Obligation To Solicit Race and Gender Data for Agency Enforcement Purposes, 58946-58963 [05-20176]

Agencies

• DEPARTMENT OF LABOR
• Office of Federal Contract Compliance Programs
• Federal Contract Compliance Programs Office

[Federal Register Volume 70, Number 194 (Friday, October 7, 2005)]
[Rules and Regulations]
[Pages 58946-58963]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-20176]



[[Page 58945]]

-----------------------------------------------------------------------

Part VIII





Department of Labor





-----------------------------------------------------------------------



Office of Federal Contract Compliance Programs



-----------------------------------------------------------------------



41 CFR Part 60-1



Obligation To Solicit Race and Gender Data for Agency Enforcement 
Purposes; Final Rule

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules 
and Regulations

[[Page 58946]]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-1

RIN 1215-AB45


Obligation To Solicit Race and Gender Data for Agency Enforcement 
Purposes

AGENCY: Office of Federal Contract Compliance Programs, Employment 
Standards Administration, DOL.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Office of Federal Contract Compliance Programs (OFCCP) 
regulations require covered federal contractors and subcontractors to 
collect information about the gender, race and ethnicity of each 
``applicant'' for employment. The final rule published today modifies 
OFCCP applicant recordkeeping requirements to address challenges 
presented by the use of the Internet and electronic data technologies 
in contractors' recruiting and hiring processes. The final rule is 
intended to address recordkeeping requirements regarding ``Internet 
Applicants'' under all OFCCP recordkeeping and data collection 
requirements.

EFFECTIVE DATE: These regulations are effective February 6, 2006.

FOR FURTHER INFORMATION CONTACT: Director, Division of Policy, 
Planning, and Program Development, Office of Federal Contract 
Compliance Programs, 200 Constitution Avenue, NW., Room N3422, 
Washington, DC 20210. Telephone: (202) 693-0102 (voice) or (202) 693-
1337 (TTY). Copies of this final rule, including copies in alternative 
formats, may be obtained by calling OFCCP at (202) 693-0102 (voice) or 
(202) 693-1337 (TDD/TTY). The alternate formats available are large 
print, electronic file on computer disk and audiotape. This document 
also is available on the Internet at https://www.dol.gov/esa.

SUPPLEMENTARY INFORMATION:

I. Introduction

    OFCCP requires covered federal contractors to obtain gender, race, 
and ethnicity data on employees and, where possible, on applicants. See 
41 CFR 60-1.12(c). OFCCP requires this data collection activity for 
several purposes relating to contractors' administration of 
nondiscrimination and affirmative action requirements and OFCCP's role 
in monitoring compliance with OFCPP requirements. See 65 FR 68023 
(November 13, 2000); 65 FR 26091 (May 4, 2000). For example, 
contractors use gender, race, and ethnicity data in the ``job group 
analysis'' portion of their AAPs (41 CFR 60-2.12) and OFCCP uses the 
data to decide which contractor establishments to review and, among 
those reviewed, when to conduct an on-site investigation. Contractors 
must supply this information to OFCCP upon request. See 41 CFR 60-
1.12(c)(2).

II. Rulemaking History

    The Uniform Guidelines on Employee Selection Procedures (UGESP) 
were issued in 1978 by the Equal Employment Opportunity Commission, the 
Department of Labor, the Department of Justice, and the predecessor of 
the Office of Personnel Management (``UGESP agencies''). UGESP requires 
employers to keep certain kinds of information and details methods for 
validating tests and selection procedures that are found to have a 
disparate impact.
    The Department of Labor is a signatory to UGESP, which is codified 
in OFCCP regulations at 41 CFR part 60-3. Section 60-1.12, OFCCP's 
Executive Order 11246 record retention rule, was amended on November 
13, 2000, to require contractors to be able to identify, where 
possible, the gender, race, and ethnicity of each applicant for 
employment. OFCCP promulgated this regulatory requirement to govern 
OFCCP compliance monitoring and enforcement (e.g., to allow OFCCP to 
verify EEO data), consistent with the UGESP. Prior to these amendments, 
OFCCP regulations did not expressly require contractors to maintain, or 
submit to OFCCP, information about the gender, race, and ethnicity of 
applicants and employees. See 65 FR 26091 (NPRM May 4, 2000); 65 FR 
68023, 68042 (Final Rule Nov. 13, 2000). The pertinent provisions of 
the November 13, 2000 final rule were codified in OFCCP regulations at 
41 CFR 60-1.12(c).
    In 2000, the Office of Management and Budget instructed the Equal 
Employment Opportunity Commission to consult with the other UGESP 
agencies to address the ``issue of how use of the Internet by employers 
to fill jobs affects employer recordkeeping obligations'' under UGESP. 
See Notice of OMB Action, OMB No. 3046-0017 (July 31, 2000). In 
particular, the Office of Management and Budget instructed the agencies 
to ``evaluate the need for changes to the Questions and Answers 
accompanying the Uniform Guidelines necessitated by the growth of the 
Internet as a job search mechanism.'' Id.
    On March 4, 2004, the UGESP agencies issued a Notice in the Federal 
Register seeking comments under the Paperwork Reduction Act about the 
burdens and utility of interpretive guidance intended to clarify how 
UGESP applies in the context of the Internet and related electronic 
data technologies. 69 FR 10152 (March 4, 2004). The preamble to the new 
interpretive guidance discussed the need for clarification of UGESP 
obligations in the context of the Internet and related electronic data 
technologies. See 69 FR 10154-155. The UGESP agencies expressly 
contemplated that ``[e]ach agency may provide further information, as 
appropriate, through the issuance of additional guidance or regulations 
that will allow each agency to carry out its specific enforcement 
responsibilities.'' 69 FR 10153.
    On March 29, 2004, OFCCP published a Notice of Proposed Rulemaking 
proposing amendments to OFCCP regulations governing applicant 
recordkeeping requirements. 69 FR 16446, 16449 (March 29, 2004). OFCCP 
determined that additional regulations were required to clarify OFCCP 
applicant recordkeeping requirements in light of OFCCP's unique use of 
applicant data for compliance monitoring and other enforcement 
purposes.
    In the proposed rule, OFCCP proposed to amend OFCCP regulations at 
41 CFR 60-1.3 to add a definition of ``Internet Applicant.'' 69 FR 
16449. The proposed definition of ``Internet Applicant'' involved four 
criteria: (1) The job seeker has submitted an expression of interest in 
employment through the Internet or related electronic data 
technologies; (2) the employer considers the job seeker for employment 
in a particular open position; (3) the job seeker's expression of 
interest indicates the individual possesses the advertised, basic 
qualifications for the position; and, (4) the job seeker does not 
indicate that he or she is no longer interested in employment in the 
position for which the employer has considered the individual. 69 FR 
16449. Under the proposed rule, ``advertised, basic qualifications'' 
were qualifications that the employer advertises to potential 
applicants that they must possess in order to be considered for the 
position. 69 FR 16449. The proposed definition further provided that 
``advertised, basic qualifications'' must be noncomparative, objective, 
and job-related. 69 FR 16449-450.
    The proposed rule also would amend 41 CFR 60-1.12(a) to require 
contractors to retain records of all expressions of interest through 
the Internet or related electronic technologies. 69 FR 16450.

