization as well as some that will clearly not work, e.g., some applicable only to higher education, some relevant only where there is a union, etc. But they should provide food for some creative thinking. No one could possibly design good disposition codes unless they knew a great deal about the organization structure, culture, selection process, pay policies, etc.
Compliance Guidance: I strongly urge these three italicized codes be included in any employer’s schedule of codes. These are very common circumstances and only rarely have I seen employers prepared with such disposition codes – which means the ones that were used in these circumstances are always untrue.
Some/many of these codes would be unnecessary/duplicative if the employer included its “rules” and/or more specifics of the job in the advertising of the “particular position.” Those employers who may not – or choose not to – inquire about pay history could obviate some problems of contradictory expectations if they disclosed the likely starting salary range in the ad so as – hopefully – to discourage expressions of interest from people whose expectations are incompatible with the employers’ budgets and/or pay policies.
I strongly recommend that an employer not “consider” a person for a job s/he didn’t express interest in. You may “recruit” a job seeker by inviting him or her to apply – in accordance with your usual protocols. You may not “move him to the other requisition” – unless you move everyone, in which case you will disposition everyone for both requisitions. To move one or some is to make a selection decision about all. Don’t do it. Just don’t.
Consistency is essential so be sure everyone understands that this is not “guidance” but a requirement. If the organization has a rule, every selecting official must apply it universally. I’ve looked very carefully and there is no dispensation in Federal law for higher education – or for Vice Presidents of this or that!
Rejected – Pursuant to Collective Bargain Agreement with AAA (e.g., this could mean not senior or not “senior qualified”)
Rejected – Pursuant to Collective Bargaining Agreement with BBB
Rejected – Either no prior work history or cannot determine prior work history
Rejected – Did not provide sufficient information to verify past employment
Rejected – Unsatisfactory work history – periods of unexplained unemployment
Rejected – Unsatisfactory work history – terminated for cause
Rejected – Terminated with less than 90 days from similar job/working conditions
Rejected – Unsatisfactory work history – job hopping
Rejected – Unsatisfactory work history – reasons for leaving
Rejected – Experience not directly related
Rejected – Experience not most recent
Rejected – Experience is repetitive – no progression in KSAs
Rejected – No demonstrated ability to lift ___ pounds
Rejected – No demonstrated ability to _____________ (specify)
Rejected – Not as qualified – amount of experience
Rejected – Not as qualified – type of experience/type of employer
Rejected – Not as qualified – skills
Rejected – Not as qualified – education
Rejected – Not as qualified – no current required license
Rejected – Failed standardized test (specify)
Rejected – Failed job sample test (specify)
Rejected – Test ranking not competitive with others
Rejected – Job related conviction
A Note on Other Record Keeping/Coding Issues
Non-competitive selections such as “in line” promotions or elevations in pay or classification level purely as a result of “time in grade” are properly the subject of another article – though I am compelled to add that they should never be analyzed in combination with competitive applicant pools for competitive promotions.
Compliance Guidance: In an adverse impact analysis, always combine both internal and external applicants when both were considered for the same opportunity – whether the persons selected were “new hires,” “promotions” or even “demotions” (when sought by the employee) is a payroll consequence only and is irrelevant to a discrimination analysis. Failing to include persons who were selected but not “hired” or “promoted” when they are correctly included in the applicant pool effectively treats/counts them as rejected and consequently, counts the wrong numbers!
Label and explain but answer the question the agency should have asked in Item 18 b and c, not the one they do ask. They’ve had over 50 years to get this right! You can, and probably should, report the non-competitive promotions with “from/to” departments, as requested, though this too, is irrelevant and a hold-over from when the OFCCP wanted “transfers” reported. When in doubt, do it right and explain, explain, explain – and cite their own regulations back to them. Do this in the first instance – very matter-of-factly and as if of course the OFCCP knows this is not only a “best practice” but what the law demands. Ellen Shong & Associates always reports to the OFCCP and includes in the contractor’s own analyses all the opportunities its clients afforded to applicants, not only those that resulted in a “hire” or a “promotion” and captions them as “selections.” We tell the agency what we’ve done and why and very rarely is this even commented on.
We’ve had the same positive experience with the way we report “promotions.” We report non-competitive (i.e., “in line/time in grade,” promotions) separately from those with official “bidders. Mischaracterized “non-competitive promotions” such as those that often occur at the most senior levels are properly the subject of another article and are not discussed here.
However, I have never seen an electronic system handle other sorts of non-competitive selections which may occur infrequently and are truly quite different than any of the selections we’ve “disposed of” above.
“Finding a job for” a spouse or domestic partner happens rather often in higher education but as the labor market shrinks, other employers may also find that in order to hire one, they also have to hire the other. Sometimes an employer “makes a place” for an employee whose job has been eliminated elsewhere or who had to relocate to another of its establishments for some significant personal or health reason. If such an employee competes for a vacant position, s/he would be handled in the normal way, but if s/he wasn’t required to compete, I urge employers to develop disposition codes for such circumstances. Other circumstances for which one might need additional codes – remember, our goal is to tell it like it really was – are situations where an individual is entitled to return to a job; for example, from the military or FMLA leave, or as part of the settlement of a lawsuit or grievance.
When mergers and acquisitions are so common, employers need also a way to recognize any contractual obligations of the sale that provide employment opportunities for only the employees of the acquired company – or some of them.
