t the
January 23 meeting of the Silicon Valley Industry Liaison
Group, attorney John C. Fox revealed significant news on recent
developments in the Office of Federal Contract Compliance
Programs' (OFCCP) stance on the definition of an "applicant."
The "applicant issue,"
as it has been dubbed, centers around when in the job seeking
process a company needs to identify the race and gender of
applicants in order to do required disparate impact testing.
The problem is that there is no clear regulatory definition
of what an "applicant" is. Further complicating
the issue, the OFCCP – the government agency responsible
for enforcing Executive Order 11246 – has been inconsistent
in its definition and enforcement.
The Equal Employment Opportunity
Council (EEOC) led task force created to answer the applicant
question has so far been unable to arrive at a uniform definition
and was recently granted its fifth extension until March 31,
2003. According to Fox, the national office of the OFCCP has
now provided an interim policy until the task force finishes
its work.
The announcement was made at
the National Employment Law Institute's Affirmative Action
Briefing on November 7, 2002 by Deputy Assistant Director,
Charles James, and Division of Program Operations Director,
Harold Busch of the OFCCP. The following four questions have
now been answered — at least on an interim basis —
according to Fox.
Who
Is an Applicant?
Charles
James announced that those not minimally qualified are not
applicants. Previously, the OFCCP was known to argue that
any interested contact – regardless of the persons
qualifications – qualified the correspondent as an
applicant.
Is
Direct Inquiry Required?
The
OFCCP Director further stated that the agency recognizes
that
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contractors
have no obligation to directly solicit race/ethnicity and
gender information from applicants. Alternative methods
of gathering race/ethnicity and gender information can be
used (e.g. visual identification).
How
Many Race and Gender
Inquiries Are Necessary?
The
third revelation from the OFCCP was that federal contractors
are only obligated to request race/ethnicity and gender data
once during the pre-employment process. This means an applicant's
decision not to identify his or her race or gender would not
require a contractor to make subsequent attempts to gather
the information.
When
Must Race and Gender
Identification Occur?
Previous
OFCCP guidance dictated that a person should be asked for
race/ethnicity and gender data at the moment he or she became
an applicant. The final part of the OFCCP's statement was
that the identification of race/ethnicity and gender data
can be made at any point during the pre-employment process.
This indicates that identification need not occur until the
actual face-to-face interview.
Unfortunately,
it appears that the policy statements made by the national
office have not been disseminated to the regional and district
offices of the OFCCP. Our experience shows that enforcement
surrounding the applicant issue continues to be inconsistent.
Mr. Fox, a partner at Fenwick
& West LLP in Mountain View, California, specializes
in employment law. During his tenure as Executive Assistant
to the Director of the OFCCP, Mr. Fox was responsible for
all enforcement and policy matters and has special insight
into the current applicant definition debate.
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