58946 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

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 http:// 

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 onsite 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 jobrelated. 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. 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58947 

1See, 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. 2See, 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. 

3See, 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. 

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. 

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

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, 

58948 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

4See, 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.’’

5See, e.g., American Bankers Association, 

Computer Associates International, Inc., Gaucher 

Associates, HR Analytical Services, L–3 

Communications, ORC Worldwide, Morgan, Lewis 

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, 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58949 

& 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. 

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. 

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 online 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 online 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 selfidentification 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 

58950 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

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 (§ 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 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58951 

6Under 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. 

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. 

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. 

58952 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

7By 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. 

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. 

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 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58953 

8See note 4, above. 

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 § 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 § 60–1.7 and 1.12) and OFCCP’s 

investigative rights (under § 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.’’

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 

58954 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

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 businessrelated 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 qualifications that could 

meet this definition. Rather than offer 

examples of qualifications that meet the 

definition of ‘‘basic qualifications’’ for 

particular jobs—which would require 

OFCCP to describe the actual duties and 

responsibilities corresponding to the job 

titles referenced in such examples—

OFCCP provides additional discussion 

of the components (i.e., 

noncomparative, objective, and 

‘‘relevant to performance of the 

particular position * * *’’) of the 

definition in response to comments 

under separate headings below. 

A job seeker must meet all of a 

contractor’s basic qualifications in order 

to be an Internet Applicant under 

today’s rule. For example, a contractor 

initially searches an external job 

database with 50,000 job seekers for 3 

basic qualifications for a bi-lingual 

emergency room nursing supervisor job 

(a 4-year nursing degree, state 

certification as an RN, and fluency in 

English and Spanish). The initial screen 

for the first three basic qualifications 

narrows the pool to 10,000. The 

contractor then adds a fourth basic 

qualification, 3 years of emergency room 

nursing experience, and narrows the 

pool to 1,000. Finally, the contractor 

adds a fifth basic qualification, 2 years 

of supervisory experience, which results 

in a pool of 75 job seekers. Under this 

final rule, only the 75 job seekers 

meeting all five basic qualifications 

would be Internet Applicants, assuming 

other prongs of the definition were met. 

Several other commenters asserted 

that OFCCP’s proposal was unclear 

about whether screening for criteria 

other than qualifications would be 

deemed ‘‘basic qualifications’’ under the 

definition of Internet Applicant. For 

example, Morgan Lewis & Bockius LLP 

asked whether job seekers’ salary 

requirements used to define the 

applicant pool would be deemed ‘‘basic 

qualifications.’’ SIOP questioned 

whether ‘‘willingness to work in a 

specific geographic location,’’

‘‘willingness to travel a certain 

percentage of time,’’ and ‘‘willingness to 

work certain days or shifts’’ would 

qualify as ‘‘basic qualifications.’’ Several 

commenters, such as NAM and Maly 

Consulting LLC, asked whether 

contractors’ use of random sampling or 

specific numerical limits (e.g., first 30 

reviewed out of 10,000) to manage large 

volumes of expressions of interest 

would be deemed ‘‘basic 

qualifications.’’

OFCCP recognizes that contractors 

may gauge a job seeker’s willingness to 

work in the particular position through 

information the individual has provided 

about salary requirements and 

willingness to work in certain types of 

positions or certain geographic areas, 

provided that the contractor has a 

uniformly and consistently applied 

policy or procedure of not considering 

similarly situated job seekers. OFCCP 

also recognizes that contractors may 

need to use additional data management 

techniques (such as random sampling or 

numerical limits) to develop a 

reasonable applicant pool out of a large 

volume of job seekers who possess the 

basic qualifications for the particular 

position. OFCCP does not view use of 

such information or techniques to 

determine who is interested in a 

particular position to be consideration 

of ‘‘basic qualifications,’’ provided that 

the sample is appropriate in terms of the 

pool of those meeting the basic 

qualifications. OFCCP addressed these 

comments in the final rule by modifying 

the fourth part of the Internet Applicant 

definition to require that ‘‘[t]he 

individual at no point in the 

contractor’s selection process * * * 

removes himself or herself from further 

consideration or otherwise indicates 

that he or she is no longer interested in 

the position.’’ The final rule includes a 

provision (subsection (5) of the 

definition of ‘‘Internet Applicant’’) 

under which ‘‘a contractor may 

determine that an individual has 

removed himself or herself from further 

consideration * * * 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 contactor has a uniformly and 

consistently applied policy or procedure 

of not considering similarly situated job 

seekers.’’ In addition, as discussed 

above with regard to Part 2 of the 

Internet Applicant definition 

(subsection (1)(ii)), OFCCP added a 

definition of ‘‘considers the individual 

for employment in a particular 

position,’’ which also addresses these 

issues. 

In response to the comments, OFCCP 

modified subsection (4) of the definition 

of ‘‘Internet Applicant’’ by defining 

‘‘basic qualifications’’ as: ‘‘qualifications 

(i)(A) that the contractor advertises (e.g., 

posts on its web site a description of the 

job and the qualifications involved) to 

potential applicants that they must 

possess in order to be considered for the 

position, or (B) for which the contractor 

establishes criteria in advance by 

making and maintaining a record of 

such qualifications for the position prior 

to considering any expression of interest 

for that particular position, if the 

contractor does not advertise for the 

position but instead uses an alternative 

device to find individuals for 

consideration (e.g., through an external 

resume database), and (ii) that meet all 

of the following three conditions * * *’’

In the final rule, OFCCP retained most 

of the text of the proposed rule with 

respect to the ‘‘three conditions’’

referenced in the definition of ‘‘basic 

qualifications.’’ Thus, the final rule 

provides: 

(A) The qualifications must be 

noncomparative features of a job seeker. For 

example, a qualification of three years’

experience in a particular position is a 

noncomparative qualification; a qualification 

that an individual have one of the top five 

number of years’ experience among a pool of 

job seekers is a comparative qualification. 

(B) The qualifications must be objective; 

they do not depend on the contractor’s 

subjective judgment. For example, ‘‘a 

Bachelor’s degree in Accounting’’ is 

objective, while ‘‘a technical degree from a 

good school’’ is not. A basic qualification is 

objective if a third-party, with the contactor’s 

technical knowledge, would be able to 

evaluate whether the job seeker possesses the 

qualification without more information about 

the contractor’s judgment. 

(C) The qualifications must be relevant to 

performance of the particular position and 

enable the contractor to accomplish businessrelated goals. 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58955 

9With the exception of expressions of interest 

from external resume databases, where the massive 

volume of resumes makes such a requirement 

impracticable. As noted below, as of January, 2005, 

Monster.com reported that it had over 41 million 

resumes in its database. 

Several commenters opposed the use 

of ‘‘basic qualifications’’ in defining 

‘‘Internet Applicant’’ for purposes of 

OFCCP recordkeeping requirements. 