[[Page 58947]]

Lastly, the proposed rule would amend 41 CFR 60-1.12(c)(1)(ii) to 
incorporate the new category of ``Internet Applicant,'' as defined in 
the proposed amendment to section 60-1.3 and to distinguish between 
``applicants,'' i.e., expressions of interest in employment that are 
not submitted through the Internet and related electronic technologies, 
and ``Internet Applicants.'' 69 FR 16450.
    OFCCP received 46 comments from 45 entities: four individuals, nine 
interest groups, an academic organization, the Chairman of the U.S. 
House of Representatives Committee on Education and the Workforce's 
Subcommittee on Employer-Employee Relations, seventeen employers who 
are covered contractors within OFCCP's jurisdiction, three trade 
associations, one law firm that represents contractors, and nine 
consultants that represent contractors.
    The commenters offered a diverse array of views on the proposed 
rule. Almost all of the comments focused on four general areas: (1) The 
relationship between the proposed rule and the UGESP Additional 
Questions and Answers; (2) the specific criteria of the proposed 
``Internet Applicant'' definition, especially the part of the 
definition involving ``advertised, basic qualifications;'' (3) the 
recordkeeping requirements of the proposed rule; and (4) the treatment 
of ``traditional'' expressions of interest, i.e., those made through 
means other than the Internet or related electronic data technologies.
    Several commenters also addressed significant issues related to 
OFCCP compliance monitoring and enforcement activities under the 
proposed rule, including OFCCP's use of labor force statistics and the 
effective date of the final rule.

III. Summary and Explanation of the Final Rule

    The final rule, for the most part, adopts the text that was 
proposed in the March 29, 2004 NPRM. However, in response to the public 
comments, OFCCP has modified the proposed text in certain respects. The 
discussion which follows identifies the significant comments received 
in response to the NPRM, provides OFCCP's responses to those comments, 
and explains any resulting changes to the proposed rule.

Discussion of Comments and Revisions

Comments Regarding the Relationship Between the Proposed UGESP 
Additional Questions and Answers and the OFCCP Proposed Rule

    Many of the commenters expressed concern about the relationship 
between OFCCP's proposed rule and the Proposed UGESP Additional 
Questions and Answers. Most of these commenters argued that the 
proposals are not sufficiently coordinated, which could create 
confusion among employers, and could lead to inconsistent or even 
conflicting obligations.\1\ Many of these commenters, such as Society 
for Human Resources Management (SHRM), ORC Worldwide (ORC), National 
Association of Manufacturers (NAM), and National Industry Liaison Group 
(NILG), pointed out that this perceived lack of coordination could lead 
to inadequate compliance with either of the rules and enormous 
recordkeeping burdens for employers. The Equal Employment Advisory 
Council (EEAC) believed that the OFCCP proposal conflicts in several 
important respects with the proposed UGESP Additional Questions and 
Answers. Gaucher Associates believed that the OFCCP proposal conflicts 
with OFCCP's prior informal interpretation of UGESP.
---------------------------------------------------------------------------

    \1\ See, e.g., Blount International, Inc., Computer Associates 
International, Inc., Glenn Barlett Consulting Services, LLC, L-3 
Communications, Maly Consulting LLC, Motorola Corp., Society for 
Human Resource Management, Southwest Airlines Co., ORC Worldwide, 
National Association of Manufacturers, National Industry Liaison 
Group, Morgan, Lewis & Bockius LLP, Thomas Houston Associates, Inc., 
TOC Management Services, Nancy J. Purvis, Sentari Technologies, 
Inc., Society for Industrial and Organizational Psychology, 
Louisiana Pacific Corp., and Premier Health Partners.
---------------------------------------------------------------------------

    These commenters recommended an array of differing solutions for 
this coordination problem. Most of the commenters preferred that the 
UGESP agencies more explicitly adopt the ``basic qualifications'' 
component of the OFCCP applicant definition.\2\ Several commenters 
argued against the OFCCP proposed rule altogether and asserted a 
preference for the UGESP proposal.\3\
---------------------------------------------------------------------------

    \2\ See, e.g., American Bankers Association, Chairman of the 
U.S. House of Representatives Committee on Education and the 
Workforce's Subcommittee on Employer-Employee Relations, Computer 
Associates International, Inc., L-3 Communications, ORC Worldwide, 
Motorola, Inc., National Association of Manufacturers, National 
Industry Liaison Group, Morgan, Lewis & Bockius LLP, Sentari 
Technologies, Inc., Siemens USA, Society for Human Resource 
Management, Society for Industrial and Organizational Psychology, 
Southwest Airlines Co., Thomas Houston Associates, Inc., TOC 
Management Services, Louisiana Pacific Corp., and Premier Health 
Partners.
    \3\ See, e.g., Blount International, Inc., The Leadership 
Conference on Civil Rights, the National Women's Law Center, and the 
Lawyers' Committee for Civil Rights Under Law.
---------------------------------------------------------------------------

    OFCCP agrees with the commenters that coordination between this 
final rule and the proposed UGESP Additional Questions and Answers is 
desirable. While the Department believes that the NPRM was consistent 
with the proposed UGESP Additional Questions and Answers, the 
Department will work with the other UGESP agencies to coordinate the 
final UGESP Additional Questions and Answers to ensure that contractors 
do not face inconsistent applicant recordkeeping obligations.
    Morgan, Lewis & Bockius LLP asked how OFCCP interprets procedures 
for evaluating Internet Applicant recordkeeping obligations under 
section 60-1.12 and UGESP. To make clear OFCCP's interpretation of 
procedures regarding Internet Applicant recordkeeping under both rules, 
OFCCP has added a new regulatory provision, section 60-1.12(d), to the 
final rule. The new provision, captioned ``Adverse impact 
evaluations,'' explains that when evaluating whether a contractor has 
maintained information on impact and conducted an adverse impact 
analysis under Part 60-3 with respect to Internet hiring procedures, 
OFCCP will require only those records relating to the analyses of the 
impact of employee selection procedures on Internet Applicants and the 
impact of employment tests. As discussed below, OFCCP does not deem 
employment tests to be basic qualifications under the final rule and 
contractors must continue to collect and maintain records related to 
the impact of employment tests that are used as employee selection 
procedures, without regard to whether the tests were administered to 
Internet Applicants. However, OFCCP's compliance evaluations will not 
be limited to an evaluation of those records produced by the 
contractor. During compliance evaluations OFCCP will continue to look 
broadly at all aspects of a contractor's compliance with its 
obligations to refrain from discrimination in recruitment, hiring, and 
other employment practices, including the possible adverse impact of 
screens for basic qualifications.
    As a technical matter, today's rule redesignates the former section 
60-1.12(d), Failure to preserve records, as section 60-1.12(e), and 
removes former section 60-1.12(e), Applicability. The latter section 
was contained in the regulations merely to indicate the Office of 
Management and Budget's approval under the Paperwork Reduction Act of a 
previously published recordkeeping requirement. 62 FR 66971 (Dec. 22,

[[Page 58948]]

1997). Accordingly, it is no longer necessary.

