Just who is an applicant?: The impact of electronic resumes and job search engines on employment discrimination law.

• Author: Moretta, John B.

1. INTRODUCTION

   Out of a job? Looking for a career change? Well, you're in luck! Job searches have become relatively effortless with the continued growth of the Internet and the influx of employers willing to post job openings and career opportunities online. Consequently, it is safe to say that the process by which individuals seek employment in the Twenty-First Century bears little resemblance to the manner in which employees pursued jobs in the mid to late Twentieth Century. With the advent of numerous job search engines and career opportunities listed on company websites, electronic resumes and online applications have become commonplace in today's job market. (1) After all, why would an individual spend the time, money, and effort to compose mass mailings of resumes and cover letters when they can simply post the same materials on Internet job boards or employer websites at no cost, and with little time expenditure? (2) At least one career advisor has noted that e-mail is the quickest and most efficient way to get resumes and cover letters to employers and recruiters. (3)

   While online search engines originally targeted their postings towards "techies," (4) the focus of online career opportunities has expanded to include various types, and levels, of employment. (5) Search engines such as Monster.com, Hotjobs.com, Jobfind.com, and the like, all create a database of job listings that are made accessible to job seekers on the respective websites at no cost. (6) All of the search engines offer job seekers the opportunity to search and view descriptions of various types of employment. (7) In addition, job seekers can submit their resumes to a specific employer with just a few clicks of the keypad. (8)

   In contrast to the large Internet job boards previously described, a new model of recruiting has also emerged during the past few years. (9) The new model, DirectEmployers.com, comes in the form of a hybrid directory and search engine that allows job seekers to link directly to job listings on employer and recruiter web sites. (10) The key difference between the hybrid version and the larger job boards is the job seeker's ability to link directly to the employer's web site. (11) The site's primary purposes are to provide for more effective use of the Internet and to allow for the listing of more career opportunities by reducing employers' publishing costs. (12) DirectEmployers.com launched the site in February 2000, with job listings from over 200 companies and recruiters, and twenty-six members of the E--Recruiting Association supported the site. (13)

   DirectEmployers.com is aiming to produce "one directory" of job postings on a website that is completely and entirely free of advertising and all other distractions that may not be related to the recruitment process. (14) DirectEmployers.com allows job seekers to interact directly with employers, and in lieu of compiling a database of job listings, places the application materials directly into the hands of the hiring employer or recruiter. (15) By directly linking the job seeker to employers' web sites, DirectEmployers.com also allows the employer to avoid receiving applications for previously filled positions. (16) Furthermore, the links provide the job seeker with a description of the position and application process, so that the individuals can better gauge their interest in the position as well as determine whether they are qualified for the position. (17)

   In addition to the web-based search engines, job seekers also have the ability to directly access employment listings on company websites. Employers ranging from investment firms and law firms to pharmacy chains, airline manufacturers, and hotels use this method of recruitment. (18) Utilization of this system, in conjunction with the popularity of independent job search engines, has led to the filing of a staggering number of electronic resumes, especially in light of the floundering economy. (19)

   Examination of the astounding number of online applications shows that it is impractical to expect employers to have the capacity to carefully review and consider all electronic resumes. (20) Mere deletion of the resumes without documentation, however, can lead to charges of discrimination, investigations conducted by the Equal Opportunity Commission (21) (EEOC) and expensive lawsuits for employers under current federal anti-discrimination laws. (22) Consequently, employers are understandably concerned about the care and consideration they must provide to rejected applicants who have filed online applications with the company. (23) The critical question employers must address inquires whether all individuals who submit online applications or resumes are applicants for purposes of the federal anti- discrimination laws. Employers must re-examine their hiring practices involving online solicitations at least until the task force concludes its duties. The EEOC task force designated to alleviate this dilemma, however, does not appear to be close to doing so. (24)

   Part II of this note will examine the federal guidelines currently governing the employee selection process as well as the history, purpose, and scope of the guidelines. Part III will analyze the body of federal discrimination law to which the guidelines apply. Next, Part IV will consider the ramifications resulting from the guidelines' inability to define the term "applicant" in light of the recent surge of electronic resumes. Finally, Part V will examine and critique the current definitions of an "applicant" in light of the underlying policies of employment discrimination law and will examine their affect on employers, applicants, and fundamental tenets of employment discrimination.

