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YES, if you mean “job seekers”, Krystal. And NO, I’m sorry but “does not meet basic qualifications” will not suffice as a disposition for some job seekers and it will NOT suffice for ANY “Internet Applicants”. But I hope you’ll be glad that there is a much more detailed answer to follow, along with a discussion of the term I think you meant instead of “applicant”, that term being “Internet Applicant”, because that term as well as the term/concept and definition of “Basic Qualifications” both occur in – and ONLY in – OFCCP regulations. At the end of this answer I’ll tell you how to locate the regulation as well as OFCCP’s FAQs on the definition of “Internet Applicant” and some other terms I’m going to be talking about. Since the people who follow these questions are often quite new to compliance responsibilities I’ll review a couple of basic facts that it’s important to keep in mind when dealing with what are essential record-keeping and analytical requirements for government contractors. In addition, some history may help give readers a better understanding of the “why” we disposition anyone at all as well as why, when we do so, that disposition code must be both accurate and meaningful or it’s just a space filler on which the contractor cannot rely to do either a “self-evaluation” or to survive an OFCCP evaluation. And since we have no business reason whatsoever – EXCEPT COMPLIANCE – to concern ourselves with why we didn’t hire or promote someone, I always have urged contractors to do what they have to do anyway in a manner which makes it as easy as possible to demonstrate compliance. FIRST Fact: Non-discrimination and affirmative action requirements regarding people who seek jobs are all about the people who don’t get them…the ones who are DENIED an opportunity. For all such individuals the OFCCP is concerned with its ability to investigate; hence record-keeping requirements exist. AND the agency wants information in the records – and certainly in the contractor’s analyses that are also required – that will permit it to investigate whether such DENIALS were ON THE BASIS OF race, sex or national origin. SECOND Fact: And even some more experienced professionals won’t necessarily know/remember this: The so-called “Internet Applicant Rule” was proposed and was adopted in 2005 as the rule governing contractors’ “Obligation To Solicit Race and Gender Data for Agency Enforcement Purposes”. And some HISTORY: Since employers IN THE PAST did often solicit that information (on application forms) but NOT often for “affirmative” purposes, they’d been told for decades by the EEOC and OFCCP that such inquiries were presumptively unlawful. And then the OFCCP figured it out. Many contractors had beaten them to it and for quite a number of years had initiated the soliciting of this information – providing which must be clearly voluntary on the part of the job seeker OR employee – but often not matched to job sought much less to a specific individual, so anxious were contractors to allow for the anonymity heretofore necessary to defeat an allegation of disparate treatment. The problem was the agency wasn’t satisfied with what data they were getting (it still isn’t – but it’s stuck with disclosing being voluntary on the part of the individual!) So, it began insisting that contractors go to EXTRAORDINARY efforts to obtain this information, INCLUDING in at least one particularly infamous example demanding that the contractor not only send written inquiries to every single person who expressed interest in employment but that the contractor do so twice, the second time by registered mail. COULD I MAKE THIS UP?? At about this time Internet technologies exploded and their use by contractors grew geometrically. It’s pretty clear that an agency’s ability to investigate whether denial of an opportunity was associated with race, sex, etc. is severely compromised if records don’t include that information – but for everybody??? Maybe not. It’s worth mentioning that in addition to the explosion of the volume of “applicants” to be dealt with, with its insistence on individual communication with a literally incalculable number of people, the OFCCP had finally hit on a demand that made virtually every contractor say: “Not only no, but hell no”. Compliance reviews stalled. The OFCCP couldn’t possibly bring administrative enforcement action against the hundreds of contractors who balked. It couldn’t close a review where it had “found” a violation…and a big one, the refusal to provide requested data. So all those compliance reviews simply sat. Fortunately, and possibly partly because of resistance by the heretofore most “compliant” of contractors, saner heads prevailed in the form of Charles James, Deputy Assistant Sec’y for the OFCCP during Bush II. Even the OFCCP had to wrestle with what it could reasonably ask of contractors using mega job posting boards. (Hence also the “data management techniques” included in the OFCCP regulations). Did pushing a button really constitute applying to ABC Contractor for ANY of its opportunities? EVERY opportunity? The agency was already tilting at the windmills of logic from contractors who argued that people who were looking for jobs as accountants certainly weren’t applicants for its production jobs in the furniture factory. Or persons who applied after the job was filled certainly hadn’t been denied an OPPORTUNITY. Or people who didn’t respond to requests to set up an interview, or who cancelled an interview, or who didn’t show up for an interview certainly hadn’t been DENIED an opportunity. And even the agency’s own Uniform Guidelines on Employee Selection Procedures (adopted after the Supreme Court in 1971 articulated the basis for the “adverse impact” theory of discrimination) required analysis only of people who were actually “tested” – i.e. “impacted” by the employer’s selection criteria for a particular job. Anecdotally, it’s also the case that the OFCCP just does not make a finding of find unlawful discrimination when the contractor’s decisions are based on demonstrably job-related criteria. “Adverse impact” is NOT a “finding” of discrimination; it is merely a presumption of unlawful discrimination until the contractor rebuts the presumption by a showing that its selection decisions were based on qualifications that coincide with the knowledge, skills and abilities needed for “the job”. And so the OFCCP cut through the nonsense – remember this is ONLY the OFCCP and ONLY about the “Obligation to Solicit Race and Gender Information for Agency Enforcement Purposes” – and adopted a REGULATORY obligation to “solicit race, sex (and national origin”) information but from only a subset of the people whom even the most logical people could agree were applicants. The agency requires this solicitation be made only of “Internet Applicants”. The definition incorporates logic (i.e., only those who apply using the Internet or other electronic technologies who follow the rules (such as applying before a deadline or applying on-line or providing contact information that actually permits being contacted or answering all the employer’s threshold questions including EEO Survey questions which, if an answer is required, must include as a potential answer, “decline to disclose”) as well as the logic that to be an “Internet Applicant” one must not have withdrawn either “implicitly or explicitly prior to an offer of employment”. See below for guidance on how to find the regulations and the OFCCP’s FAQs on same which will FURTHER define words such as “implicitly” and “explicitly”. The definition also includes the logic that the contractor must actually “consider” the job seeker’s statement of qualifications and make an assessment/a “go-no go” decision on that basis. No more solicitations of race/gender info much less including in adverse impact analyses those individuals
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