General Comments on OFCCP's Proposed Definition of ``Internet 
Applicant''

    Most commenters provided comments specific to one or more of the 
parts and subparts of OFCCP's proposed definition of ``Internet 
Applicant.'' OFCCP discusses below these comments in relation to each 
specific part or subpart of the proposed ``Internet Applicant'' 
definition to which they apply.
    However, several commenters, including EEAC, NILG and Glenn Barlett 
Consulting Services, Inc. (GBCS), expressed general concern that 
OFCCP's proposed definition is too precise and prescriptive, in light 
of the variety of recruiting and selection practices that employers 
utilize. These commenters requested that OFCCP adopt more general 
guidelines that afford employers significant discretion in determining 
whether an individual qualifies as an ``applicant'' under the 
employer's own recruiting and selection systems. For example, GBCS 
argued that employers should be permitted to determine any point in the 
selection process in which race, ethnicity, and gender data would be 
collected. GBCS noted, ``[m]any contractors currently solicit race, 
ethnicity, and gender at the interview stage.''
    OFCCP disagrees with commenters that suggested that general 
guidelines are preferable to clear rules. OFCCP believes that general 
guidelines would not provide clear guidance on compliance requirements 
or ensure adequate protections for employees and applicants. As many 
commenters have pointed out, over the years, there has been significant 
controversy between OFCCP and the contractor community as to whether a 
particular applicant recordkeeping practice satisfies OFCCP 
requirements. This controversy was fueled by the lack of clear rules 
about applicant recordkeeping requirements, and, in particular, clear 
rules about applicant recordkeeping requirements in the context of the 
Internet and related electronic technologies. Without clear rules, 
OFCCP cannot secure general compliance with the requirements, either 
through compliance assistance or compliance monitoring.
    Northern California and Silicon Valley Industry Liaison Group 
requested that OFCCP expressly state in the final rule that the 
regulatory definition of ``Internet Applicant'' provides a minimum 
requirement for contractors, but also permits contractors to 
voluntarily implement a more expansive definition of ``applicant'' for 
OFCCP recordkeeping purposes.
    OFCCP is well aware that contractors utilize a variety of 
recruitment and selection practices. Nothing in the final rule alters 
contractors' discretion to determine their own recruitment and 
selection practices and procedures. Rather, the final rule simply 
requires contractors to maintain sufficient records to allow both the 
employer and OFCCP to monitor the contractor's selection practices for 
potential discrimination. OFCCP disagrees with the recommendation that 
contractors be afforded ultimate discretion to determine recordkeeping 
requirements. OFCCP prescribes recordkeeping standards in order to 
enforce E.O. 11246, which prohibits employment discrimination on the 
basis of race, color, national origin, religion, and sex. OFCCP 
regulations implementing E.O. 11246 require contractors to self audit 
their own selection practices to ensure nondiscrimination. See 41 CFR 
60-2.17, 60-3.4. OFCCP could not enforce E.O. 11246 effectively to 
ensure nondiscrimination if contractors are themselves the ultimate 
arbiters of whether sufficient records are available for OFCCP 
compliance monitoring activities. Nor, in OFCCP's judgment, could 
contractors adequately self audit their own selection practices without 
adequate applicant recordkeeping. Thus, the final rule establishes 
minimum standards for applicant recordkeeping in the context of the 
Internet and related electronic technologies. Contractors, however, may 
voluntarily adopt recordkeeping practices that are broader than those 
mandated by the final rule.

Comments on OFCCP's Proposed Definition of ``Internet Applicant''

Part 1: ``Submits an expression of interest in employment through the 
Internet or related electronic data technologies;''
    In the proposed rule, ``Internet Applicant'' was defined as any 
individual who satisfied four criteria. OFCCP has retained the four 
criteria in the final rule. The first criterion of the proposed 
definition required that the individual ``[s]ubmits an expression of 
interest in employment through the Internet or electronic data 
technologies.'' The preamble to the proposed rule made clear that this 
provision applied only to expressions of interest in employment through 
the Internet or related electronic data technologies and that the 
existing standards would apply to expressions of interest through 
traditional means.
    OFCCP solicited comments on this subject in the preamble of the 
proposed rule:

    The new interpretive guidelines promulgated by the UGESP 
agencies apply only to the Internet and related technologies. 
Because OFCCP relies on applicant data to determine whether to 
conduct an on-site audit of a contractor's workplace, OFCCP is 
concerned that the data allow for meaningful analysis. The proposed 
rule creates differing standards for data collection for traditional 
applicants versus Internet Applicants for the same job. Accordingly, 
if an employer's recruitment processes for a particular job involve 
both electronic data technologies, such as the Internet, and 
traditional want ads and mailed, paper submissions, the proposed 
rule would treat these submissions differently for that particular 
job. We are unsure whether this dual standard will provide OFCCP 
with meaningful contractor data to assess in determining whether to 
commit agency resources into an investigation of a contractor's 
employment practices. Therefore, OFCCP expressly solicits comments 
on this issue.

