Part 1 of this article focused on the important role that "disposition codes" play in the employer's ability to perform its own meaningful adverse impact analyses and the employer's ability to defend an allegation of discrimination/demand for back pay based on the OFCCP's analyses of the data it provides…that is, the importance of Counting the Right Numbers.

In my experience, most disposition codes do a fairly good job of disclosing when each individual fell out of the process. That is probably because the systems many employers currently are using are built out of an original Applicant Tracking System (ATS). In fact, in the "Ask the Experts" online forum of LocalJobNetwork.com, we still see questions about discrimination analyses that refer to "our ATS" – which ought to be a misnomer but which often is not.

Decades ago, these systems were marketed to assist in time management of recruitment and selection. The original ATS was concerned with how many days it took to fill requisitions – including how long applications sat in Ray Recruiter's inbox and how many times Helen Hiring Manager re-scheduled her interviews. So, the most basic ATS typically can tell us when an individual fell out of the process, at least pre- or post-interview, post-offer, etc. That's somewhat relevant to counting the right numbers – provided that the "when" also includes some content.

Discrimination analyses are not about "tracking" applicants! Statistical discrimination analyses must be about the employer's denial of an opportunity as well as whether the denial was unlawful. If the statistical analysis shows a disproportionate number of women or Asians, etc. was not selected, the law presumes this was because of sex or race. To rebut this presumption, the burden is on the employer to demonstrate its reason was lawful. If not gender, if not race, why?

As promised in Part I, Part II of this article focuses on some examples of disposition codes that have sufficient content to disclose why an individual was excluded, including reasons that have nothing to do with either the employer's "denial" of the job, or nothing to do with its assessment of qualifications. Because not counting the wrong numbers is critical to Counting the Right Numbers.

Exemplars of Some Disposition Codes

First of all, disposition codes must be customized by each employer. I've tried to include in this list disposition codes that the reader might need to tailor only slightly to your organization as well as some that will clearly not work, e.g., some applicable only to higher education, some relevant only where there is a union, etc. But they should provide food for some creative thinking. No one could possibly design good disposition codes unless they knew a great deal about the organization structure, culture, selection process, pay policies, etc.
 

1. HR Review of Application/Resume with NO ASSESSMENT of Qualifications (NA means Not an Applicant and NIA means Not an Internet Applicant. For government contractors, persons who aren't "Internet Applicants" includes those in my list of exemplars that are labeled NA because none of these job seekers were "considered for a particular job.")
   
   NA – Didn't follow rule for submission – late or incomplete
   NA – Didn't follow rule – did not seek specific open position
   NA – Didn't follow rule as current employee/time in job¹
   NA – Not legal to work in U.S. – sponsorship not available in this job
   NA – Not legal to work in U.S. – requires sponsorship – quotas filled
   NA – Not legal to hire – under minimum age
   NA – Not legal to hire – non-citizen²
   NA – Not legal to hire – no state license³
   NA – Not legal to hire – state law⁴
   NA – Withdrew prior to interview – explicit (person stated he/she was no longer interested)
   NA – Withdrew prior to interview – implicit⁵ (person was unresponsive to two attempts to contact, untimely response, or did not show for interview)
   NA – Withdrew prior to interview – no meeting of the minds re: salary (if you ask for expected salary on the application)
   NA – Withdrew prior to interview – no meeting of the minds re: start date (often a problem with students not yet graduated) or hours of work (this could include shift, overtime, weekends – which you will only know if you ask this on the application)
   NA – Withdrew prior to interview – no meeting of the minds re: business travel or other working condition
   NA – Not considered – Sufficient numbers of applicants already in process
   NA – Not considered – Chose internal applicant before considering externals
   NA – Not considered – Application/resume is unintelligible
    
   Compliance Guidance: I strongly urge these three italicized codes be included in any employer's schedule of codes. These are very common circumstances and only rarely have I seen employers prepared with such disposition codes – which means the ones that were used in these circumstances are always untrue.
   
   Some/many of these codes would be unnecessary/duplicative if the employer included its "rules" and/or more specifics of the job in the advertising of the "particular position." Those employers who may not – or choose not to – inquire about pay history could obviate some problems of contradictory expectations if they disclosed the likely starting salary range in the ad so as – hopefully – to discourage expressions of interest from people whose expectations are incompatible with the employers' budgets and/or pay policies.
   