The Leadership Conference on Civil 

Rights, the National Women’s Law 

Center, and the Lawyers’ Committee for 

Civil Rights Under Law generally 

offered three arguments against the use 

of ‘‘basic qualifications’’ as a way to 

determine applicant recordkeeping 

obligations: (1) Established 

nondiscrimination legal standards do 

not require an individual to be qualified 

for a job in order to be an applicant for 

the job; (2) employers could use the 

‘‘basic qualifications’’ to manipulate the 

composition of the applicant pool, 

exclude qualified individuals, and mask 

discrimination; and (3) the purpose of 

applicant recordkeeping is to ensure 

that the qualifications standards 

employers use, including ‘‘basic 

qualifications,’’ do not discriminate 

against individuals on the basis of race, 

ethnicity or sex. In sum, these 

commenters essentially were concerned 

that OFCCP would not be able to find 

and remedy particular cases of hiring 

discrimination under the proposed rule. 

OFCCP disagrees with the three 

arguments presented by these 

commenters. As to the commenters’ first 

argument, OFCCP is proposing a 

definition of applicant for the limited 

purposes of OFCCP recordkeeping and 

data collection requirements pursuant to 

Executive Order 11246. Accordingly, 

OFCCP is not purporting to define who 

is an applicant for any purposes which 

would affect the substantive interests of 

any individual, such as for purposes of 

litigation of employment discrimination 

claims under any federal, state, or local 

antidiscrimination statute. Moreover, 

OFCCP is not aware of any case in 

which a court relied on OFCCP’s 

recordkeeping definitions for purposes 

of determining liability or remedy under 

Title VII or any other federal, state or 

local antidiscrimination statute. OFCCP 

itself may not rely on recordkeeping 

definitions to frame the appropriate 

analysis for liability or remedy purposes 

when alleging a violation of the 

nondiscrimination requirements of 

Executive Order 11246 (as opposed to 

recordkeeping requirements). 

As to the commenters’ second 

argument, contractors will not be able to 

manipulate basic qualifications in order 

to effectuate discrimination, because the 

final rule provides adequate safeguards 

against this problem. First, the final rule 

requires a contractor to retain all the 

expressions of interest it considered, 

even those of individuals who are not 

Internet Applicants.9 OFCCP will have 

access to these records during a 

compliance evaluation and will review 

them as appropriate to determine if 

discrimination exists. Second, OFCCP 

has carefully defined ‘‘basic 

qualifications’’ in the final rule, 

requiring that they be noncomparative, 

objective, and ‘‘relevant to the 

performance of the particular position 

and enabl[ing] the contractor to 

accomplish business-related goals.’’

Under the final rule, a contractor must 

retain records of all such basic 

qualifications used to develop a pool of 

Internet Applicants. Again, OFCCP will 

have access to these records during a 

compliance evaluation. 

Finally, OFCCP will rely on Census 

and other labor market data to assess 

contractors’ hiring practices for 

potential discrimination and will 

carefully review the basic qualifications 

themselves. The Supreme Court of the 

United States has authorized the use of 

comparisons between actual hiring rates 

and population or labor force statistics 

to prove hiring discrimination. See Int’l 

Bhd. of Teamsters v. United States, 431 

U.S. 324, 339 n.20 (1977) (population 

statistics); Hazelwood Sch. Dist. v. 

United States, 433 U.S. 299, 307 n.12 

(1977) (labor force statistics). As noted 

in the preamble of the proposed rule, 

hiring discrimination cases frequently 

rely on population and labor force 

statistics. See, e.g., Griggs v. Duke Power 

Co., 401 U.S. 424, 430 n.6, 431 (1971) 

(relying on Census data about the 

general population to find that a high 

school degree requirement had a 

disparate impact on AfricanAmericans); Dothard v. Rawlinson, 433 

U.S. 321, 329–330 (1977) ( ‘‘The 

application process itself might not 

adequately reflect the actual potential 

applicant pool, since otherwise 

qualified people might be discouraged 

from applying because of a selfrecognized inability to meet the very 

standards challenged as being 

discriminatory.’’); E.E.O.C. v. Joint 

Apprenticeship Comm. of Joint 

Industrial Bd. of Elec. Indus., 186 F.3d 

110, 119 (2d Cir. 1999) (general 

population and qualified labor market 

data ‘‘often form the initial basis of a 

disparate impact claim * * *’’). OFCCP 

also will directly review whether the 

qualifications appear to be relevant to 

the position at issue and whether they 

are of a type that have been subject to 

disparate impact litigation, such as 

requirements as to height and weight, 

arrest records, and high school degree or 

GED. See, e.g., 41 CFR 60–3.4(C) 

(requiring users to evaluate individual 

components of hiring process ‘‘where 

the weight of court decisions or 

administrative interpretations hold that 

a specific procedure (such as height or 

weight requirements or no-arrest 

records) is not job related in the same 

or similar circumstances’’). 

As to the commenters’ third argument 

against ‘‘basic qualifications’’—that 

OFCCP will miss particular cases of 

disparate impact discrimination—

OFCCP disagrees that the proposed 

applicant recordkeeping standards will 

make OFCCP less effective at finding 

and remedying hiring discrimination. 

Indeed, OFCCP has determined that 

applicant data under the proposed 

definition of Internet Applicant will 

make the agency much more effective at 

finding and remedying hiring 

discrimination across the range of cases. 

OFCCP’s rationale can be appreciated 

only through an understanding of how 

the agency uses applicant data. OFCCP’s 

use of applicant data is broader than 

determining whether a particular 

contractor has engaged in hiring 

discrimination. The distinction in uses 

of applicant data reflects OFCCP’s 

historical mission of focusing on 

systemic workplace discrimination. In 

Reynolds Metal Co. v. Rumsfeld, 564 

F.2d 663, 668 (4th Cir. 1977), the court 

described OFCCP’s mission and 

contrasted it with the EEOC’s: 

Both agencies are charged with the 

responsibility of eliminating employment 

discrimination, but their specific missions 

differ. The compliance office monitors 

government contractors to determine whether 

they are meeting their commitments as equal 

opportunity employers. It gives priority to 

the eradication of systemic discrimination 

rather than to the investigation and 

resolution of complaints about isolated 

instances of discrimination. 

In keeping with its unique mission, 

OFCCP uses applicant data broadly to 

deter all contractors under its 

jurisdiction from engaging in systemic 

hiring discrimination, either in the form 

of disparate impact or disparate 

treatment discrimination. OFCCP deters 

contractors in two ways: (1) By 

monitoring all contractors through a 

tiered-review approach that effectively 

targets contractors who have engaged in 

hiring discrimination; and (2) by 

effectively investigating contractors who 

have engaged in systemic hiring 

discrimination and obtaining significant 

financial awards (along with 

instatement obligations) to remedy such 

discrimination. 