69 FR 16447 (March 29, 2004). OFCCP received many comments regarding 
whether the standard for ``Internet Applicant'' should be applied to 
individuals who submit an expression of interest through a means other 
than the Internet or related electronic data technologies. Many of the 
commenters addressed this subject and virtually all argued that the 
definition of applicant should not depend on the means by which an 
expression of interest comes into the employer's possession.\4\ Most of 
these commenters asserted that the differing definitions of applicant 
would cause confusion and impose significant burdens on employers who 
would have to maintain two different recordkeeping systems.\5\ Several 
of the commenters,

[[Page 58949]]

including HR Analytical Services, L-3 Communications, and the U.S. 
Chamber of Commerce, noted that the applicant data employers would 
obtain under the proposed rule would not provide for meaningful 
analysis of recruitment and hiring practices. Several commenters, such 
as Siemens USA (Siemens), Gaucher Associates, and SHRM, also asserted 
that a dual standard may create an incentive for employers not to 
consider expressions of interest through traditional means, such as 
mailing a paper resume, which would work to the disadvantage of persons 
who do not have ready access to the Internet.
---------------------------------------------------------------------------

    \4\ See, e.g., American Bankers Association, Chairman of the 
U.S. House of Representatives Committee on Education and the 
Workforce's Subcommittee on Employer-Employee Relations, Computer 
Associates International, Inc., Glenn Barlett Consulting Services, 
HR Analytical Services, Kairos Services, Inc., Lawyers' Committee 
for Civil Rights Under Law, Leadership Conference on Civil Rights, 
L-3 Communications, Lorillard, Inc., Maly Consulting LLC, Morgan, 
Lewis & Bockius LLP, Motorola Corp., ORC Worldwide, National Women's 
Law Center, National Industry Liaison Group, Northern California and 
Silicon Valley Industry Liaison Group, Siemens USA, Society for 
Human Resource Management, Society for Industrial and Organizational 
Psychology, Southwest Airlines Co., Thomas Houston Associates, Inc., 
TOC Management Services, and U.S. Chamber of Commerce. As discussed 
below, several of these commenters, including Lawyers' Committee for 
Civil Rights Under Law, Leadership Conference on Civil Rights, and 
National Women's Law Center, disagreed with the proposed rule's 
reference to ``basic qualifications'' in defining ``Internet 
Applicant.''
    \5\ See, e.g., American Bankers Association, Computer Associates 
International, Inc., Gaucher Associates, HR Analytical Services, L-3 
Communications, ORC Worldwide, Morgan, Lewis & Bockius LLP, Motorola 
Corp., Nancy J. Purvis, National Women's Law Center, Society for 
Human Resource Management, Society for Industrial and Organizational 
Psychology, Southwest Airlines Co., Thomas Houston Associates, Inc., 
and U.S. Chamber of Commerce.
---------------------------------------------------------------------------

    In response to the comments, OFCCP added a related provision in the 
final rule which eliminates the proposed rule's dual standard for 
Internet versus traditional applicants, but only as to positions for 
which the contractor considers expressions of interest through both the 
Internet and traditional means. To make this rule clearer, the final 
rule adds three examples that explain this new provision. In the first 
example, the contractor solicits potential applicants for a position 
that is posted on its Web site. The contractor's Web site encourages 
potential applicants to complete an on-line profile to express an 
interest in the position. The contractor's Web site also advises 
potential applicants that they can mail a hard-copy resume with a cover 
letter that identifies the position for which they would like to be 
considered. In this example the contractor considers individuals 
expressing interest in a position using on-line profiles, an Internet 
technology, and mailed hard-copy resumes, a traditional method of 
application. Since the contractor considers expressions of interest 
through both on-line profiles and mailed hard-copy resumes, the 
Internet Applicant rule applies to both types of expressions of 
interest. In the second example, the contractor posts an opening for a 
position on its Web site and encourages potential applicants to 
complete an on-line profile. The contractor also receives a large 
number of unsolicited hard-copy resumes in the mail each year. The 
contractor scans the hard-copy resumes into an internal database that 
also includes all the on-line profiles that individuals have completed 
for various jobs. The contractor uses this internal database to find 
potential applicants for a position posted on the contractor's Web 
site. In this example, the Internet Applicant rule applies to both the 
on-line profiles and the unsolicited paper resumes. In the third 
example, the contractor does not consider potential applicants using 
Internet or related technologies, and, therefore, the Internet 
Applicant rule does not apply.
    OFCCP agrees with the commenters that the bifurcated standard 
contained in the proposed rule would not have provided useful data 
where the contractor considers both types of expressions of interest 
for a particular position. Indeed, this bifurcated standard would 
result in essentially two applicant data pools--one describing 
individuals who possess the basic qualifications and another describing 
some individuals who do not possess those basic qualifications--
depending on the manner in which the employer obtained the expression 
of interest. Because the pools are composed differently, OFCCP could 
not draw meaningful conclusions from analysis of the combined pool. 
OFCCP also shares the concerns regarding the complexity of such a 
framework and the corresponding difficulty in achieving substantial 
compliance through compliance assistance and compliance monitoring. 
Thus, in the final rule, OFCCP eliminated the differing standards for 
data collection for traditional applicants versus Internet Applicants 
for the same job when the employer considers both types of applicants. 
Under the final rule, where the Internet Applicant standard applies to 
a particular position, a particular expression of interest that does 
not qualify as an ``Internet Applicant'' for that position (e.g., 
because the individual did not possess the basic qualifications for the 
position), will not qualify as an ``applicant'' for that position, as 
the term ``applicant'' is used in OFCCP regulations at 41 CFR 60-
1.12(c). Further, pursuant to section 60-1.12(d), where the Part 60-1 
Internet Applicant standard applies to a particular position, OFCCP 
will only require those records under Part 60-3 (other than those 
related to job seekers screened by a test used as a selection 
procedure) that relate to job seekers that are Internet Applicants as 
defined in 41 CFR 60-1.3. OFCCP modified the text of section 60-
1.12(c)(1)(ii) in the final rule to make clear that either the 
``applicant'' standard or the ``Internet Applicant'' standard would 
apply for a particular position, but not both. In the final rule, 
section 60-1.12(c) requires contractors to maintain records that 
identify ``where possible, the gender, race, and ethnicity of each 
applicant or ``Internet Applicant'' as defined in 41 CFR 60-1.3, 
whichever is applicable to the particular position.''
    However, OFCCP does not believe that these problems and concerns 
are present to the same extent, if at all, where the contractor 
considers only traditional expressions of interest for a particular 
position. In such a situation, a single standard is used to determine 
who is an applicant. For example, a manufacturer that hires for 
assembly line positions and considers only individuals who fill out and 
submit a hard copy application form has a single data pool--no member 
of which are Internet Applicants. This contractor can solicit race, 
ethnicity, and gender information through a voluntary self-
identification form provided with the application form. In this 
example, the applicant pool consists of those individuals who completed 
and submitted an application form, applying a single, traditional 
standard for who is an applicant.
    OFCCP received several other comments about this part of the 
proposed rule. The Leadership Conference on Civil Rights (LCCR) 
requested that OFCCP ``make clear that there are multiple ways for a 
potential applicant to submit an expression of interest in a particular 
position.'' LCCR's concern was that an employer might refuse to 
consider the expressions of interest of individuals who do not follow 
the employer's desired process for making such expressions of interest. 
LCCR also was concerned that employers might make ad hoc exceptions to 
their standard process for accepting expressions of interest. LCCR 
argued that ``any guidance that is developed should make clear that 
individuals who reasonably believe, based on the information they 
received from the employer, that they have applied for a particular 
position should be considered applicants for that position and recorded 
a (sic) such.''
    OFCCP has addressed these comments fully in the section that 
discusses the second criterion for the ``Internet Applicant'' 
definition. OFCCP agrees that contractors should not be permitted to 
selectively determine who will be considered for employment based on 
the qualifications information contained on an expression of interest. 
OFCCP has added an explicit definition of ``considers the individual 
for employment in a particular position.'' Under the final rule at 
subsection (3) of the definition of Internet Applicant, `` `considers 
the individual for employment in a particular position,' means that the 
contractor assesses the substantive information provided in the