   I strongly recommend that an employer not "consider" a person for a job s/he didn't express interest in. You may "recruit" a job seeker by inviting him or her to apply – in accordance with your usual protocols. You may not "move him to the other requisition" – unless you move everyone, in which case you will disposition everyone for both requisitions. To move one or some is to make a selection decision about all. Don't do it. Just don't.
   
   Consistency is essential so be sure everyone understands that this is not "guidance" but a requirement. If the organization has a rule, every selecting official must apply it universally. I've looked very carefully and there is no dispensation in Federal law for higher education – or for Vice Presidents of this or that!


2. HR Review of Application/Resume -- Administrative
   
   Rejected – Not eligible for re-hire (attendance)
   Rejected – Not eligible for re-hire (terminated for cause)
   Rejected – Not eligible for re-hire (performance)
   Rejected – Not eligible for re-hire (multiple re-hires)
   Rejected – Current employee – attendance
   Rejected – Current employee – performance
   Rejected – Abuse of selection process⁶


3. Initial Review of Application/Basic Qualifications and Other Minimum Qualifications (NIA means Not an Internet Applicant)
   NIA – No basic qualification – education/type
   NIA – No basic qualification – education/amount or degree
   NIA – No basic qualification – education/certification
   NIA – No basic qualification – education/license
   NIA – No basic qualification – experience/relevant
   NIA – No basic qualification – experience/amount
   NIA – No basic qualification – PC skills not as described in advertisement
   NIA – No basic qualification – ____________ skills not as described in advertisement
   NIA – No basic qualification – no demonstrated ability to ___________ as described in advertisement
   NIA – No basic qualification – no 2nd language fluency
   NIA – No basic qualification – no demonstrated accomplishments in revenue production
   NIA – No basic qualification – not bondable
   NIA – No basic qualification – xxxxx
    
   Compliance Guidance: Use "No BQ" Code(s) only where the BQs used were established in advance of reviewing anyone's qualifications and were advertised for the particular position. Be aware that if a "basic qualification" itself adversely impacts minorities or women – particularly if it is generally known to disproportionately exclude, the contractor may nevertheless be challenged by the OFCCP even if there is not "adverse impact" against minorities or women who are "Internet Applicants." And the EEOC and other enforcement agencies surely will challenge and are not bound by the OFCCP's interpretation of "Applicant/Internet Applicant." It is particularly difficult to defend to any agency those education requirements that are not on their face not job related. That would include not "high school graduate or GED" especially for unskilled jobs but would also include "Bachelor's Degree" without specifying a major or discipline that is demonstrably related to the particular job in question. Remember you must be prepared to justify whenever there is adverse impact. You may find it difficult to justify why a college degree – in anything -- is job related to being an FLSA-exempt employee -- in any job. Similarly, and notwithstanding that Higher Education's "products" are degrees, a university may find it difficult to justify to an enforcement agency that a Master's degree is required to be a Manager.
   
   Rejected – Pursuant to Collective Bargain Agreement with AAA (e.g., this could mean not senior or not "senior qualified")
   Rejected – Pursuant to Collective Bargaining Agreement with BBB
   Rejected – Either no prior work history or cannot determine prior work history
   Rejected – Did not provide sufficient information to verify past employment
   Rejected – Unsatisfactory work history – periods of unexplained unemployment
   Rejected – Unsatisfactory work history – terminated for cause
   Rejected – Terminated with less than 90 days from similar job/working conditions
   Rejected – Unsatisfactory work history – job hopping
   Rejected – Unsatisfactory work history – reasons for leaving
    
   Compliance Guidance: I rarely see "employment history" coded separately and yet, in my experience, it is a frequent reason for non-selection. It's almost always very subjective and, while a perfectly legitimate concern for a prospective employer, what is acceptable or not acceptable is rarely defined and may vary widely from recruiter to recruiter. It is particularly difficult to nail down years after the fact and possibly years after the recruiter has moved on. I encourage you to come to grips with this reality in your recruiting team. Obviously, they are using this information to predict whether an individual will be a "stable," long-employed person. Find out if there is any consistency among them in the interpretations of such past behavior and make a strong effort to develop disposition codes that reflect their specific rationale, and to aim for uniformity and consistency in their use.
   