58956 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

OFCCP primarily uses applicant data 

with respect to the first part of the twopart deterrence model. OFCCP uses the 

data to target OFCCP investigations at 

workplaces in which hiring 

discrimination is likely to exist. OFCCP 

initially selects a contractors 

establishment for a compliance 

evaluation based, in part, on a statistical 

analysis of workforce demographic data 

the contractor submits on annual EEO–

1 reports. Once OFCCP selects a 

contractor’s establishment for a 

compliance evaluation, OFCCP sends 

the contractor a ‘‘scheduling letter’’ that 

asks the contractor to submit data on, 

among other things, applicants and 

hires for a specified period. After 

receiving the contractor’s data, OFCCP 

analyzes the ratio of applicants and 

hires, and, based on this analysis, 

determines whether to investigate the 

contractor’s hiring practices. This initial 

analysis of applicant and hire data is a 

part of the compliance evaluation 

process known as the ‘‘desk audit.’’

OFCCP considers desk audit results 

when determining whether to conduct 

an on-site investigation, and the scope 

of any such on-site investigation. 

OFCCP typically conducts many more 

desk audits than on-site reviews, and 

uses the desk audit analysis to allocate 

agency investigation resources toward 

workplaces where the likelihood of a 

discrimination problem is highest. 

Thus, inclusion of basic qualifications 

in the definition of Internet Applicant 

under section 60–1.3 furthers OFCCP’s 

goal of targeting for in-depth reviews 

contractor’s that are potentially the 

worst offenders. If, during the desk 

audit, OFCCP were to target contractors 

for more in-depth review based on 

Internet applicant data that includes job 

seekers not meeting basic qualifications, 

OFCCP would select contractors that 

rejected a high proportion of job seekers 

because they were not even minimally 

qualified for the job. The result would 

be that OFCCP would waste finite 

resources by focusing its on-site reviews 

on contractors that were not the worst 

offenders. Under the OFCCP approach, 

targeting will be based on a contractor’s 

rejection rate of qualified applicants, a 

better predictor of worst offenders. In 

determining who are potentially the 

worst offenders for more in-depth 

reviews, OFCCP will also analyze 

whether the contractor potentially 

discriminated in hiring by comparing 

the demographic characteristics of the 

applicants hired to the demographic 

characteristics of the qualified labor 

market. During an in-depth review, 

OFCCP will be able to analyze the 

contractor’s use of basic qualifications 

by comparing the demographic 

characteristics of Internet applicants 

meeting basic qualifications with labor 

market data. Consequently, including 

basic qualifications in the definition of 

Internet Applicant furthers OFCCP’s 

goal of focusing investigative resources 

on potentially the worst offenders, 

while preserving OFCCP’s ability to 

efficiently and effectively review a 

contractor’s hiring practices for 

discrimination. 

In addition to the fact that such data 

would not permit meaningful analysis 

to guide OFCCP resource allocation 

decisions, some practical limits must be 

placed on collecting race, ethnicity, and 

gender information in this context 

because of the massive numbers of 

resumes in these databases. Otherwise, 

the applicant recordkeeping burdens 

would be excessive. Several 

commenters proposed various 

alternative definitions for ‘‘basic 

qualifications’’ that appeared to be 

attempts to address these practical 

problems. For example, Gaucher 

Associates contended that contractors 

could use sampling techniques to obtain 

race, ethnicity and gender data where 

there are large numbers of applicants. In 

limited circumstances contractors may 

use appropriate sampling techniques to 

collect information required by these 

regulations (See 41 CFR 60–3.4.A). 

However, sampling is not always 

appropriate. For example, a random 

sample that includes many individuals 

in a large resume database who have no 

interest in, nor basic qualifications for, 

a particular position would provide far 

less useful information than labor force 

statistics that are tailored for the 

position and geographic location. 

One commenter, ChevronTexaco 

Federal Credit Union (CTFCU), argued 

that the proposed rule would impose 

undue burdens on small contractors 

where a significant number of 

individuals who meet the basic 

qualifications submit an expression of 

interest. 

CTFCU contended that small 

contractors cannot afford automated 

applicant tracking systems and they 

cannot manually consider all 

individuals who meet the basic 

qualifications. CTFCU recommended 

that OFCCP apply the proposed 

‘‘Internet Applicant’’ definition and 

associated obligations only to 

‘‘employees showing underutilization of 

women and/or minorities,’’ based on 

workforce demographic data from EEO–

1 reports. 

OFCCP believes that data 

management techniques such as random 

sampling or absolute numerical limits, 

discussed above, will enable small 

contractors to comply with applicant 

recordkeeping requirements without 

undue burden. OFCCP does not agree 

that CTFCU’s recommendation would 

necessarily help small businesses 

because the burden involved with this 

proposal depends entirely on the 

amount of ‘‘underutilization.’’ Nor 

would this proposal provide records 

that OFCCP requires to enforce E.O. 

11246 for job categories in which there 

was no ‘‘underutilization.’’ As OFCCP 

understands this proposal, contractors 

would not be required to collect race, 

ethnicity or gender information about 

any individuals considered for positions 

in job categories that are not 

‘‘underutilized.’’ However, the fact that 

a broad occupational category, such as 

an AAP job group or EEO–1 job 

category, is ‘‘utilized’’ does not 

necessarily imply that there is not a 

discrimination problem in the recruiting 

or hiring process for the jobs that make 

up those occupational categories. 

3. ‘‘Non-comparative’’

In the proposed rule, OFCCP provided 

that ‘‘basic qualifications’’ must be 

‘‘non-comparative.’’ The proposed rule 

provided examples of qualifications that 

would and would not qualify as ‘‘noncomparative’’’: ‘‘a qualification of three 

years’ experience in a particular 

position is a noncomparative 

qualification; a qualification that an 

individual have one of the top five 

number of years’ experience among a 

pool of job seekers is a comparative 

qualification.’’ OFCCP retained this 

provision in the final rule. 

The Chamber argued that 

‘‘[e]stablished caselaw permits 

employers to set job qualifications ‘as 

high as [they] like [],’ based on current 

business needs, and permits employers 

to craft selection procedures that enable 

them to identify the best-qualified 

candidates for the job.’’ Based on this 

argument, the Chamber asserted that the 

‘‘noncomparative’’ component of the 

proposed rule should not be interpreted 

‘‘to imply that a candidate becomes an 

‘‘applicant’’ simply because he or she 

possesses the ‘basic’ qualifications for 

the position.’’

OFCCP disagrees with the Chamber’s 

comments. OFCCP’s proposed 

definition of Internet Applicant 

determines contractors’ recordkeeping 

obligations, it does not impose 

substantive limits on the qualifications 

a contractor may use to select 

employees. Under the interpretation 

suggested by the Chamber, OFCCP 

would not have sufficient records or 

information to evaluate whether a 

contractor’s hiring practices were 

discriminatory. In particular, OFCCP 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58957 

10The Lawyers’ Committee for Civil Rights Under 

Law joined in LCCR’s comments. However, the 

Lawyers’ Committee did not expressly reference the 

Civil Rights Act of 1991 in its comments, but 

referred only to ‘‘established legal precedent.’’ We 

understand the Lawyers’ Committee to be 

referencing the Civil Rights Act of 1991 with 

respect to the standard for defense of a disparate 

impact claim. 