Clearly, none of the placements so described should be included in any statistical analysis. In an abundance of rigor, you might “report” them to the OFCCP when reviewed or pursuant to a Conciliation Agreement, but they are never to be “counted” as selections in an analysis that includes other “applicants” when in fact there weren’t any. Also, never report them as if they were “single applicant hires” – please don’t do that!
You could consider disposition codes like this:
Non-competitive placement – contractual
Non-competitive placement – return from leave
Non-competitive placement – displaced employee
Even for a “born sorter” this looks like a great many disposition codes. And even these are by no means perfect, universally appropriate, nor necessarily exhaustive. But they are intended to stimulate your thoughts about ways your organization might design disposition codes that reflect its own methods and reasons for selection/rejection. May all your blue beads find a box!
Think of your selection process as a large funnel with many more people entering the process than are “successful” coming out of the process. In Part I of this article, I discussed the strategic advantage to employers of managing just how many people enter the “funnel” (i.e. are “considered”) and the many advantages to employers/contractors for providing enough “boxes” to sort the multiple reasons why any individual might not have been selected at the end.
A final observation: I’ve noticed that many contractors have more detailed disposition codes at the end of the process than at the beginning. Practically everyone has a code for failing the drug screen or failing background check for example. There are often as many or more codes covering those who are interviewed by the hiring manager as there are for those who don’t make it that far. The same employers with such detailed codes for the ending of the funnel very often have much less detail for the mouth of the selection funnel, the start of the process. But it is at the beginning where most “denials of opportunity” occur and where the employer is, consequently, the most vulnerable to challenge because the numbers involved are a quantum more likely to show “adverse impact.” You may have gotten it backwards! Invest the most effort and specificity of content when dispositioning the greatest number of job seekers and of applicants!
A final suggestion: for the same reason – that is, “Big Numbers” and smaller ones – I urge you to use your most valid, most demonstrably job-related selection criterion earliest in the process. If an applicant might be rejected on more than one basis (i.e., education, experience, work history, license, or “fit”) it just makes sense to use the disposition code that is the most easily defended – which will often (though not always) be the one that is the most “objective” rather than “subjective.” I would go so far as to suggest (people being after all human) that your most “objective” reasons for rejection at each stage of the process be higher on the list of possible disposition codes than the more subjective ones such as “work history” (which I distinguish from “experience”) codes or “fit.”
Train your recruiters/application reviewers to think defensively. Dispositioning each job seeker is not just something that the EEO Director dreamed up to annoy them. It’s an important part of their jobs and has the potential to save – or cost – their employer millions of dollars.
This publication is written to give general information on the subjects covered. Nothing in the article, Parts I and II, is intended nor should be construed as legal advice or as a substitute for any professional advice about your organization’s particular circumstances. Readers should consult competent counsel or other professional services with regard to how the matters discussed might relate to their own affairs or to resolve specific problems or questions. If you have questions about this article you may email me at [email protected]. Copyright © 2018 Ellen Shong Bergman, LLC
1. This does not cover the situation where the employee’s job performance is the reason for rejection. Such an assessment of performance amounts to “consideration” and the individual is thus an “applicant”. On the other hand, if the employer has a rule that, for example, an employee may have no more than three applications in play at any one time or that an employee must be in his/her current position for at least six months before applying, a jobseeker in that situation didn’t follow your rules and is, thus, not an applicant.
2. This applies only to those circumstances where the employer has positions which require a government security clearance. If the employer does, it probably needs this disposition code as well as the “not legal to work in U.S” disposition code.
3. Lack of a license as a “not legal to hire/not an applicant or “no BQ/Internet Applicant” code can be used only where the employer does not/is not permitted to hire an individual who does not possess a current license for his/her profession. If, however, the employer hires into such jobs provisionally (such as prior to passing the Bar Exam or prior to passing the State Nursing Boards) then not possessing a current license is a qualification just the same as experience or education. A person who doesn’t have a current license is an applicant/Internet Applicant but – unless s/he withdraws – may not be a qualified applicant/Internet Applicant for some other reason or may be one who is “not as qualified” as a person with a current license.
4. For example, there’s been a prohibition in SC prohibiting any state agency from offering employment to any individual who is in arrears in repaying student loans. Pennsylvania required, and may still require, the certification of faculty as fluent in the English language. Where it would be a violation of law to hire an individual, that individual is not an “applicant” since no assessment of his/her qualifications has (should have) occurred.
5. OFCCP regulations require “repeated efforts” to contact a jobseeker before the employer may conclude that s/he has implicitly expressed a lack of further interest. “Repeated” means twice. You must make two attempts to contact (phone or email) before categorizing the jobseeker as having withdrawn/not an applicant.
6. This is intended to distinguish the job seeker who is truly problematic/pathological; who, for example, applies for dozens of jobs at a time (because you don’t have a rule prohibiting that), who is repeatedly rejected for jobs because s/he isn’t “legal to hire,” and/or who is abusive (documented) in his or her treatment of your employees.
7. As with review of applications/resumes, HR and one or more Selecting Officials may each conduct assessment interviews. Particularly if HR will not refer anyone who does not “pass” the HR interview, it may be necessary to establish separate disposition codes for the initial and subsequent multiple/sequential interviews – some of which I have provided for here. Keep in mind, from among this long list of disposition codes, the rater is only going to have to choose from among the handful that might apply to the individual at the point in the selection process at which the rater is recording his/her rationale.