   Rejected – Experience not directly related
   Rejected – Experience not most recent
   Rejected – Experience is repetitive – no progression in KSAs
   Rejected – No demonstrated ability to lift ___ pounds
   Rejected – No demonstrated ability to _____________ (specify)
   Rejected – Not as qualified – amount of experience
   Rejected – Not as qualified – type of experience/type of employer
   Rejected – Not as qualified – skills
   Rejected – Not as qualified – education
   Rejected – Not as qualified – no current required license
   Rejected – Failed standardized test (specify)
   Rejected – Failed job sample test (specify)
   Rejected – Test ranking not competitive with others
   Rejected – Job related conviction


4. Interview(s)⁷
   
   Rejected – Telephone interview – failed to confirm qualifications on application/resumé
   Rejected – Telephone interview – interpersonal or communication skills
   Rejected – Telephone interview – unprofessional demeanor
   Rejected – Telephone interview – not best match for job/work unit
   Rejected – Telephone interview – lacks sufficient interest/commitment to job sought
   Rejected – Interview failed to confirm qualifications on application
   Rejected – Interviewed – interpersonal or communication skills
   Rejected – Interviewed – unprofessional dress/demeanor
   Rejected – Interviewed – not best match for job/work unit^
   Rejected – Interviewed – lacks sufficient interest/commitment to job sought
   
   Note: The ones below are especially for Higher Education/Faculty Selections although the starred one below might work well for other kinds of organizations and many other sorts of jobs.
   
   ^These possible disposition codes probably reflect the authentic reason most qualified people don't get an offer. Still, I urge caution in using words like "fit" or "not best match," although I'd still rather have that code used if that's the real basis for the rejection! However, the selecting official should be required to contemporaneously document what the nondiscriminatory "fit" or "match" issue is. Too often that used to be code for "doesn't look like us." But it may truly mean that although a particular applicant is very well qualified s/he isn't a "fit" because s/he doesn't bring anything new to the work group. To the extent that KSAs (Knowledge/Skill/Ability) are duplicated, the employer may justifiably prefer one who's perhaps not quite "as qualified," but who would bring to the work group a skill, experience or perspective that would be unique. There may also be "personality" issues such as mixing "team players" and "individual contributors." Whether avoiding that is for good or ill is a judgment, but as long as it isn't masking unlawful bias, it's the manager's prerogative. Which is, perhaps, an appropriate place for me to state that it is not my intent here to endorse any particular reason for rejection. These codes reflect the "why not selected" reasons I have observed in a variety of employment environments. I urge only that disposition codes show the actual basis for the employer's decision – that should be the "content" of any disposition code. Presumably none will be patently discriminatory. They will permit the employer to discover whether any – and which – result in a disproportionate exclusion of a particular group. Such a finding ought to prompt further investigation by the employer.
   
   Rejected – Offsite interview – failed to confirm qualifications on application
   Rejected – No established scholarly reputation
   Rejected – Publications inadequate
   Rejected – Offsite interview – interpersonal or communication skills
   Rejected – Offsite interview – unprofessional dress/demeanor
   Rejected – Offsite interview – not best match for job/work unit
   Rejected – Offsite interview – lacks sufficient interest/commitment to job sought
   Rejected – Search Committee interview – failed to confirm qualifications on application
   Rejected – Search Committee interview – interpersonal or communication skills
   Rejected – Search Committee interview – unprofessional dress/demeanor
   Rejected – Search Committee interview – not best match for job/work unit
   Rejected – Search Committee interview – lacks sufficient interest/commitment to job sought*
   Rejected – Search Committee area of specialization overlaps others in department*
   Rejected – On campus instructional demonstration not up to expectations
   Rejected – Department Head interview – lack of institutional or departmental fit^
   Rejected – Department Head interview – another applicant better match^