11The Civil Rights Act of 1991 does not define 

the terms ‘‘job related’’ or ‘‘business necessity.’’ Nor 

have the federal courts of appeals agreed upon any 

single explanation of these terms. Compare Bew v. 

City of Chicago, 252 F.3d 891, 894 (7th Cir. 2001) 

(finding that the Civil Rights Act of 1991 adopted 

the Griggs standard and noting that ‘‘Griggs does not 

distinguish business necessity and job relatedness 

as two separate standards. It states that: ‘The 

touchstone is business necessity. If an employment 

practice which operates to exclude [a protected 

group] cannot be shown to be related to job 

performance, the practice is prohibited.’ To satisfy 

the standard, an employment test must ‘bear a 

demonstrable relationship to successful 

performance of the jobs for which it was used.’ ’’

(citations omitted)), with Ass’n of MexicanAmerican Educators v. State of California, 231 F.3d 

572, 585 (9th Cir. 2000) (en banc) (explaining that 

a ‘job related’ test measures ‘‘skills, knowledge or 

ability required for successful performance of the 

job’’), with Lanning v. Southeastern Pa. Transp. 

Auth., 181 F.3d 478, 489 (3d Cir. 1999) (‘‘Our 

conclusion that the Act incorporates this standard 

is further supported by the business necessity 

language adopted by the Act. Congress chose the 

terms ‘job related for the position in question’ and 

‘consistent with business necessity.’ Judicial 

application of a standard focusing solely on 

whether the qualities measured by an entry level 

exam bear some relationship to the job in question 

would impermissibly write out the business 

necessity prong of the Act’s chosen standard.’’). 

would not be in a position to evaluate 

a contractor’s comparative assessment of 

applicants’ qualifications. Therefore, 

OFCCP retained in the final rule the 

requirement that ‘‘basic qualifications’’

must be noncomparative. 

4. ‘‘Objective’’

In the proposed rule, OFCCP provided 

that ‘‘basic qualifications’’ must be 

‘‘objective’’ and not depend on the 

employer’s subjective judgment. OFCCP 

used the term ‘‘third party’’ in the 

proposed rule to describe how to 

determine whether a qualification is 

objective: ‘‘One way to tell an 

advertised, basic qualification is 

objective is that a third-party, unfamiliar 

with the employer’s operation, would be 

able to evaluate whether the job seeker 

possesses the qualification without 

more information about the employer’s 

judgment.’’

ORC expressed concern that the term 

‘‘third party’’ is ambiguous and that 

OFCCP’s proposed definition does not 

provide meaningful guidance about 

whether a qualification is ‘‘objective.’’

Similarly, Nancy J. Purvis argued that 

the reference to ‘‘third parties’’ would 

not work in ‘‘situations where only 

someone with sufficient technical 

knowledge (of the company, of the 

industry, of the job, etc.) will be able to 

evaluate whether or not an applicant 

meets the basic requirements.’’

OFCCP agrees with these commenters 

that, as described in the proposed rule, 

the term ‘‘objective’’ left unanswered 

whether the referenced ‘‘third-party’’

has the necessary technical expertise to 

understand whether a candidate 

possesses a technical qualification. It is 

not OFCCP’s intent to preclude 

technical qualifications from being 

‘‘basic qualifications.’’ Accordingly, 

OFCCP modified the second sentence of 

subsection (4)(b) to provide that a basic 

qualification is objective if a third party, 

with the contractor’s technical 

knowledge, would be able to evaluate 

whether the job seeker possesses the 

qualification without more information 

about the contractor’s judgment. 

5. ‘‘Job related’’

In the proposed rule, OFCCP provided 

that ‘‘basic qualifications’’ must be ‘‘jobrelated.’’ The proposed rule defined 

‘‘job-related’’ as ‘‘relevant to 

performance of the job at hand and 

enabl[ing] the employer to accomplish 

business-related goals.’’ In response to 

the comments, OFCCP eliminated the 

term ‘‘job-related’’ and replaced it with 

the phrase, ‘‘relevant to the performance 

of the particular position and enabl[ing] 

the contractor to accomplish businessrelated goals‘‘ at subsection (4)(c) of the 

definition of ‘‘Internet Applicant’’. 

The Lawyers’ Committee for Civil 

Rights Under Law and the Leadership 

Conference on Civil Rights (LCCR) 

criticized the requirement in the 

proposed rule that ‘‘basic 

qualifications’’ must be ‘‘job related.’’

They noted that the Civil Rights Act of 

1991 provides a defense to disparate 

impact claims if the criteria having the 

disparate impact can be shown to be 

‘‘job related for the position in 

question’’ and ‘‘consistent with business 

necessity.’’ 10 These commenters argued 

that OFCCP’s proposed rule leaves out 

the requirement that the basic 

qualifications must be ‘‘consistent with 

business necessity.’’ LCCR further 

argued that ‘‘the explanation of what is 

meant by ‘job-related’ seems to 

understate what the law requires by 

suggesting that any ‘relevant’ job criteria 

is sufficient to satisfy the legal 

standard.’’

OFCCP agrees with these commenters 

that use of the term ‘‘job-related’’ in the 

proposed definition of ‘‘Internet 

Applicant’’ could cause confusion 

because the term is also used in the 

Civil Rights Act of 1991. Indeed, there 

is uncertainty as to the meaning of ‘‘job 

related’’ under the Civil Rights Act of 

1991.11 Therefore, OFCCP has 

eliminated the term in the final rule and 

replaced it with the phrase, ‘‘relevant to 

performance of the particular position 

and enabl[ing] the contractor to 

accomplish business-related goals.’’

OFCCP disagrees with the 

commenters’ suggestion that the 

‘‘business necessity’’ standard should be 

incorporated into the definition of 

‘‘basic qualifications.’’ OFCCP does not 

intend to limit the qualifications that 

could be ‘‘basic qualifications’’ only to 

those which meet the ‘‘business 

necessity’’ standard. That standard is 

applicable as a defense where a 

disparate impact has already been 

proven. By including the ‘‘relevant to 

performance of the particular position 

***’’ standard in the final rule as a 

limitation on qualifications that could 

qualify as ‘‘basic qualifications,’’ OFCCP 

intends to provide a reasonable limit on 

the nature of the qualifications used 

only to define recordkeeping 

obligations. OFCCP does not intend to 

define recordkeeping obligations 

through a presumption that every 

putative ‘‘basic qualification’’ involves a 

disparate impact. Of course, once it is 

established that a criterion caused a 

disparate impact, the contractor has the 

burden of justifying that the criterion is 

job related and consistent with business 

necessity. 

Part 4: ‘‘The individual does not 

indicate that he or she is no longer 

interested in employment in the 

position for which the employer has 

considered the individual.’’

In the proposed rule, the fourth part 

of the ‘‘Internet Applicant’’ definition 

provided that ‘‘[t]he individual does not 

indicate that he or she is no longer 

interested in employment in the 

position for which the employer 

considered the individual.’’

