11/25/2008
Sarah A. Luke
With the recent rise in popularity of career Web sites such as Monster.com, which boasts of 18 million resumes posted online and nearly 500,000 available jobs, many employers have taken the initiative to launch their own online recruiting Web sites.
More and more employers are turning to the Internet to identify qualified job applicants. In fact, a recent study by Inavero Institute for Service Research found that 50 percent of hiring managers use online resources to fill nearly 72 percent of their vacant salaried positions. Online recruiting has become a primary technique of many human resources professionals hoping to identify talented applicants in an increasingly large pool.
Caught Unaware
The rise in popularity of online recruiting raises unique compliance issues under the Americans with Disabilities Act, issues about which many employers are unaware. For example, a recent study conducted at Cornell University found that although online recruiting has made significant inroads into human resources processes, most employers had not considered the accessibility of their recruiting Web sites to applicants with disabilities. The majority of human resources professionals were simply unaware of the existence of technologies and Web site design formats that accommodate applicants with disabilities.
This lack of awareness presents a real potential for certain populations of individuals with disabilities to be excluded from this very popular avenue of searching for and obtaining employment.
Compliance Guide
Aware of the potential for adverse impact, the Office of Federal Contract Compliance Programs (OFCCP) issued a regulatory compliance guide to assist government contractors with compliance issues associated with online recruiting. However, given the expansion of the Americans with Disabilities Act, the guidance provided by the OFCCP also proves helpful for federal contractors, public employers and private employers.
The OFCCP guidance provides that an employer should ensure its online application system incorporates "interoperable" electronic and information technologies, rendering it generally accessible. Specifically, the regulations provide that "[i]nteroperability is the ability of a computer system to effectively interact and communicate when an applicant with a disability is using assistive technology/adaptive software and adaptive strategies with the [employer's] application system."
The U.S. Department of Labor has identified resources available to employers who wish to make their online recruiting Web sites interoperable. These are available at the Department of Labor's Office of Disability Employment Policy Web site (www.dol.gov/odep/) and the Job Accommodation Network Web site (www.jan.wvu.edu).
Web Accommodations
An interoperable recruiting Web site could potentially accommodate individuals with several different types of disabilities including hearing impairments, sensory impairments, motor impairments and cognitive impairments. For example, using large graphics to mark hyperlinks would enable an applicant who suffers from tremors to access the hyperlink more easily. Additionally, a neatly organized screen would aid individuals who are easily distracted in grasping the site's content. Finally, removing the refresh option from the screen would aid users with sensory impairments, making it difficult to repeatedly restart while scrolling through a Web page.
The OFCCP has cautioned that employers who provide an alternative application process for disabled job applicants in lieu of ensuring that their Web sites are interoperable are committing an unlawful pre-employment inquiry into whether an applicant is disabled and that will likely result in liability under the ADA. In contrast, an employer who routinely offers applicants various methods of applying for jobs and affords all such applicants equal consideration may not need to focus on the interoperability of its Web site. Thus, employers walk a fine line when determining the best use of company resources to ensure ADA compliance.
More Change Coming
Employers that choose to focus on the interoperability of their Web sites face a tough challenge. Because the rise in popularity of online recruiting Web sites is relatively recent, there is very little law for an employer to rely on. The Job Accommodation Network and the Department of Labor provide some guidance; however, the enactment of the ADA Amendments in January 2009, which undoubtedly extend the reach of the ADA, will only complicate this area.
If you would like help ensuring that your company's career Web site is interoperable and compliant with the regulatory standards of the ADA, please contact any member of the WNJ Human Resources practice group.
