Employee Recruitment by Design or Default: Uncertainty Under Title VII

The employment of every new worker is the result of a two-stage process: recruitment of applicants and selection from the applicant pool. A personnel officer may evaluate only John and Jane Worker because Juan and Juanita Worker are not in the applicant pool. What active or passive acts by the company establish the applicant pool? The issue becomes particularly troublesome when Juan and Juanita Worker are members of one minority group and John and Jane Worker are members of another racial or ethnic minority group. May employers legally recruit more actively from one group than another? This Article examines the types of cases involving recruitment issues and proposes a model for analyzing recruitment practices. The model distinguishes between restrictive recruitment practices, such as admitting applicants from a single source or requiring applications at a single time, and open recruitment practices, where an employer is willing to accept and consider all applications. Restrictive practices are those where the source of the application becomes virtually an employment requirement; the application is not considered unless it comes from an acceptable source or at an acceptable time. Thus, they should be treated by the same legal standards as selection requirements