Several commenters, including EEAC, 

Morgan, Lewis & Bockius LLP, and the 

Chamber, argued against the negative 

phrasing of this part of the proposed 

definition of ‘‘Internet Applicant’’

because it implies that an individual is 

presumed to be interested in a particular 

position even before the employer 

contacts the individual. These 

commenters expressed concern that an 

individual who does not respond to an 

employer’s inquiry would automatically 

qualify as an Internet Applicant because 

the individual has not indicated ‘‘that 

he or she is no longer interested in the 

position.’’

OFCCP does not believe that the 

negative phrasing of this part of the 

proposed rule implies—and OFCCP 

does not intend for the language to 

imply—a presumption that every 

individual who otherwise meets the 

58958 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

12See, e.g., Chairman of the U.S. House of 

Representatives Committee on Education and the 

Workforce’s Subcommittee on Employer-Employee 

Relations, Kairos Services, Inc., Louisiana Pacific 

Corp., ORC Worldwide, Morgan, Lewis & Bockius 

LLP, National Association of Manufacturers, and 

U.S. Chamber of Commerce. 

definition of Internet Applicant is 

deemed by OFCCP to be automatically 

interested in the particular position, 

even before the contractor contacts the 

individual. Subsection (5) explains that 

a contractor may conclude that an 

individual has removed himself or 

herself from the selection process or has 

otherwise indicated lack of interest in 

the position based on the individual’s 

express statement or on the individual’s 

passive demonstration of disinterest. 

For example, if an individual declines a 

contractor’s invitation for a job 

interview, he or she has removed 

himself or herself from the selection 

process. If the individual declines a job 

offer he or she has expressly shown 

disinterest in the job. If an individual 

repeatedly fails to respond to a 

contractor’s telephone inquiries or 

emails asking about his or her interest 

in a job, the individual has passively 

shown disinterest in the job. In addition 

to determining an individual’s 

abandonment of interest through an 

express or passive negative response to 

the contractor’s inquiry as to whether 

the individual is interested in the 

position, a contractor may also presume 

a lack of continuing interest based on a 

review of the expression of interest. 

Statements pertaining to the 

individual’s interest in the specific 

position or type of position at issue, the 

location of work, and his or her salary 

requirements may provide the basis for 

determining the individual is no longer 

interested in the position, provided that 

the contractor has a uniformly and 

consistently applied policy or procedure 

of not considering similarly situated job 

seekers. If the potential applicant 

withdraws from further consideration 

after the point at which the individual 

already has qualified as an ‘‘Internet 

Applicant’’ under this final rule, the 

employer must retain any race, 

ethnicity, or gender information which 

the individual already provided, as well 

as the individual’s expression of 

interest. 

In response to the comments, which 

expressed concern with the clarity of 

the proposed rule, OFCCP has slightly 

modified this part (subsection (1)(iv)) in 

the final rule to read: ‘‘(iv) The 

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 explained in subsection (5) 

of the definition of ‘‘Internet Applicant’’

in the final rule that a contractor may 

determine whether an individual has 

removed himself or herself from 

consideration 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. Subsection (5) further explains 

that 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. 

Comments on OFCCP’s Proposed 

Revisions To Record Retention 

Requirements Section 60–1.12(a): 

Record Retention 

In the proposed rule, OFCCP added to 

existing recordkeeping requirements a 

provision which would require 

contractors to maintain ‘‘any and all 

employment submissions through the 

Internet or related electronic 

technologies, such as on-line resumes or 

resume databases (regardless of whether 

an individual qualifies as an Internet 

Applicant under 41 CFR 60–1.3).’’

Many commenters expressed concern 

that the proposed record retention 

requirements would impose significant 

burdens on contractors, due to the 

massive volume of expressions of 

interest.12 TOC Management Services 

(TOC) contended that the proposed rule 

would require employers to maintain all 

unsolicited expressions of interest, even 

those that were never considered by the 

employer. TOC asserted that this 

proposed requirement runs contrary to 

OFCCP’s longstanding practice of 

allowing an employer to dispose of 

unsolicited expressions of interest if the 

employer adheres to a general policy of 

not considering them. The Chamber 

argued that the proposed recordkeeping 

provision ‘‘would require employers to 

search all the computer and paper files 

of each of its employees to identify any 

expressions of interest that were sent to 

someone in the company but were never 

routed through the appropriate channels 

to those responsible for recruitment and 

hiring.’’ Kairos Services, Inc. suggested 

that contractors should be required only 

to maintain records on individuals who 

qualify as ‘‘Internet Applicants’’ under 

the proposed rule. 

In response to the comments, OFCCP 

modified section 60–1.12(a) of the final 

rule to require contractors to maintain 

any and all expressions of interest 

through the Internet or related 

electronic data technologies as to which 

the contractor considered the individual 

for a particular position, such as on-line 

resumes or internal resume databases 

and records identifying job seekers 

contacted regarding their interest in a 

particular position. In addition, for 

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. Also, 

for 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 any job seekers who met 

the basic qualifications for the particular 

position who are considered by the 

contractor. These records must be 

maintained regardless of whether the 

individual qualifies as an Internet 

Applicant under 41 CFR 60–1.3. 

OFCCP agrees that the proposed rule 

could present unwarranted 

recordkeeping burdens if the contractor 

receives a large number of expressions 

of interest. Therefore, OFCCP modified 

this provision in the final rule to clarify 

that contractors must maintain 

‘‘expressions of interest through the 

Internet or related electronic data 

technologies as to which the contractor 

considered the individual for a 

particular position ***’’ [emphasis 

added]. ‘‘Considers the individual for 

employment in a particular position’’

(as defined in subsection 3 of the 

definition of ‘‘Internet Applicant’’) 

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 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58959 

submitted with respect to a particular 

position. 

If there are a large number of 

expressions of interest to be considered, 

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. 

Under section 60–1.12(a), contractors 

avoid significant burdens even if there 

are large numbers of expressions of 

interest, because contractors are not 

required to retain records regarding 

individuals who were never considered 

for a particular position. However, 

OFCCP disagrees with the suggestion 

that contractors be required to maintain 

only expressions of interest of 

individuals who qualify as ‘‘Internet 

Applicants.’’ Part of the reason that 

OFCCP requires contractors to maintain 

such records is to ensure that they are 

actually complying with the definition 

of ‘‘Internet Applicant.’’ OFCCP could 

not verify the contractor’s compliance 

with the ‘‘Internet Applicant’’ definition 

if the agency did not have access to 

records of individuals whom the 

contractor contends did not meet that 

definition. 

Several commenters, including NAM, 

Siemens, and TOC, were also concerned 

that the proposed rule would require 

contractors to maintain a ‘‘snapshot’’ of 

the resume database for each search. 

These commenters suggested that 

OFCCP require employers to retain any 

resume databases, specific search terms 

used in each search, and the date of 

each search. 

OFCCP agrees with these commenters 

and believes that their recommended 

approach avoids recordkeeping burdens 

and affords OFCCP adequate records to 

ensure compliance. Therefore, OFCCP 

added a provision to section 60–1.12(a) 

of the final rule which requires 

contractors to maintain the following 

information from internal resume 

databases: ‘‘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 * * *.’’

