Hiring Compliance: Establishing Who is an "Applicant"

» Articles » Employment & Labor Articles » Article

July 16, 2018

It may seem trivial, but defining what will be considered an “application” by an employer, and thus who will be considered an “applicant,” may be important in defending against discrimination in failure-to-hire charges and lawsuits. In addition to the age-old methods of providing applications by hand-delivery or mail, individuals now sometimes have the options of faxing a resume and/or application, as well as sending an application or submitting a resume via e-mail. For many employers these varied methods of delivery may create a conundrum.

What exactly should an employer define to be an official application that is entitled to consideration for a position? An employer may decide to accept information received via any or all of the above methods of delivery or may determine that only one method of delivery is appropriate. However, regardless of the options selected by the employer, employers should formulate a policy with respect to the foregoing (including it in the job posting or on the job application) and should consistently adhere to that policy. Such policies should include a description of what is acceptable as an application (e.g., it must be completely filled out; etc.), the period applications will be accepted for open positions, and how long, if at all, the application will be held and considered by the employer. With such a policy in place, applicants or employees applying for new positions will be able to determine whether or not they will be considered. Contemplate the situation where an employer does not have a written policy, but only considers applications that have been sent by U.S. mail. If an individual sends a resume to the human resource director via e-mail and does not receive a call, how does the employer explain why the candidate was not considered? Can the employer defend a claim that the candidate was excluded on the basis of the individual’s race or gender? A thoughtfully formulated policy can eliminate this problem, but it must be consistently followed.

Establishing a clear definition of “Job Applicant,” is also important in light of the lack of legal guidance available as to the proper definition. In 2004, the EEOC, along with several other federal organizations, issued a proposed definition of “Job Applicant” for Internet and Related Electronic Technologies. However, after four years, the definition was withdrawn without having been formally accepted by the agency. The decision to not adopt the definition demonstrates the problems in creating a definition of “Job Applicant.” While, ideally, they would have preferred to have a set definition for the term, the EEOC Commissioners noted that the rapid changes in technology made establishing a definition difficult and they have been unable to adopt a definition to date.

Therefore, at this point, it is the responsibility of an employer to develop an appropriate definition of “Job Applicant” (i.e., what is deemed by the employer to be an acceptable job application).

The material appearing in this web site is for informational purposes only and is not legal advice. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. The information provided herein is intended only as general information which may or may not reflect the most current developments. Although these materials may be prepared by professionals, they should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.

The opinions or viewpoints expressed herein do not necessarily reflect those of Lorman Education Services. All materials and content were prepared by persons and/or entities other than Lorman Education Services, and said other persons and/or entities are solely responsible for their content.

Any links to other web sites are not intended to be referrals or endorsements of these sites. The links provided are maintained by the respective organizations, and they are solely responsible for the content of their own sites.