5. Post Interview
   
   NA – Withdrew after interview – no meeting of the mind re start date or hours of work
   NA – Withdrew after interview – no meeting of the minds re other terms/conditions
   NA – Withdrew after interview – failed to provide additional requested documentation/transcript/references
   Rejected – Unable to confirm work experience/references
   Rejected – Unsatisfactory work references
   Rejected – Failed background check
   Rejected – After acquired evidence of falsification of application/resume/interview
   Rejected – Failed drug screen


6. Selected
   
   Selected – Declined offer
   Selected – Failed physical examination/after consultation, no reasonable accommodation
   Selected – Failed to produce satisfactory I9 documentation
   Selected – No show to work
   Selected – Accepted and placed in Job
   Selected – Will be transferred in coordination between departments
    
   Compliance Guidance: These disposition codes are designed to code persons who were selected and rejected based on a particular qualification for a particular open position. When a person passes through all the selection process and the employer makes an offer, that person was selected by the employer, not rejected. Whether that "selection" resulted in a declined offer, a hire, a promotion, or even a demotion is irrelevant to the analysis of adverse impact; it is a payroll consequence only. Physical (medical) examinations are not "tests" pursuant to The Uniform Guidelines on Employee Selection Procedures. While, of course, a contractor must document its consideration of a reasonable accommodation and if one is not possible, the applicant will not be hired/promoted, and the contractor may have to defend that decision. However, the agency's request for applicant and selection data in Item 18 deals exclusively with Executive Order compliance. Therefore, since no physical exam can be conducted prior to a job offer, the contractor has, ipso facto, "selected" the individual with a disability insofar as its assessment of "qualifications;" its "tests." Such an applicant and such a selectee belong in an adverse impact analysis of race/ethnicity and gender. Once again, evidence that the payroll consequence of someone actually starting work has nothing to do with an analysis of whether the employer rejected him or her based on an assessment of "qualifications."

A Note on Other Record Keeping/Coding Issues

Non-competitive selections such as "in line" promotions or elevations in pay or classification level purely as a result of "time in grade" are properly the subject of another article – though I am compelled to add that they should never be analyzed in combination with competitive applicant pools for competitive promotions.
 
However, I have never seen an electronic system handle other sorts of non-competitive selections which may occur infrequently and are truly quite different than any of the selections we've "disposed of" above.

"Finding a job for" a spouse or domestic partner happens rather often in higher education but as the labor market shrinks, other employers may also find that in order to hire one, they also have to hire the other. Sometimes an employer "makes a place" for an employee whose job has been eliminated elsewhere or who had to relocate to another of its establishments for some significant personal or health reason. If such an employee competes for a vacant position, s/he would be handled in the normal way, but if s/he wasn't required to compete, I urge employers to develop disposition codes for such circumstances. Other circumstances for which one might need additional codes – remember, our goal is to tell it like it really was – are situations where an individual is entitled to return to a job; for example, from the military or FMLA leave, or as part of the settlement of a lawsuit or grievance.

When mergers and acquisitions are so common, employers need also a way to recognize any contractual obligations of the sale that provide employment opportunities for only the employees of the acquired company – or some of them.

Clearly, none of the placements so described should be included in any statistical analysis. In an abundance of rigor, you might "report" them to the OFCCP when reviewed or pursuant to a Conciliation Agreement, but they are never to be "counted" as selections in an analysis that includes other "applicants" when in fact there weren't any. Also, never report them as if they were "single applicant hires" – please don't do that!

You could consider disposition codes like this:

Non-competitive placement – contractual
Non-competitive placement – return from leave
Non-competitive placement – displaced employee

Even for a "born sorter" this looks like a great many disposition codes. And even these are by no means perfect, universally appropriate, nor necessarily exhaustive. But they are intended to stimulate your thoughts about ways your organization might design disposition codes that reflect its own methods and reasons for selection/rejection. May all your blue beads find a box!

Conclusion

Think of your selection process as a large funnel with many more people entering the process than are "successful" coming out of the process. In Part I of this article, I discussed the strategic advantage to employers of managing just how many people enter the "funnel" (i.e. are "considered") and the many advantages to employers/contractors for providing enough "boxes" to sort the multiple reasons why any individual might not have been selected at the end.