Maly Consulting LLC was concerned 

that the proposed rule would require 

contractors to download and retain all 

resumes on a third-party resume 

database, whenever the contractor 

searched the database for potential 

applicants. OFCCP agrees that it would 

be unreasonable to require an employer 

to maintain a copy of every record on 

a third-party resume database. For 

example, Monster.com reported that as 

of January, 2005, it had over 41 million 

resumes in its resume database. 

Therefore, in the context of a third-party 

resume database, the final rule requires 

contractors to retain resumes only of job 

seekers who met the basic qualifications 

for the particular position who are 

considered by the contractor, and 

records identifying job seekers 

contacted regarding their interest in a 

particular position, along with 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. 

Section 60–1.12(c)(1)(ii): ‘‘Where 

possible, the gender, race, and ethnicity 

of each applicant (i.e., submissions that 

are not through the Internet and related 

electronic technologies) and Internet 

Applicant as defined in 41 CFR 60–1.3.’’

In the proposed rule, OFCCP added 

the term ‘‘Internet Applicant’’ into an 

existing provision of OFCCP regulations 

which requires contractors to identify 

‘‘where possible, the gender, race, and 

ethnicity of each applicant.’’ As 

discussed under Part 1 of the definition 

of Internet Applicant above, OFCCP 

modified this provision in the final rule 

to eliminate dual standards when the 

contractor accepts or considers 

expressions of interest submitted 

through either the Internet or traditional 

means for a particular position. Thus, 

under the final rule, the contractor must 

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.’’

Obligation To Solicit Race, Ethnicity 

and Gender Data 

Northern California and Silicon 

Valley Industry Liaison Group (NCILG) 

argued that neither UGESP nor existing 

OFCCP regulations required contractors 

to solicit or obtain race, ethnicity, and 

gender data and that OFCCP 

misinterpreted UGESP and existing 

OFCCP regulations by asserting such a 

requirement in the preamble of the 

proposed rule. NCILG further contended 

that UGESP and OFCCP’s existing 

regulations required only that 

contractors ‘‘maintain’’ race, ethnicity, 

and gender data, but there was no 

affirmative obligation to obtain or solicit 

such data. NCILG and Affirmative 

Action Partners, Inc. objected to any 

requirement that contractors solicit race, 

ethnicity, or gender information from 

applicants. 

OFCCP disagrees with these 

commenters. OFCCP historically has 

taken the position that contractors have 

some obligation to collect race, 

ethnicity, and gender information from 

applicants. OFCCP intends to make 

clear that, under the final rule, 

contractors are required to solicit race, 

ethnicity, and gender information from 

‘‘applicants’’ or ‘‘Internet Applicants,’’

whichever is applicable to the particular 

position. OFCCP intends this to be a 

mandate, not an option, because OFCCP 

requires this information to enforce E.O. 

11246, as discussed throughout this 

preamble. 

SHRM argued that requiring 

employers to collect race, ethnicity, and 

gender data from all Internet Applicants 

would impose significant burdens on 

employers. OFCCP disagrees that the 

final rule imposes significant burdens 

on contractors compared with existing 

recordkeeping requirements. The final 

rule draws an appropriate balance 

between, on the one hand, the need of 

OFCCP and the contractor for certain 

information and records to enforce and 

comply with E.O. 11246, and, on the 

other hand, the practical realities of 

Internet recruiting. 

Several commenters, including GBCS, 

NILG, and SIOP, expressed concern that 

the OFCCP proposal does not clearly 

identify the point in the employment 

process at which contractors are 

required to collect race, ethnicity and 

gender data. Under the final rule, 

contractors are required to solicit race, 

ethnicity, and gender data from all 

individuals who meet the definition of 

Internet Applicant. OFCCP does not 

mandate a specific time or point in the 

employment process that contractors 

must solicit this information, so long as 

the information is solicited from all 

Internet Applicants. 

Methods for Complying With the Rule 

Several commenters, including NILG, 

Thomas Houston Associates, Inc., and 

SHRM, expressed concern that the 

OFCCP proposal does not provide clear 

guidance on permissible methods for 

collecting race, ethnicity, and gender 

data. NCILG requested that OFCCP 

‘‘reaffirm’’ that contractors have no 

obligation to somehow obtain race, 

ethnicity or gender data from 

individuals who refuse to voluntarily 

disclose such information in response to 

the contractor’s solicitation. GBCS 

questioned whether contractors would 

be required to make a visual observation 

of individuals who refuse to voluntarily 

disclose race, ethnicity or gender 

information on a written solicitation 

58960 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

form. Nancy J. Purvis argued that 

contractors should be permitted to 

continue to use visual observation as a 

means of identifying the race, ethnicity 

and gender of applicants. SHRM 

recommended that employers be 

permitted to gather race, ethnicity, and 

gender data through either visual 

observation or self-identification. 

Affirmative Action Partners, Inc. (AAPI) 

offered several problems with collecting 

and maintaining race, ethnicity, and 

gender data on job applicants. In 

particular, AAPI noted that it does not 

promote EEO compliance to allow 

hiring managers to have access to 

candidates’ race, ethnicity, or gender. 

OFCCP agrees with these commenters 

that further clarification of these issues 

would promote compliance with 

applicant recordkeeping requirements. 

OFCCP recently issued a Policy 

Directive on this subject. See ADM 04–

1, ‘‘Contractor Data Tracking 

Responsibilities,’’ which is available on 

OFCCP’s Web site at http:// 

www.dol.gov/esa/regs/compliance/ 

ofccp/directives/dir265.htm. The 

Directive was prompted by the Office of 

Management and Budget’s (OMB) 1997 

Revision to the Standards for the 

Classification of Federal Data on Race 

and Ethnicity (62 FR 58782) and its 

Provisional Guidance on the 

Implementation of the 1997 Standards 

for Federal Data on Race and Ethnicity 

(2000). The OMB Standards and 

Provisional Guidance emphasize selfreporting or self-identification as the 

preferred method for collecting data on 

race and ethnicity. In situations where 

self-reporting is not practicable or 

feasible, observer information may be 

used to identify race and ethnicity. Prior 

to the 1997 Standards, the position of 

the Federal Government was that the 

preferred method of collecting race and 

ethnic data was visual observation and 

that self-reporting was not encouraged. 

OFCCP issued the Directive on 

Contractor Data Tracking 

Responsibilities to make OFCCP’s 

policy on collection of demographic 

information on applicants consistent 

with OMB’s 1997 Standards. The 

Directive is applicable to collection of 

race, ethnic and gender information 

about applicants under all of OFCCP’s 

regulations, including 41 CFR 60–

1.12(c) and 41 CFR Part 60–3. The 

Directive encourages contractors to use 

tear off sheets, post cards, or short forms 

to request demographic information 

from applicants. These methods can be 

adapted to electronic formats for 

recordkeeping regarding Internet 

Applicants. For example, some 

contractors have developed ‘‘electronic 

tear off sheets’’ for use with electronic 

applications that separate reported 

demographic information to be 

maintained for record keeping from 

electronic applications reviewed by 

employers. Other contractors have sent 

e-mails to individuals submitting 

electronic applications, requesting 

additional information necessary to 

process the application, including 

demographic information. The 

contractor’s invitation to an applicant to 

self-identify his or her race, ethnicity or 

gender is always to state that the 

provision of such information is 

voluntary. Visual observation may be 

used when the applicant appears in 

person and declines to self-identify his 

or her race, ethnicity or gender. 