[[Page 58950]]

expression of interest with respect to any qualifications involved with 
a particular position.'' This definition forecloses the possibility 
that a contractor could evaluate an individual's qualifications for a 
particular position without thereby having ``considered'' the 
individual.
    At the same time, OFCCP does not provide a blanket requirement that 
contractors must consider any and all expressions of interest they 
receive, regardless of the manner or nature of the expression of 
interest. OFCCP makes this clear in the final rule (subsection (3) of 
the Internet Applicant definition) through the definition of 
``considers the individual for employment in a particular position,'' 
which further provides that ``[a] contractor may establish a protocol 
under which it refrains from considering expressions of interest that 
are not submitted in accordance with standard procedures the contractor 
establishes. Likewise, a contractor may establish a protocol under 
which it refrains from considering expressions of interest, such as 
unsolicited resumes, that are not submitted with respect to a 
particular position.'' Under the final rule, it is the contractor's 
actual practice with respect to a particular expression of interest 
that determines whether the contractor has ``considered'' that 
expression of interest and similar expressions of interest. For 
example, if the contractor's policy is to accept expressions of 
interest only through its Web site, but its actual practice is to also 
review faxed resumes and scan those it is interested in into its 
database, the contractor's actual practice is to consider faxed resumes 
as well as expressions of interest received through its Web site. This 
is consistent with OFCCP's longstanding policy to permit contractor's 
to dispose of unsolicited resumes if the contractor has a consistently 
applied policy of not considering unsolicited resumes.
    OFCCP investigates whether a contractor has such a protocol by 
reviewing the contractor's hiring procedures and policies and by 
reviewing the contractor's hiring practices to determine whether those 
procedures and policies were consistently and uniformly followed.
    Several other commenters, including EEAC, Louisiana Pacific Corp., 
and Premier Health Partners, criticized the proposed rule for not 
including a requirement that the individual make an expression of 
interest in accordance with the employer's standard procedures for 
submitting applications.
    Several commenters, including EEAC, ORC, SHRM, and the Society for 
Industrial and Organizational Psychology (SIOP), requested that this 
part of the proposed definition expressly require that the expression 
of interest must be an expression for a particular position. Otherwise, 
these commenters argued, any expression of interest might qualify an 
individual as an applicant for any position, which would impose 
significant burdens on contractors if the potential applicant pool is 
voluminous. ORC offered the example of an employer that searches 
Monster.com and finds over 20,000 resumes of individuals who satisfy 
the basic qualifications for a particular position. ORC argued that all 
20,000 of these individuals would be applicants under OFCCP's proposed 
definition, unless the definition is somehow limited to those 
individuals who express an interest in the particular position for 
which the contractor is considering the individual. SIOP argued that 
contractors will face significant recordkeeping burdens if expressions 
of interest are not limited to those for a particular position because 
the proposed rule would require contractors to retain all expressions 
of interest, regardless of whether the individual qualifies as an 
Internet Applicant.
    OFCCP agrees that the proposed data collection and recordkeeping 
requirements would be unreasonable in the example ORC offered. To 
address these situations, the agency has modified or clarified several 
provisions of the proposed rule. Specifically, OFCCP expressly states 
in the final rule (subsection (3) of the definition of ``Internet 
Applicant'') that ``[i]f there are a large number of expressions of 
interest, the contractor does not `consider the individual for 
employment in a particular position' by using data management 
techniques that do not depend on assessment of qualifications, such as 
random sampling or absolute numerical limits to reduce the number of 
expressions of interest to be considered, provided that the sample is 
appropriate in terms of the pool of those submitting expressions of 
interest.'' Data management techniques are not ``appropriate'' under 
subsection (3) if they are not facially neutral or if they produce 
disparate impact based on race, gender, or ethnicity in the expressions 
of interest to be considered. Further, OFCCP modified the fourth part 
(subsection (1)(iv)) of the proposed definition of ``Internet 
Applicant'' to require that ``[t]he individual at no point in the 
contractor's selection process prior to receiving an offer of 
employment from the contractor, removes himself or herself from further 
consideration or otherwise indicates that he or she is no longer 
interested in the position.''
    OFCCP also added a related provision (subsection (5) of the 
definition of ``Internet Applicant'') to clarify that, ``a contractor 
may conclude that an individual has removed himself or herself from 
further consideration, or has otherwise indicated that he or she is no 
longer interested in the position for which the contractor has 
considered the individual, based on the individual's express statement 
that he or she is no longer interested in the position, or on the 
individual's passive demonstration of disinterest shown through 
repeated non-responsiveness to inquiries from the contractor about 
interest in the position. A contractor also may determine that an 
individual has removed himself or herself from further consideration or 
otherwise indicated that he or she is no longer interested in the 
position for which the contractor has considered the individual based 
on information the individual provided in the expression of interest, 
such as salary requirements or preferences as to type of work or 
location of work, provided that the contractor has a uniformly and 
consistently applied policy or procedure of not considering similarly 
situated job seekers. If a large number of individuals meet the basic 
qualifications for the position, a contractor may also use data 
management techniques, such as random sampling or absolute numerical 
limits, to limit the number of individuals who must be contacted to 
determine their interest in the position, provided that the sample is 
appropriate in terms of the pool of those meeting the basic 
qualifications.'' Data management techniques are not ``appropriate'' 
under subsection (5) if they are not facially neutral or if they 
produce adverse impact based on race, gender, or ethnicity in the job 
seekers that will be contacted by the contractor to discern interest in 
the job. Finally, in the final rule (Sec.  60-1.12(a)), OFCCP clarified 
that, when a contractor uses a third-party resume database, the 
contractor must retain the electronic resumes of job seekers who met 
the basic qualifications for the particular position who are considered 
by the contractor, not all the resumes contained in the third-party 
resume database, along with records identifying job seekers contacted 
regarding their interest in a particular position, a record of the 
position for which each search of the database was made, the 
substantive search criteria used, and the date of the search.
    Returning to ORC's example in light of these modifications, the 
contractor may reduce the burden from applicant