A final observation: I've noticed that many contractors have more detailed disposition codes at the end of the process than at the beginning. Practically everyone has a code for failing the drug screen or failing background check for example. There are often as many or more codes covering those who are interviewed by the hiring manager as there are for those who don't make it that far. The same employers with such detailed codes for the ending of the funnel very often have much less detail for the mouth of the selection funnel, the start of the process. But it is at the beginning where most "denials of opportunity" occur and where the employer is, consequently, the most vulnerable to challenge because the numbers involved are a quantum more likely to show "adverse impact." You may have gotten it backwards! Invest the most effort and specificity of content when dispositioning the greatest number of job seekers and of applicants!

A final suggestion: for the same reason – that is, "Big Numbers" and smaller ones – I urge you to use your most valid, most demonstrably job-related selection criterion earliest in the process. If an applicant might be rejected on more than one basis (i.e., education, experience, work history, license, or "fit") it just makes sense to use the disposition code that is the most easily defended – which will often (though not always) be the one that is the most "objective" rather than "subjective." I would go so far as to suggest (people being after all human) that your most "objective" reasons for rejection at each stage of the process be higher on the list of possible disposition codes than the more subjective ones such as "work history" (which I distinguish from "experience") codes or "fit."

Train your recruiters/application reviewers to think defensively. Dispositioning each job seeker is not just something that the EEO Director dreamed up to annoy them. It's an important part of their jobs and has the potential to save – or cost – their employer millions of dollars.

This publication is written to give general information on the subjects covered. Nothing in the article, Parts I and II, is intended nor should be construed as legal advice or as a substitute for any professional advice about your organization's particular circumstances. Readers should consult competent counsel or other professional services with regard to how the matters discussed might relate to their own affairs or to resolve specific problems or questions. If you have questions about this article you may email me at ellenshong@aol.com. Copyright © 2018 Ellen Shong Bergman, LLC

<sup>1. This does not cover the situation where the employee’s job performance is the reason for rejection. Such an assessment of performance amounts to “consideration” and the individual is thus an “applicant”. On the other hand, if the employer has a rule that, for example, an employee may have no more than three applications in play at any one time or that an employee must be in his/her current position for at least six months before applying, a jobseeker in that situation didn’t follow your rules and is, thus, not an applicant.

2. This applies only to those circumstances where the employer has positions which require a government security clearance. If the employer does, it probably needs this disposition code as well as the “not legal to work in U.S” disposition code.

3. Lack of a license as a “not legal to hire/not an applicant or “no BQ/Internet Applicant” code can be used only where the employer does not/is not permitted to hire an individual who does not possess a current license for his/her profession. If, however, the employer hires into such jobs provisionally (such as prior to passing the Bar Exam or prior to passing the State Nursing Boards) then not possessing a current license is a qualification just the same as experience or education. A person who doesn’t have a current license is an applicant/Internet Applicant but – unless s/he withdraws – may not be a qualified applicant/Internet Applicant for some other reason or may be one who is “not as qualified” as a person with a current license.

4. For example, there’s been a prohibition in SC prohibiting any state agency from offering employment to any individual who is in arrears in repaying student loans. Pennsylvania required, and may still require, the certification of faculty as fluent in the English language. Where it would be a violation of law to hire an individual, that individual is not an “applicant” since no assessment of his/her qualifications has (should have) occurred.

5. OFCCP regulations require “repeated efforts” to contact a jobseeker before the employer may conclude that s/he has implicitly expressed a lack of further interest. “Repeated” means twice. You must make two attempts to contact (phone or email) before categorizing the jobseeker as having withdrawn/not an applicant.

6. This is intended to distinguish the job seeker who is truly problematic/pathological; who, for example, applies for dozens of jobs at a time (because you don’t have a rule prohibiting that), who is repeatedly rejected for jobs because s/he isn’t “legal to hire,” and/or who is abusive (documented) in his or her treatment of your employees.

7. As with review of applications/resumes, HR and one or more Selecting Officials may each conduct assessment interviews. Particularly if HR will not refer anyone who does not “pass” the HR interview, it may be necessary to establish separate disposition codes for the initial and subsequent multiple/sequential interviews – some of which I have provided for here. Keep in mind, from among this long list of disposition codes, the rater is only going to have to choose from among the handful that might apply to the individual at the point in the selection process at which the rater is recording his/her rationale.</sup>