Monday, February 27, 2012

Is Your Applicant Tracking System (ATS) or Resume Scanner Legal?

Recent highlights from the EEOC are not for the naïve or ???.  2012EEOC Hiring Issues  report notes that the EEOC recently held a series of meetings to examine the impact of certain hiring practices on protected groups….. Recent commission-initiated litigation also indicates this issue will remain among the forefront of the EEOC's systemic litigation agenda," …

To comply with certain federal applicant tracking requirements many companies determined the most cost effective process was an ATS (Applicant Tracking System).  Even small employers can access one now.
An ATS also contains the ability to scan resumes for key words and phrases, the employment application and self- identification of sex, race, veteran status, handicap, etc.   The ATS is usually the first candidate-company interaction ….but…. the most impersonal, unforgiving and possibly the most prejudicial format ever utilized.

An ATS may help comply with legal requirements; however, the ATS has also eliminated the human cognitive ability to compare, reason and interpret a resume’s contents.  ATS have a number of very serious flaws leading to potentially illegal recruiting presumptives.   Boomers used to call it GIGO – garbage in garbage out.
A job description may be used to set up the key words and phrases the ATS program uses to scan resumes, however, most large ATS do this automatically.  Unless the correct key words and phrases fields are populated (entered), the resume scanning results will be biased and inaccurate resulting in un- or under-qualified applicants!

Company and industry cultures develop their own unique sets of descriptive words, acronyms and phrases.  If a  job description or your ATS uses key words like: analyst instead of engineer; create instead of design; HR instead of People or Talent (or vice versa); international vs. global; die not  dye or… any list of functions without cross over synonymous key words or phrases,  most qualified people will NEVER pass through and be selected for interviews. 
Furthermore, most company ATS stop looking (scanning) when a predetermined number (e.g. 20) of “qualified” resumes are attained - “garbage in (definition) and the garbage out (un- or under- qualified candidates)”.

This impersonal and GIGO effect is also a big part of the “Black Hole” I and everyone, including employers, talk about.  However, there may be a more serious problem.  How you manage your ATS may be blatantly illegal!
If the job board, career site, social network or sourcing methodology disproportionately excludes qualified candidates, experience and/or entire classes of candidates, protected or not, discrimination is at work.  Unless bonifide occupational qualifications (BFOQ) exist for these errors your company’s ATS excludes and discriminates. 

Regardless of your AAP (Plan) or AAS (statement) if your ATS is excluding, unintentionally or on purpose, you are excluding and discriminating.  This affects the company’s brand reputation and company profitability!  But, Wait…There’s More!  This is potentially a BIG expensive legal problem!
Each ATS user is responsible for their system’s parameters, definitions, descriptions and results!  The same questions and statements can be said of outside recruiter’s and recruitment firm’s (RPOs) methodology. 

Just because these tools are used and their use expanding does not mean they are being used legally.  Just because there have been no suits, judgments or precedents (yet) doesn’t mean these tools are not biased and discriminatory.  What liability does the ATS supplier carry?
Software lacks the ability to compare, reason and interpret what isn’t stated or implied.  Do you know if what your company is doing is legal??? Is your lack of oversight jeopardizing your firm, company or client?

We are seeing rumblings (candidates) and EEOC/DOL investigations following 8-10 years of legal non-enforcement.  Determining the bias, exclusion and discrimination effect of technology is only a matter of time.   Both federal departments and private employment law practices are just now starting to look because of the perceived discrimination against mature (protected) and unemployed workers (I believe soon to be protected or incentivized for hire).

5 comments:

  1. Good information provide about applicant tracking system...
    Applicant Tracking System

    ReplyDelete
  2. This is a great point about ATS systems that do keyword scanning/matching, unfortunately you are lumping all ATS systems together based on an idea of how some of them work. I have always been against keyword scanning and matching, because they are inherently prone to problems. One of those problems is the one you mentioned, where the internal keywords used in the ad don’t match the externally accepted keywords that appear on a person’s resume. The other issue is that applicants who are smart will improve their rankings by stuffing their resumes with keywords that match the wording used in the ad, thus creating a false positive match in the system by ranking candidates high simply because they learned to game the system.
    The better way to accomplish the goal of screening applicants is to use direct filter questions based on the minimum qualifications for the job. This ensures that the process and data is the same for all applicants, while at the same time not having the potential for a keyword issue creating potential discrimination problems.
    Check out the ApplicantPRO Applicant Screening Dashboard. We don’t use keyword scanning, we instead use filter questions that should be much less likely to cause the potential legal issues you described above.

    ReplyDelete
    Replies
    1. @Applicant Tracking: And how exactly are the answers to your filter questions interpreted, by a human or ATS? If by humans, how does that save companies money which is one of the purposes of purchasing ATS software? If by ATS why would that not be prone to some of the errors described in the article?

      Delete
    2. Filter questions, key words and phrases aren't input or interpreted by people unless the HR department requires it because of costs, just those passed through (results). ATS aren't capable of reasoning and don't. There are at least 25+ large ATS companies systems being used by U.S. companies to screen applicants. The largest have the biggest impact and have hit a critical mass regarding market share. Since ATS are essentially outsourced software, companies have given up control of their application oversight and/or their entire recruitment process to RPOs the/or ATS and are not minding their store.

      Delete
    3. ApplicantPro~
      If you aren't willing to comment with personal responsibility and contact don't bother commenting. I would be interested in clarification of your approach, though not new, but only if you are willing to put real person in contact with me.

      Delete