[[Page 58951]]

recordkeeping obligations by determining which of the 20,000 
individuals from Monster.com to contact through random sampling or an 
absolute numerical technique.\6\ The contractor could also limit 
burdens from recordkeeping obligations by determining which of the 
20,000 individuals are interested in the position through the 
individuals' stated preferences as to type or location of work, or 
salary requirements. The contractor would be required to retain only 
the resumes of job seekers who met the basic qualifications for the 
particular position and who were considered by the contractor, not 
20,000 resumes or all the resumes in the Monster.com database.
---------------------------------------------------------------------------

    \6\ Under a random sampling technique, the employer considers 
only a small subset of resumes drawn randomly from the 20,000 
resumes; many spreadsheets and database software packages offer 
random sampling functions. Under an absolute numerical limit, the 
employer reviews only a predesignated number of resumes, such as the 
first 100 resumes.
---------------------------------------------------------------------------

    Several commenters, including Gaucher Associates and Siemens USA 
(Siemens), argued that the term ``Internet and related electronic data 
technologies'' is vague and requested that OFCCP clarify the meaning of 
this term in the final rule. OFCCP will not provide a precise 
definition of this term in recognition of rapid changes in technology 
in this area. However, OFCCP does intend this term to include the types 
of technologies referenced in the preamble to the proposed UGESP 
Additional Questions and Answers as follows:

    Internet-related technologies and applications that are widely 
used in recruitment and selection today include:
    E-mail: Electronic mail allows for communication of large 
amounts of information to many sources with remarkable ease. 
Recruiters, employers, and job seekers use e-mail lists to share 
information about potential job matches. Recruiters send e-mails to 
lists of potential job seekers. These lists are obtained through 
various sources of information, such as trade or professional lists 
and employer Web site directories. Employers publish job 
announcements through e-mail to potential job seekers identified 
through similar means. Job seekers identify large lists of companies 
to receive electronic resumes through e-mail. E-mail allows all of 
these users to send the same information to one recipient or many, 
with little additional effort or cost.
    Resume databases: These are databases of personal profiles, 
usually in resume format. Employers, professional recruiters, and 
other third parties maintain resume databases. Some third-party 
resume databases include millions of resumes, each of which remains 
active for a limited period of time. Database information can be 
searched using various criteria to match job seekers to potential 
jobs in which they may be interested.
    Job Banks: The converse of the resume database are databases of 
jobs. Job seekers search these databases based on certain criteria 
to identify jobs for which they may have some level of interest. Job 
seekers may easily express interest in a large number of jobs with 
very little effort by using a job bank database. Third-party 
providers, such as America's Job Bank, may maintain job banks or 
companies may maintain their own job bank through their Web sites.
    Electronic Scanning Technology: This software scans resumes and 
individual profiles contained in a database to identify individuals 
with certain credentials.
    Applicant Tracking Systems/Applicant Service Providers: 
Applicant tracking systems began primarily to help alleviate 
employers' frustration with the large number of applications and 
resumes received in response to job postings. They also serve the 
wider purpose of allowing employers to collect and retrieve data on 
a large number of job seekers in an efficient manner. Whether in the 
form of custom-made software or an Internet service, the system 
receives and evaluates electronic applications and resumes on behalf 
of employers. For example, an employer could have the group of job 
seeker profiles from a third party provider's system searched, as 
well of those received on its own corporate Web site entered into 
one tracking system. The system would then pull a certain number of 
profiles that meet the employer-designated criteria (usually a 
particular skill set) and forward those profiles to the employer for 
consideration.
    Applicant Screeners: Applicant screeners include vendors that 
focus on skill tests and other vendors that focus on how to evaluate 
general skills. Executive recruiting sites emphasize matching job 
seekers with jobs using information about the individual's skills, 
interests, and personality.

69 FR 10155 (March 4, 2004).
Part 2: ``The employer considers the individual for employment in a 
particular open position;''
    In the proposed rule, the second criterion of the ``Internet 
Applicant'' definition required that ``[t]he employer considers the 
individual for employment in a particular open position.'' Subsection 
(1)(ii). OFCCP made one change to this text in the final rule; the word 
``open'' was deleted. The deletion was made to avoid confusion about 
whether the second criterion is met if an individual is considered for 
a position that may by open in the future, but is not currently open. 
Under subsection (1)(ii) it will be sufficient for a contractor to 
consider an individual for employment in a particular position.
    In response to comments received from the LCCR, EEAC and others 
discussed above, OFCCP added a related provision at subsection (3) of 
the definition of Internet Applicant in the final rule:

    For purposes of paragraph (1)(ii) of this definition, 
``considers the individual for employment in a particular 
position,'' means that the contractor assesses the substantive 
information provided in the expression of interest with respect to 
any qualifications involved with a particular position. A contractor 
may establish a protocol under which it refrains from considering 
expressions of interest that are not submitted in accordance with 
standard procedures the contractor establishes. Likewise, a 
contractor may establish a protocol under which it refrains from 
considering expressions of interest, such as unsolicited resumes, 
that are not submitted with respect to a particular position. If 
there are a large number of expressions of interest, the contractor 
does not ``consider the individual for employment in a particular 
position'' by using data management techniques that do not depend on 
assessment of qualifications, such as random sampling or absolute 
numerical limits, to reduce the number of expressions of interest to 
be considered, provided that the sample is appropriate in terms of 
the pool of those submitting expressions of interest.

    Subsection (3) explains that a contractor may establish a protocol 
under which it refrains from considering expressions of interest that 
are not submitted in accordance with standard procedures established by 
the contractor, or not submitted with respect to a particular position. 
However, the protocol must be uniformly and consistently applied to 
similarly situated job seekers. As previously mentioned, it is the 
contractor's actual practice that determines whether the contractor 
``considered'' the expression of interest. If a contractor's policy is 
to accept expressions of interest only through its Web site, but its 
actual practice is to review faxed resumes as well and to scan those it 
is interested in into its resume database, then the contractor 
``considers'' faxed resumes as well as expressions of interest received 
through its Web site.
    Subsection (3) also provides that if there are a large number of 
expressions of interest the contractor may use data management 
techniques to reduce the number of expressions of interest that must be 
considered, provided that the sample is appropriate in terms of the 
pool of those submitting expressions of interest. Data management 
techniques used to reduce the number of expressions of interest to be 
considered must be facially neutral in terms of race, ethnicity, gender 
or other protected factors. Data management techniques that produce 
adverse impact based on race, gender or ethnicity in the expressions of 
interest that will be considered by the contractor would not be 
appropriate.

