Does your ATS know about EEO?
Applicant tracking systems (ATS) have been a solution to some major headaches for those involved in recruiting. While the ability to post a job listing online has expanded employers' reach, it also came with a sometimes overwhelming amount of applications. The deluge can be crushing, but ATS have helped many thin the herd.
ATS can weed out unqualified candidates, allowing recruiters to focus resources on talent worthy of an interview. But they also can lead employers afoul of nondiscrimination laws. It's therefore quite important for HR to consider the implications of machine screening on equal employment opportunity (EEO) law compliance.
Garbage in, garbage out
Most applicant trackers allow you to set minimum qualification requirements: years’ experience, degree, valid driver’s license, etc. When these qualifications are used as a basis to screen out candidates, they must have a true business reason.
"An ATS may seem like an easy way to save time and money in the recruitment process," Bryan Lazarski of Lazarski Law told HR Dive via email, "but it also requires ongoing evaluation and adjustment both for the company's practical needs and, importantly, to ensure compliance with discrimination laws." Even seemingly valid qualifications can sometimes have a disparate impact on protected groups. Business must periodically review the system to look at who is being rejected, and if there are legitimate, non-discriminatory reasons for the exclusion.
When plaintiffs' lawyers evaluate a potential class action, the first level of analysis is whether the employer has some uniform "policy or practice" that would lend itself to class treatment, Lazarski said; "The system of algorithms and protocols employers use with an ATS can itself provide such a policy or practice."
No platform, no matter how sophisticated, is better than the data input. If your vetting process is flawed, so will be your results. In the event of a charge or an audit, you'll need to defend any data entered into the ATS as necessary for the position.
Another concern may be system access: Recruiters who use your ATS must be trained to enter criteria appropriately.
Considerations for federal contractors
If your business has any federal contracts, you many have additional reporting and recordkeeping requirements. The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) sets specific guidelines that outline the difference between an "applicant" and an "internet applicant;" how non-selection criteria must be created and captured; and what records must be maintained.
"Having an ATS can facilitate compliance in that it can ensure quick, easy access to information that the OFCCP requires contractors to maintain and provide upon request," Janette Levey Frisch, founder and principal attorney at the Law Office of Janette Levey Frisch, told HR Dive via email. This can enable contractors to track their efforts and hopefully show OFCCP that they are compliant with their affirmative action obligations.
But an ATS on its own, she warned, doesn’t ensure compliance. If anyone can access the system, it’s not uncommon for information to be changed or deleted, skewing results or reports.
For contractors drowning in applications, guidelines can help. Some choose to set firm opening and closing dates to apply. Actions like this must be done consistently, however, to ensure you’re not filtering applicants for some positions but not others. And if applicants that continue to apply past the closing date, they still could be considered valid under the internet applicant rule and skew the data, rendering an adverse impact analysis inaccurate, she noted.
Applicant flow logs must be generated for every opening, and they must contain all the necessary data to demonstrate that no adverse impact has occurred. Employers who use an ATS may be able to automate this data and the reports, depending on the system they utilize.
Levey Frisch warns, however, that "as with any electronic program, the ATS is only as accurate and reliable as the people using it." HR must limit access and use the disposition codes that screen out unqualified candidates correctly and consistently.
Results — not intent
"It is important to remember that generally for a discrimination claim based on disparate impact, intent to discriminate is not necessary," said Lazarski.
An unintentionally discriminatory policy or practice can land an employer in as much hot water as an intentional one. "For example, if an employer is screening with an ATS for a college major that did not exist twenty years ago (i.e. certain Data Science, Machine Learning, or User Experience Design majors)," he said, "the unintentional impact could be to screen out older workers and give grounds for an age discrimination class action."
And wherever algorithms are concerned, someone will find a way around them. For those who "adjust" their resume to fit the requirements of a job, ATS can only do so much. Lazarski warns that screening could deliver the candidates best at writing an ATS-optimized resume, rather than the best candidates. "And returning to the class action avoidance point," he says, "due caution requires not only monitoring your own algorithms but what practices applicants are using to 'optimize' their applications and whether the combined results raise discriminatory impact issues."
Overall, an ATS may still be a useful tool for efficiency, "but employers must be aware of the potential problems if they do not actively monitor and adjust their systems to ensure they are not walking into a litigation trap," Lazarski said.
Vetting a system
When considering an ATS, make sure the platform has the record-keeping requirements you need, the experts said.
For example, affirmative action look-back can be up to two years. OFCCP also can examine records moving forward if they suspect or uncover a violation. Make sure your ATS provides reporting features that let you capture the data you need to generate the forms and reports the government requires.
Finally, an ATS can capture and store data to provide an affirmative defense in the event of a claim. As long as you provide the right tools for the system, the benefit of valid ATS data can be immeasurable.
The key to getting it right, it seems, is asking the right questions — both of vendors and applicants.
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