Use of Labor Force Statistics and 

Census Data 

In the NPRM, OFCCP noted that it 

will ‘‘compare the proportion of women 

and minorities in the contractor’s 

relevant applicant pool with labor force 

statistics or other data on the percentage 

of women and minorities in the relevant 

labor force. If there is a significant 

difference between these figures, OFCCP 

will investigate further as to whether the 

contractor’s recruitment and hiring 

practices conform with E.O. 11246 

standards.’’

Several commenters, including EEAC, 

ORC, and the Chamber, expressed 

concern about OFCCP’s proposed use of 

labor force statistics and Census data 

under the proposed rule. ORC, Gaucher 

Associates, and the Chamber argued that 

Census and workforce data may not 

provide a valid basis for assessing 

contractors’ recruitment or hiring 

practices because these data do not 

reflect current labor market conditions 

or because the Census occupational 

categories are too general to provide 

accurate workforce data for specific 

jobs. ORC recommended that OFCCP 

should rely on each contractor’s own 

availability statistics as a basis for 

assessing the contractor’s recruitment 

and hiring practices. 

OFCCP disagrees with these 

commenters that appropriate Census 

and other labor market data are not 

reliable benchmarks for assessing 

contractors’ recruitment and hiring 

practices. As noted above, courts 

frequently approve of this type of data 

in recruitment and hiring 

discrimination cases under Title VII. 

OFCCP intends to use such data during 

compliance reviews to determine 

whether basic qualifications have an 

adverse impact on the basis of race, 

ethnicity, or gender. OFCCP does not 

agree that it should rely exclusively on 

availability data compiled by 

contractors, although OFCCP will 

generally consider such data. OFCCP 

must ensure that such data is accurate 

for compliance monitoring and 

enforcement purposes. 

The NCILG urged OFCCP to rescind 

the requirement that contractors 

conduct adverse impact analyses of 

their hiring practices. OFCCP believes 

such self-analyses are important steps 

for achieving and maintaining an equal 

opportunity workplace. Furthermore, 

the final rule relates to recordkeeping 

and solicitation of demographic 

information under section 60–1.12. 

Accordingly, this final rule would not 

be the appropriate vehicle for amending 

UGESP, even if the agency were 

inclined to do so. A commenter raised 

concerns about how OFCCP will 

interpret procedures regarding Internet 

Applicant recordkeeping under both 

section 1.12 and UGESP. OFCCP has 

addressed these concerns by adding a 

new regulatory provision, section 60–

1.12(d), to the final rule, as discussed 

above. 

ORC requested that OFCCP clarify 

what ‘‘significant difference’’ means and 

recommended that it be defined as two 

standard deviations or more. OFCCP 

agrees that the minimum standard for 

what is statistically significant is 

generally accepted to be two standard 

deviations, although the agency may 

allocate its investigative resources by 

focusing on larger statistical disparities 

or other factors, such as the size of the 

potential affected class. 

Effective Date 

Several commenters, such as EEAC 

and NILG, requested that contractors be 

afforded sufficient time to implement 

the new applicant recordkeeping 

standards to be promulgated in the final 

rule. These commenters noted that 

contractors will have to make significant 

changes in technology and personnel 

practices in order to implement the new 

requirements. For example, NILG 

asserted that ‘‘[f]or some companies, 

this will involve an extensive process of 

clarifying need, requesting information 

from possible vendors, seeking 

proposals from vendors, allowing a 

period for vendor evaluation, selection 

and subsequent company 

customization, implementation and 

system testing.’’

OFCCP agrees with these commenters 

that contractors should be afforded 

sufficient time to implement the 

recordkeeping requirements of the final 

rule. Therefore, OFCCP has established 

an effective date of one-hundred twenty 

days after the date of the publication of 

the final rule in the Federal Register. 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58961 

Regulatory Procedures 

Executive Order 12866 

The Department is issuing this final 

rule in conformance with Executive 

Order 12866. As noted in the preamble 

to the NPRM, this rule constitutes a 

‘‘significant regulatory action’’ within 

the meaning of Executive Order 12866 

(although not an economically 

significant regulatory action under the 

Order). As such, this rule is subject to 

review by the Office of Management and 

Budget (‘‘OMB’’). However, the 

Department has determined that this 

rule will not have an annual effect on 

the economy of $100 million or more, or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities. Therefore, the Department 

has concluded that this final rule is not 

‘‘economically significant’’ as defined in 

section 3(f)(1) of EO 12866. As a result, 

the cost-benefit analysis called for under 

section 6(a)(3)(C) of the Executive Order 

is not required. 

Congressional Review Act 

This regulation is not a major rule for 

purposes of the Congressional Review 

Act. 

Executive Order 13132 (Federalism) 

OFCCP has reviewed this rule in 

accordance with Executive Order 13132 

regarding federalism, and has 

determined that it does not have 

‘‘federalism implications.’’ The rule 

does not ‘‘have substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

Regulatory Flexibility Act 

As explained in the Proposed Rule, 

this final rule will not change, but 

instead will help to clarify, existing 

obligations for Federal contractors. 

Consequently, under the RFA, as 

amended, 5 U.S.C. 605(b), it is certified 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Unfunded Mandates Reform Act 

This final rule does not include any 

Federal mandate that may result in 

increased expenditures by state, local 

and tribal governments, or by the 

private sector, of $100,000,000 or more 

in any one year. 

Paperwork Reduction Act 

This final rule does not introduce any 

new information collection 

requirements. It simply clarifies existing 

requirements already approved by the 

Office of Management and Budget under 

the Paperwork Reduction Act of 1995. 

The information collection requirements 

for 41 CFR Part 60–1 are approved 

under OMB control numbers 1215–0072 

(Supply and Service) and 1215–0163 

(Construction). 

Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

The Department certifies that this 

final rule does not impose substantial 

direct compliance costs on Indian tribal 

governments. 

Executive Order 12988 (Civil Justice 

Reform) 

This final rule has been drafted and 

reviewed in accordance with Executive 

Order 12988, Civil Justice Reform, and 

will not unduly burden the Federal 

court system. The final rule has been 

written so as to minimize litigation and 

provide a clear legal standard for 

affected conduct, and has been reviewed 

carefully to eliminate drafting errors and 

ambiguities. 

List of Subjects in 41 CFR Part 60–1 

Administrative practice and 

procedure, Civil rights, Employment, 

Equal employment opportunity, 

Government contracts, Government 

procurement, Investigations, Reporting 

and recordkeeping requirements. 