2. THE FEDERAL GUIDELINES

   On August 25, 1978, several federal agencies, including the Equal Opportunity Employment Commission, (25) the Office of Personnel Management, (26) U.S. Department of Justice, (27) U.S. Treasury Department, (28) the Civil Service Commission, (29) and the U.S. Department of Labor Office of Federal Contract Compliance Programs, (30) adopted the the Uniform Guidelines on Employee Selection Procedure (31) (the "Guidelines"). The purpose behind the adoption of the Guidelines was to fulfill the long-standing need of the federal government in having a uniform set of principles applicable to employee selection procedures. (32) The federal government designed the Guidelines to rid society of employment discrimination by assisting employers, labor organizations, employment agencies, and licensing and certification boards in complying with federal law, which prohibits employment practices that discriminate on race, color, religion, sex, and national origin. (33) The Guidelines apply to private and public employers alike in the enforcement (34) of Title VII of the Civil Rights Act of 1964 (35) and Executive Order 11246. (36)

   The Uniform Guidelines fulfilled its main goals and purposes until the mid 1990's when the electronic application boom arose. (37) In 1995, the U.S. Department of Labor concluded that an employer should consider any individual who submits an online application or electronic resume to be an applicant. (38) The Department of Labor's conclusion, in conjunction with the explosion of electronic resumes, online applications, and job postings, has led to a costly and confusing dilemma for employers.

   Theories of Employment Discrimination

   Plaintiffs wishing to challenge employment decisions pursuant to the federal anti-discrimination laws may proceed on either the theory of disparate treatment discrimination or disparate impact discrimination. The definition of an applicant is critical to the success of the plaintiff or defendant under each theory.

   Disparate treatment occurs when a member of a protected class is the recipient of adverse treatment as contrasted with the treatment afforded similarly situated individuals who are not members of the same protected class. (39) Broadly speaking, the court may hold an employer liable for disparate treatment discrimination if it cannot state a non-discriminatory reason for the differential treatment or if the plaintiff later proves the proffered reason is pretextual. (40) The disparate treatment model applies to Title VII of the Civil Rights Act of 1964, (41) the Age Discrimination in Employment Act of 1967 (ADEA), (42) and the Americans with Disabilities Act of 1990 (ADA). (43)

   Disparate Treatment Discrimination

   a. Individual Disparate Treatment

   In the absence of direct evidence (44) of discrimination, the plaintiff must satisfy four specific, and well-established, elements to validate an individual disparate treatment claim. (45) First, the plaintiff must show that he belongs to a racial minority. (46) Next, the plaintiff must show that he applied (47) and was qualified for a job for which the employer was seeking applicants. (48) Third, the plaintiff must prove that the prospective employer rejected him despite his qualifications. (49) Finally, the plaintiff must establish that the position remained open and the employer continued to seek applicants from persons of the complainant's qualifications after rejecting the plaintiff. (50) Satisfaction of the requisite elements of the disparate treatment claim serves to prove a prima facie case of discrimination. (51)

   Establishing the prima facie case (52) shifts the burden of production to the employer to rebut the presumption of discrimination by producing (53) a legitimate, (54) non-discriminatory reason for the decision. (55) If the employer is successful in producing a legitimate and non-discriminatory reason for its decision, the court shifts the burden back to the plaintiff and permits the plaintiff an opportunity to rebut the allegedly non-discriminatory reason by showing that the articulated reason is false, or pretextual. (56) At this stage of the litigation, it appears from the Supreme Court's ruling in Reeves v. Sanderson Plumbing (57) that...