EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII / ADA: Recordkeeping Responsibilities for Electronic Resumes with Video Clips / Employer Knowledge of Ethnicity, Gender, and Disability Prior to Interview

October 5, 2004

Dear :

This is in response to your recent correspondence sent through the Department of Labor requesting that the United States Equal Employment Opportunity Commission (EEOC) provide guidance on the recordkeeping responsibilities of an employer considering electronic resumes with video clips. You assert that "[c]ompanies who select applicants through text-only means and job boards [] bring applicants in for an interview [and] keep EEOC statistics based on the people they actually see in their offices." You then ask about an employer's recordkeeping responsibilities when it learns the ethnicity, gender, or disability of an applicant prior to an interview by viewing a picture or video clip of the individual. You inquire how employers should meet all of their governmental EEO recordkeeping duties in these circumstances.

Background

The EEOC enforces the federal laws that prohibit employment discrimination on the bases of race, color, religion, sex, national origin, age, and disability. Statutes enforced by the EEOC include Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000(e) et seq., Title I of the Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C.§ 12101 et seq., and the Age Discrimination in Employment Act, as amended (ADEA), of 1967, 29 U.S.C. § 621 et seq. These laws specifically cover employment agencies.

The Department of Labor, Office of Federal Contract Compliance Programs (OFCCP), enforces Executive Order (E.O.)11246 that prohibits employment discrimination by most government contractors and imposes affirmative action obligations. E.O. 11246 includes significant recordkeeping requirements relevant to affirmative action. Information on the OFCCP's rules, including the recordkeeping requirements, can be found at www.dol.gov/dol/allcfr/ESA/Title_41/Chapter_60.htm. Because OFCCP enforces E.O. 11246 and its affirmative action obligations, not the EEOC, this response does not discuss OFCCP's recordkeeping rules.

There are two EEOC rules that involve recordkeeping: the Title VII and ADA recordkeeping rule (29 C.F.R. Part 1602); and the Uniform Guidelines on Employee Selection Procedures (UGESP) (29 C.F.R. Part 1607). Under the Title VII and ADA recordkeeping rule, covered entities must keep for one year, "application forms submitted by applicants and other records having to do with hiring. . . ," among many other personnel or employment records. 29 C.F.R. §1602.14. More importantly in this instance, the UGESP directs covered entities to maintain "records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group..." 29 C.F.R. § 1607.4(A). The purpose is to analyze whether employment tests or other employment "selection procedures" have a "disparate impact" on - or disproportionately exclude - applicants of a particular race, ethnicity, or gender. If so, the "selection procedures" are lawful only if they are validated, i.e., are shown to be job-related and consistent with business necessity. 29 C.F.R. § 1607.3(A). (UGESP describes in detail different ways to validate tests.)

Discussion

Your inquiry focuses on your new system, __________, which encourages employers to view photos or video clips of job seekers and therefore permits employers to see the personal characteristics of the job seeker early in the recruitment process. Your letter implicitly asks for validation of this new recruitment tool under the federal employment nondiscrimination laws. You also ask about the employer's recordkeeping obligations when it surmises the ethnicity, gender, or disability of a job seeker prior to an interview. Therefore, our response focuses on basic Title VII and ADA nondiscrimination and recordkeeping obligations.

Under Title VII, it is not illegal for an employer to learn the race, gender or ethnicity of an individual prior to an interview. Of course, Title VII requires that all individuals be provided equal, nondiscriminatory treatment throughout the hiring process. If an employer representative observes a job seeker in a video clip, and either learns or surmises the person's gender, race, or ethnicity, such knowledge could increase the risk of discrimination or the appearance of discrimination. Employers need to take care in training hiring officials and human resources staff about the appropriate responses when gender, race, or ethnicity are disclosed during recruitment. Video clips might be analogized to information on a resume that clearly tells an individual's race, such as, "President, Black Law Students Association." In this situation, as with the video clip, the employer needs to focus on the person's qualifications for the job.

Under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., an employer cannot ask questions on the application form or in an interview that are likely to elicit information about a disability prior to a job offer. If you learn or suspect that an individual has a disability after seeing his/her video clip, you have not violated the inquiry prohibition of the ADA, but you must not use that information to discriminate in hiring. As with all other applicants, you must focus on the individual's qualifications for the job.

Under UGESP, the employer's recordkeeping duties begin when a job seeker becomes an "applicant." UGESP requires that employers keep demographic information about "applicants" so that they can analyze whether their employment selection procedures disproportionately exclude "applicants" on the basis of race, ethnicity or gender. 29 C.F.R. § 1607.4(A). Existing UGESP guidance defines "applicant" broadly to include persons expressing interest in employment opportunities. (See Question and Answer 15, Adoption of Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures, 44 Fed. Reg. 11,996 (March 2, 1979)). Please note: MARCH 4, 2004 DOCUMENT WITHDRAWN ON MARCH 17, 2008; UNDERSCORED LANGUAGE WITHDRAWN [In March 2004, the EEOC, the OFCCP and two other agencies jointly proposed a definition of Internet "applicant" under UGESP, but the proposal is not final. See Adoption of Additional Questions and Answers To Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures as They Relate to the Internet and Related Technologies, 69 Fed. Reg. 10,152 (March 4, 2004)). See www.access.gpo.gov/su_docs/fedreg/a040304c.html.

If the pending joint proposed definition for Internet "applicant" were to become effective, an individual would only be an "applicant" if the following three conditions were met:

(1) The employer has acted to fill a particular position; (2) The individual has followed the employer's standard procedures for submitting applications; and (3) The individual has indicated an interest in the particular position.

Applying this definition, an individual would not be an "applicant" simply because a potential employer viewed his video, listened to his audio, or reviewed his resume on the Internet. The individual only would become an "applicant" after he appropriately expressed an interest in a particular position that the employer had acted to fill. In most instances, however, this would occur prior to an interview. Therefore, if the employer had demographic information, it would need to start keeping records at this point.]

In March 2004, the EEOC, the OFCCP and two other agencies jointly proposed a definition of Internet "applicant" under UGESP, but the proposal is not final. See Adoption of Additional Questions and Answers To Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures as They Relate to the Internet and Related Technologies, 69 Fed. Reg. 10,152 (March 4, 2004)). See https://www.federalregister.gov/documents/2004/03/04/04-4090/agency-information-collection-activities-adoption-of-additional-que.

If the pending joint proposed definition for Internet "applicant" were to become effective, an individual would only be an "applicant" if the following three conditions were met:

(1) The employer has acted to fill a particular position; (2) The individual has followed the employer's standard procedures for submitting applications; and (3) The individual has indicated an interest in the particular position.

Applying this definition, an individual would not be an "applicant" simply because a potential employer viewed his video, listened to his audio, or reviewed his resume on the Internet. The individual only would become an "applicant" after he appropriately expressed an interest in a particular position that the employer had acted to fill. In most instances, however, this would occur prior to an interview. Therefore, if the employer had demographic information, it would need to start keeping records at this point.

Conclusion

Recordkeeping aside, the key under Title VII and the ADA is for employers and recruiters to continue to structure their recruitment and selection processes to be nondiscriminatory and to consistently focus on the job qualifications of all job seekers, regardless of technology or of the information available by virtue of that technology.

This letter is an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission.

Sincerely,

Carol R. Miaskoff
Assistant Legal Counsel

This page was last modified on April 27, 2007.

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