Signed at Washington, DC, this 3rd day of 

October, 2005. 

Victoria A. Lipnic, 

Assistant Secretary for Employment 

Standards. 

Charles E. James, Sr., 

Deputy Assistant Secretary for Federal 

Contract Compliance. 

■ Accordingly, part 60–1 of Title 41 of 

the Code of Federal Regulations is 

amended as follows: 

PART 60–1—OBLIGATIONS OF 

CONTRACTORS AND 

SUBCONTRACTORS 

■ 1. The authority citation for part 60–

1 continues to read as follows: 

Authority: Section 201, E.O. 11246, 30 FR 

12319, 3 CFR, 1964–1965 Comp., p. 399, as 

amended by E.O. 11375, 32 FR 14303, 3 CFR, 

1966–1970 Comp., p. 684, E.O. 12086, 43 FR 

46501, 3 CFR, 1978 Comp., p. 230 and E.O. 

13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 

258. 

■ 2. In § 60–1.3, a new definition is 

added below ‘‘government contract’’

and above ‘‘minority group’’ to read as 

follows: 

§ 60–1.3 Definitions. 

* * * * * 

Internet Applicant. (1) Internet 

Applicant means any individual as to 

whom the following four criteria are 

satisfied: 

(i) The individual submits an 

expression of interest in employment 

through the Internet or related 

electronic data technologies; 

(ii) The contractor considers the 

individual for employment in a 

particular position; 

(iii) The individual’s expression of 

interest indicates the individual 

possesses the basic qualifications for the 

position; and, 

(iv) The 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. 

(2) For purposes of paragraph (1)(i) of 

this definition, ‘‘submits an expression 

of interest in employment through the 

Internet or related electronic data 

technologies,’’ includes all expressions 

of interest, regardless of the means or 

manner in which the expression of 

interest is made, if the contractor 

considers expressions of interest made 

through the Internet or related 

electronic data technologies in the 

recruiting or selection processes for that 

particular position. 

(i) Example A: Contractor A posts on its 

web site an opening for a Mechanical 

Engineer position and encourages potential 

applicants to complete an on-line profile if 

they are interested in being considered for 

that position. The web site also advises 

potential applicants that they can send a hard 

copy resume to the HR Manager with a cover 

letter identifying the position for which they 

would like to be considered. Because 

Contractor A considers both Internet and 

traditional expressions of interest for the 

Mechanical Engineer position, both the 

individuals who completed a personal profile 

and those who sent a paper resume and cover 

letter to Contractor A meet this part of the 

definition of Internet Applicant for this 

position. 

(ii) Example B: Contractor B posts on its 

web site an opening for the Accountant II 

position and encourages potential applicants 

to complete an on-line profile if they are 

interested in being considered for that 

position. Contractor B also receives a large 

number of unsolicited paper resumes in the 

mail each year. Contractor B scans these 

paper resumes into an internal resume 

database that also includes all the on-line 

profiles that individuals completed for 

various jobs (including possibly for the 

Accountant II position) throughout the year. 

To find potential applicants for the 

58962 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

Accountant II position, Contractor B searches 

the internal resume database for individuals 

who have the basic qualifications for the 

Accountant II position. Because Contractor B 

considers both Internet and traditional 

expressions of interest for the Accountant II 

position, both the individuals who 

completed a personal profile and those who 

sent a paper resume and cover letter to the 

employer meet this part of the definition of 

Internet Applicant for this position. 

(iii) Example C: Contractor C advertises for 

Mechanics in a local newspaper and instructs 

interested candidates to mail their resumes to 

the employer’s address. Walk-in applications 

also are permitted. Contractor C considers 

only paper resumes and application forms for 

the Mechanic position, therefore no 

individual meets this part of the definition of 

an Internet Applicant for this position. 

(3) 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. 

(4) For purposes of paragraph (1)(iii) 

of this definition, ‘‘basic qualifications’’

means qualifications—

(i)(A) That the contractor advertises 

(e.g., posts on its web site a description 

of the job and the qualifications 

involved) to potential applicants that 

they must possess in order to be 

considered for the position, or 

(B) For which the contractor 

establishes criteria in advance by 

making and maintaining a record of 

such qualifications for the position prior 

to considering any expression of interest 

for that particular position if the 

contractor does not advertise for the 

position but instead uses an alternative 

device to find individuals for 

consideration (e.g., through an external 

resume database), and 

(ii) That meet all of the following 

three conditions: 

(A) The qualifications must be 

noncomparative features of a job seeker. 

For example, a qualification of three 

years’ experience in a particular 

position is a noncomparative 

qualification; a qualification that an 

individual have one of the top five 

number of years’ experience among a 

pool of job seekers is a comparative 

qualification. 

(B) The qualifications must be 

objective; they do not depend on the 

contractor’s subjective judgment. For 

example, ‘‘a Bachelor’s degree in 

Accounting’’ is objective, while ‘‘a 

technical degree from a good school’’ is 

not. A basic qualification is objective if 

a third-party, with the contractor’s 

technical knowledge, would be able to 

evaluate whether the job seeker 

possesses the qualification without 

more information about the contractor’s 

judgment. 

(C) The qualifications must be 

relevant to performance of the particular 

position and enable the contractor to 

accomplish business-related goals. 

(5) For purposes of paragraph (1)(iv) 

of this definition, 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. 

* * * * * 

■ 3. In § 60–1.12: 

■ A. The third sentence in paragraph (a) 

is revised; 

■ B. Paragraph (c)(1)(ii) is revised; 

■ C. Paragraph (e) is removed; 

■ D. Paragraph (d) is redesignated as 

paragraph (e); and 

■ E. A new paragraph (d) is added. 

The revisions and addition read as 

follows: 

§ 60–1.12 Record retention. 

(a) General requirements. * * * Such 

records include, but are not necessarily 

limited to, records pertaining to hiring, 

assignment, promotion, demotion, 

transfer, lay off or termination, rates of 

pay or other terms of compensation, and 

selection for training or apprenticeship, 

and other records having to do with 

requests for reasonable accommodation, 

the results of any physical examination, 

job advertisements and postings, 

applications, resumes, 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 

particular position, such as on-line 

resumes or internal resume databases, 

records identifying job seekers 

contacted regarding their interest in a 

particular position (for purposes of 

recordkeeping 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; 

for purposes of recordkeeping 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), regardless 

of whether the individual qualifies as an 

Internet Applicant under 41 CFR 60–

1.3, tests and test results, and interview 

notes. * * * 

* * * * * 

(c) * * * 

(1) * * * 

(ii) 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. 

* * * * * 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58963 

(d) Adverse impact evaluations. 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, as defined in 41 CFR 60–

1.3, and those records relating to the 

analyses of the impact of employment 

tests that are used as employee selection 

procedures, without regard to whether 

the tests were administered to Internet 

Applicants, as defined in 41 CFR 60–

1.3. 

* * * * * 

[FR Doc. 05–20176 Filed 10–6–05; 8:45 am] 

BILLING CODE 4510–CM–P