[[Page 58952]]

    Several commenters, including Maly Consulting LLC, ORC, Siemens, 
and the SIOP, commented generally that the term ``considers'' is 
ambiguous and requested that OFCCP clarify its meaning. ORC argued that 
``considers'' should include the determination of whether an individual 
meets the basic qualifications for the position.
    Siemens was concerned that the term ``considers'' could be 
interpreted to preclude contractors from searching an internal resume 
database using successively more precise qualification searches to 
narrow the pool of potential applicants to a manageable number. Siemens 
argued that the term ``considers'' should be interpreted to permit 
contractors to use database searches to narrow a large pool of 
potential applicants down to a manageable number for individual 
evaluation. Siemens also recommended that ``considers'' be restricted 
to the stage in which ``the recruiter or hiring manager evaluates an 
actual applicant against the employer's requirements and makes a 
judgment as to which individuals should continue in the process.'' 
Similarly, SIOP argued that the term ``considers'' should not include 
searching an external resume database or ``querying an internal 
database of recruit profiles.''
    The U.S. Chamber of Commerce (the Chamber) recommended that the 
term ``considers'' be interpreted to permit an employer to count as 
``applicants'' for OFCCP purposes only ``those individuals best 
qualified to fill its positions.'' The Chamber argued that this 
interpretation of ``considers'' is necessary to permit employers to 
manage large volumes of expressions of interest while retaining their 
prerogative to select only the best qualified candidates. The Chamber 
offered an example of how its recommended interpretation of 
``considers'' might be applied: ``Hospital A'' has an opening for an 
emergency room nurse position and advertises that it is seeking 
registered nurses with hospital experience; Hospital A obtains fifty 
expressions of interest that meet the advertised, basic qualifications 
of registered nurse with hospital experience; Hospital A lacks the time 
or resources to ``consider'' all 50 of these expressions of interest, 
so it assesses which of the 50 expressions of interest indicate 
emergency room nursing experience, and finds that 20 of the 50 
expressions of interest indicate such experience; Hospital A then looks 
at 10 out of these 20 expressions of interest with emergency room 
nursing experience, determines that they are ``good candidates for the 
job,'' and submits those ten candidates for ``consideration.'' Thus, 
under the Chamber's recommended interpretation, Hospital A has 
``considered'' only the ten individuals whose expressions of interest 
indicate they are ``good candidates for the job.''
    OFCCP agrees with the commenters who recommended that the agency 
provide clear rules on applicant recordkeeping requirements. It is the 
agency's intent to provide clear rules for applicant recordkeeping that 
will allow OFCCP to enforce these requirements and that will provide 
contractors with meaningful guidance on how to comply with them. 
Therefore, OFCCP has included an express definition of ``considers the 
individual for employment in a particular position'' in subsection (3) 
of the definition of ``Internet Applicant'' in the final rule. Under 
this definition, ``considers'' involves an assessment of the job 
seeker's qualifications against any qualifications of a particular 
position, including a determination of whether a job seeker meets the 
basic qualifications for the position.
    With respect to Siemens' concern about searching a resume database, 
nothing in the definition of Internet Applicant precludes a contractor 
from engaging in multiple searches of a resume database, so long as 
each of the search criteria fall within the definition of ``basic 
qualifications.'' Moreover, a contractor need not search for all of the 
qualifications that constitute the ``basic qualifications'' for a 
particular position. If the contractor chooses not to search for all of 
the ``basic qualifications'' of the position, then it will collect race 
and gender information from a broader pool than that framed by search 
criteria that included all of the ``basic qualifications'' for the 
position. The final rule provides minimum standards for applicant 
recordkeeping. It does not prohibit contractors from voluntarily 
collecting race, ethnicity or gender information from potential 
applicants, nor does E.O. 11246 preclude contractors from voluntarily 
obtaining this information from potential applicants, as long as such 
information is used only for purposes of the contractor's affirmative 
action and nondiscrimination programs.
    However, OFCCP disagrees with Siemens, SIOP and the Chamber with 
respect to their proposals essentially to eliminate the conditions on 
``basic qualifications'' (i.e., that basic qualifications must be 
noncomparative, objective, and ``relevant to performance of the 
particular position * * *'') from the proposed definition of Internet 
Applicant. OFCCP would not have sufficient records to evaluate 
contractors' recruiting and hiring practices under E.O. 11246 if 
contractors collected race and gender information in accordance with 
the recommendations of these commenters. Under these recommendations, 
OFCCP would be unable to assess a significant portion of a contractor's 
recruiting and hiring practices, including the impact of basic 
qualifications \7\ and the comparative assessment of candidates. In the 
Chamber's example, only 10 individuals would be Internet Applicants 
under their proposal, while 50 would be under the final rule. Under 
some of these recommendations, OFCCP would be able to assess only the 
final stages of the contractor's hiring process, leaving open whether 
there was discrimination at any of the prior stages in the hiring or 
recruiting processes. Further, many of the recommendations were far too 
vague to provide a clear rule that OFCCP could enforce or that 
contractors could apply to their particular recruiting and hiring 
procedures.
---------------------------------------------------------------------------

    \7\ By contrast, under the final rule, OFCCP can assess the 
impact of ``basic qualifications'' by comparing the demographics of 
the pool of ``Internet Applicants'' with statistics on the qualified 
labor force. See discussion under ``Basic Qualifications,'' below.
---------------------------------------------------------------------------

    In addition to the comments from LCCR discussed above, LCCR and the 
National Women's Law Center (NWLC) also expressed concern that the 
proposed rule leaves to the employer's discretion whom to ``consider'' 
for a particular position and argued that OFCCP should require 
employers to ``consider'' all individuals who are similarly situated 
with respect to the manner of making their expressions of interest. 
LCCR also noted concern that an employer might make exceptions to its 
internal procedures: ``[a] misguided employer could decide that he/she 
only wanted to ``consider'' applicants with certain credentials, or 
from a particular community, regardless of their actual qualifications 
for a job.''
    As noted above, OFCCP agrees that, for purposes of defining 
applicant recordkeeping requirements, contractors should not be 
permitted to selectively determine who will be considered for 
employment based on the qualification information contained on an 
expression of interest. Otherwise, OFCCP would not have sufficient 
information to assess contractors' hiring practices for potential 
discrimination. As discussed above, OFCCP has addressed this concern 
through an explicit definition of ``considers the individual for 
employment in a particular position'' under which contractors do not 
have

