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In these recessionary times, companies are finding themselves inundated with thousands of e-mailed resumes a day. Are these people applicants or simply an annoyance? Before you reach for the delete button, consider this: However you may view them, they are also a potential liability. Under the current federal standard, anyone who submits a resume electronically is a job applicant. Even people who are not looking at any job in particular or are clearly unsuited — say, a high school student applying for the position of chief executive — qualify. In and of itself, this would not be a concern, but the government also requires every company with more than 100 employees to track the race, gender and ethnicity of every one of these so-called job applicants. The Equal Employment Opportunity Commission uses this data to determine whether a company discriminates in its hiring practices. Employers must also produce these records in defense of a disparate impact claim alleging hiring practices that are skewed against a protected class. Critics contend that the 25-year-old guidelines have fallen out of sync with today’s job market, in which companies are having to process thousands of electronic resumes that they get every day. Even the government seems to agree the present rule is unworkable. In July 2000, the Office of Management and Budget ordered the EEOC, in conjunction with several other federal agencies, to update the definition of “applicant.” But after more than two years of study, the agency has been unable to come up with a definition that protects equal opportunities for job candidates while easing the burden for employers. A report originally due last December has been delayed indefinitely. The due date has already been extended three times this year, and EEOC Chairwoman Cari Dominguez said they would probably ask for another extension. “It’s a very thorny issue,” Dominguez said by way of explanation. She said the agency wants to be practical, yet it also must be able to monitor the selection process to make sure it is non-discriminatory. In 1978, when the government first started asking companies to keep resumes and records of race, gender and ethnicity, applicants were typically “real live bodies coming in for interviews,” said Lawrence Z. Lorber, a partner at Proskauer Rose’s Washington, D.C., office and former U.S. Deputy Assistant Secretary of Labor. Companies simply tracked those who came in the door, he said. “It wasn’t an overwhelming number of documents.” The regulations, known as the Uniform Guidelines on Employee Selections Procedures, did not pose a real problem until 1995, when the U.S. Department of Labor decided that the applicant pool includes anyone who “indicates an interest” in a job — any job — by submitting a resume online. Since then, online job hunting has exploded. Virtually every Fortune 500 company has an employment Web site, and job search engines like Monster.com are flourishing. Job hunters can get software that lets them submit their resume to every company from American Express to Xerox Corp. with a click of a mouse. According to a study by the Pew Internet and American Life Project, more than 52 million Americans have looked for work on the Internet. As a result, employers are being flooded with electronic resumes. Jeffrey Norris, who heads the Equal Employment Advisory Council, a Washington, D.C., trade group of about 350 major U.S. corporations, said that many of the group’s members get several thousand resumes a week, and have hundreds of thousands of names in their database. The numbers are truly mind-boggling. The Boeing Co. has projected that it will receive about 1.3 million resumes this year, compared with last year’s mere 790,000 resumes. Lockheed Martin Corp. has said it gets about 4,000 resumes a day, or upwards of 1.4 million annually. “I know of a company that keeps a warehouse in Salt Lake City just to store resumes,” Dominguez said. “They’re just so afraid of throwing them away.” She said she imagined that other employers resorted to imposing their own definition of job applicant, “just to deal with the volume.” There is technology that can manage these gargantuan applicant pools and meet the tracking requirements as well. But it is expensive: Costs average around $500,000, according to Diane Pardee, vice president of corporate marketing and communications at RecruitSoft, which sells online staffing management systems. Technology also does not solve the more basic problem the government guidelines present, which is the threat of getting sued by rejected candidates. Defining everyone who submits a resume as an applicant sets up employers for possible lawsuits from people who may not be qualified and may not even be interested in the job, Norris said. Gathering the data also puts companies in an awkward position, he added. Basically, companies have to tell people, “You don’t have the job, but, by the way, what’s your race, gender and ethnicity?” he said. Applicants do not have to provide the information. In such cases, the company must make an educated guess based on the resume. Just raising the issue, though, can get applicants wondering why they were not hired, Norris said. LETTER OF THE LAW On the regulatory side, EEOC spokeswoman Jennifer Kaplan said the agency has refrained from holding employers to the letter of the law while it works on updating the guidelines. But employment lawyers said the problem is far from theoretical. “I’ve gotten into battles with the government over who is an applicant,” Proskauer’s Lorber said. “The regulations mirror what they were doing as a matter of policy.” Trade groups and employment lawyers are pushing for a definition that falls somewhere in between anyone who submits a resume and those who are interviewed for a job. “An applicant should meet the qualifications, express an interest and actually be considered for the position,” Norris said. EEOC spokeswoman Kaplan agreed that an applicant is “probably not” anyone who e-mails in a resume or clicks on a job site. She said the issue is a priority for the agency. But whether and when the government will act remains a matter of speculation. “I think they are sincerely working on it,” Norris said. “But I wouldn’t bet the mortgage on it.” After more than two years of study, EEOC has been unable to come up with a definition that protects equal opportunities for job candidates while easing the burden for employers.

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