[[Page 58953]]

discretion to assess information about a potential applicant's 
credentials against any qualification of a particular position without 
thereby having ``considered'' the potential applicant.
    In addition, the final rule (at Sec.  60-1.12(a)) requires 
contractors to retain records of qualifications used in the hiring 
process and any and all expressions of interest through the Internet or 
related electronic data technologies as to which the contractor 
considered the individual for a position, including records such as on-
line resumes or internal resume databases and records identifying job 
seekers contacted regarding their interest in a particular position. 
The rule also specifies that with respect to internal resume databases, 
the contractor must maintain a record of each resume added to the 
database, a record of the date each resume was added to the database, 
the position for which each search of the database was made, and 
corresponding to each search, the substantive search criteria used and 
the date of the search. In addition, with respect to external resume 
databases, the contractor must maintain a record of the position for 
which each search of the database was made, and corresponding to each 
search, the substantive search criteria used, the date of the search, 
and the resumes of job seekers who met the basic qualifications for the 
particular position who are considered by the contractor. These records 
are to be maintained regardless of whether the individual qualifies as 
an Internet Applicant under 41 CFR 60-1.3. Existing recordkeeping 
requirements (under Sec.  60-1.7 and 1.12) and OFCCP's investigative 
rights (under Sec.  60-1.20) enable OFCCP to determine whether a 
qualification actually was used for a particular position. The 
recordkeeping requirements embodied in the final rule combined with the 
existing OFCCP recordkeeping requirements will ensure that OFCCP has 
adequate information to assess whether employers are selectively 
``considering'' only certain candidates or imposing qualification 
standards that do not meet the definition of ``basic qualifications'' 
under the final rule.
Part 3: ``The individual's expression of interest indicates the 
individual possesses the advertised, basic qualifications for the 
position;''
    In the proposed rule, the third criterion of the ``Internet 
Applicant'' definition required that ``[t]he individual's expression of 
interest indicates that the individual possesses the advertised, basic 
qualifications for the position.'' 69 FR 16446, 16447 (March 29, 2004). 
The proposed rule defined ``advertised, basic qualifications'' as 
``qualifications that the employer advertises (e.g., posts a 
description of the job and necessary qualifications on its Web site) to 
potential applicants that they must possess in order to be considered 
for the position and that meet all of the following three conditions * 
* *.'' Id. at 16449.
A. ``Advertised, basic qualifications''
1. ``Advertised''
    Several commenters argued that the ``advertised'' component of the 
proposed definition of Internet Applicant conflicts with the way 
employers recruit for employees in many instances. EEAC argued that 
many employers use ``broadcast recruitment,'' under which the employer 
permits job seekers to submit a resume or register an expression of 
interest ``in being considered for a range of positions, a broad 
category of positions, or in some cases simply any position for which 
the employer might currently or at some time in the future consider the 
individual to be a good candidate.'' Siemens asserted that the proposed 
requirement that the basic qualifications be advertised could place 
``undue emphasis on the drafting of the initial announcement of the 
vacancy and qualifications.'' Siemens argued that employers cannot know 
in advance whether an advertised qualification will produce too few or 
too many candidates who meet the basic qualifications, and recommended 
that the final rule afford contractors flexibility to be able to ensure 
an adequate, but manageable applicant pool. SIOP provided comments 
similar to both EEAC and Siemens. HR Analytical Services noted that 
employers may at times truncate qualifications listed in an 
advertisement or job posting to save cost or space. ORC, SHRM, and 
Thomas Houston Associates, Inc. argued that many job seekers submit 
expressions of interest without ever viewing an advertisement for a 
specific position. Most of these commenters suggested that OFCCP revise 
the proposed definition of Internet Applicant to include qualifications 
that are ``advertised or established.''
    OFCCP acknowledges that in certain circumstances a contractor may 
not have an opportunity because of emergent business conditions to 
advertise a position before hiring a new employee. To address this 
issue, the final rule provides an alternative for qualifications that 
are not advertised. The final rule provides that if the contractor does 
not advertise for the position, the contractor may use ``an alternative 
device to find individuals for consideration (for example, through an 
external resume database),'' and establish the qualification criteria 
by making and maintaining a record of such qualifications for the 
position prior to considering any expression of interest for that 
position. Contractors must retain records of these established 
qualifications in accordance with section 60-1.12(a).
    In response to the comments, OFCCP modified this part in the final 
rule by eliminating the word ``advertised.'' Thus, subsection (1)(iii) 
of the definition of ``Internet Applicant'' in the final rule provides, 
``[t]he individual's expression of interest indicates the individual 
possesses the basic qualifications for the position. * * *''
2. ``Basic Qualifications''
    Many commenters expressed general approval of the ``basic 
qualifications'' component of the proposed rule.\8\ Several commenters 
approved generally of the concept of ``basic qualifications,'' but 
requested modifications of the proposed rule. For example, several 
commenters, such as HR Analytical Services, SHRM, and Thomas Houston 
Associates, Inc., argued that the term ``basic qualifications'' would 
cause confusion because it is not a term that is commonly used by 
employers, job seekers, or recruiters. These commenters recommended 
that the term ``minimum qualifications'' be used instead of ``basic 
qualifications,'' and argued that employers, job seekers, and 
recruiters already understand and use the term ``minimum 
qualifications.''
---------------------------------------------------------------------------

    \8\ See note 4, above.
---------------------------------------------------------------------------

    SHRM and HR Analytical Services also expressed concern that the 
word ``basic'' in the term ``basic qualifications'' somehow could be 
interpreted as a substantive limit on the types of qualifications that 
could qualify under the definition, over and above the substantive 
limits contained in the proposed definition of ``basic 
qualifications,'' i.e., that they are noncomparative, objective, and 
job related. SHRM and SIOP recommended that OFCCP provide more guidance 
on what qualifications are ``basic'' in the final rule.
    OFCCP disagrees with these commenters that a term other than 
``basic qualifications'' is desirable for purposes of the final rule. 
OFCCP believes that borrowing a term from common usage would cause more 
confusion, not less. The term ``basic qualifications'' is carefully 
defined in

[[Page 58954]]

the final rule to satisfy OFCCP compliance monitoring purposes. Under 
this definition, any qualification that is noncomparative, objective, 
and ``relevant to performance of the particular position and enabl[ing] 
the contractor to accomplish business-related goals'' may be a ``basic 
qualification.'' However, employment tests used as employee selection 
procedures, including on-line tests, are not considered basic 
qualifications under the final rule. Contractors are required to retain 
records about the gender, race and ethnicity of employment test takers 
who take an employment test used to screen them for employment, 
regardless of whether test takers are Internet Applicants under section 
60-1.3. For example, if 100 job seekers take an employment test, but 
the contractor only considers test results for the 50 who meet the 
basic qualifications for the job, demographic information must be 
solicited only for the 50 job seekers screened by test results because 
the test was used as a selection procedure only for those individuals. 
By contrast, if the contractor used the test results from 100 test 
takers to narrow the pool to 50 job seekers whose basic qualifications 
are considered, the test is used as a selection procedure and 
demographic information from all test takers must be solicited.
    The term ``basic'' is not intended to provide any substantive limit 
on the type or range of qualificati