II 

117TH CONGRESS 

2D SESSION S. 5333 

To establish a voluntary compliance assistance initiative at the Equal Employment Opportunity Commission regarding the usage of employment tests 

and selection procedures by employers. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 21, 2022 

Mr. BRAUN introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To establish a voluntary compliance assistance initiative at 

the Equal Employment Opportunity Commission regarding the usage of employment tests and selection procedures by employers. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Advancing Skills5 Based Hiring Act of 2022’’. 

6 SEC. 2. PURPOSE. 

7 It is the purpose of this Act— 


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1 (1) to empower employers to adopt a skills2 based approach to hiring through a voluntary com3 pliance assistance initiative regarding the appro4 priate use of employment tests and selection proce5 dures; and 

6 (2) to enable employers to proactively submit 

7 validity evidence to the Equal Employment Oppor8 tunity Commission for review to ensure use of such 

9 tests and procedures is job related for the position 

10 in question and consistent with business necessity 

11 within the meaning of section 703(k)(1)(A)(i) of the 

12 Civil Rights Act of 1964 (42 U.S.C. 2000e– 

13 2(k)(1)(A)(i)). 

14 SEC. 3. REVIEW BY EQUAL EMPLOYMENT OPPORTUNITY 

15 COMMISSION OF INFORMATION VOLUN16 TARILY SUBMITTED BY EMPLOYERS. 

17 (a) VOLUNTARY SUBMISSION AND REVIEW OF EM18 PLOYER INFORMATION.—The Equal Employment Oppor19 tunity Commission (in this Act referred to as the ‘‘Com20 mission’’) shall— 

21 (1) establish a process for employers— 

22 (A) to voluntarily submit validity evidence 

23 to the Commission on the use (including pro24 spective use) of competency-based assessments 

25 or other professionally developed selection proVerDate Sep 11 2014 16:15 Jan 06, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S5333.IS S5333

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1 cedures that are used to make employment de2 cisions; and 

3 (B) to obtain a determination by the Com4 mission as to whether such use is job related 

5 for the position in question and consistent with 

6 business necessity within the meaning of section 

7 703(k)(1)(A)(i) of the Civil Rights Act of 1964 

8 (42 U.S.C. 2000e–2(k)(1)(A)(i)); 

9 (2) as part of establishing such process, set 

10 forth the validity evidence that participating employ11 ers shall submit, which may include— 

12 (A) the results of a criterion-related valid13 ity study; 

14 (B) the results of a content validity study; 

15 (C) the results of a construct validity 

16 study; or 

17 (D) the validity evidence from a study con18 ducted by an entity other than the employer, 

19 along with evidence from the employer that 

20 shows job similarity; and 

21 (3) allow employers to submit validity evidence 

22 for review regardless of the existence of an adverse 

23 impact from the use of the assessment or selection 

24 procedure involved on protected groups, but require 

25 such submitted evidence to include any information 


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1 available on whether the use has resulted in such an 

2 adverse impact. 

3 (b) REVIEW OF SUBMITTED EMPLOYER INFORMA4 TION.—Subject to the payment required by subsection (d), 

5 the Commission shall— 

6 (1) review the information submitted under 

7 subsection (a); and 

8 (2)(A) determine that the use of the assessment 

9 or selection procedure identified by the employer is 

10 job related and consistent with business necessity as 

11 described in subsection (a)(1)(B); or 

12 (B) provide technical assistance to such em13 ployer that includes, at a minimum— 

14 (i) an explanation of why the Commission 

15 cannot make that determination; and 

16 (ii) steps the employer could take, or 

17 changes the employer could implement, that will 

18 enable the Commission to make that determina19 tion. 

20 (c) SAFE HARBOR.—The determination from the 

21 Commission under subsection (b)(2)(A) that the employ22 er’s use of an assessment or selection procedure is job re23 lated and consistent with business necessity may be used 

24 by the employer to satisfy its burden of proof under secVerDate Sep 11 2014 16:15 Jan 06, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S5333.IS S5333

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1 tion 703(k)(1)(A)(i) of the Civil Rights Act of 1964 (42 

2 U.S.C. 2000e–2(k)(1)(A)(i)). 

3 (d) FEE PAYABLE FOR REVIEW.— 

4 (1) IN GENERAL.—To obtain review under sub5 section (b), an employer with more than 100 employ6 ees shall pay to the Commission a reasonable fee to 

7 offset the cost incurred by the Commission to pro8 vide such review. 

9 (2) RELATIONSHIP TO EEOC EDUCATION, TECH10 NICAL ASSISTANCE, AND TRAINING REVOLVING

11 FUND.—Fees received under paragraph (1) shall be 

12 deposited in the EEOC Education, Technical Assist13 ance, and Training Revolving Fund described in sec14 tion 705(k) of the Civil Rights Act of 1964 (42 

15 U.S.C. 2000e–4(k)) by the Commission. The amount 

16 of the fees shall be determined by the Commission 

17 under paragraph (2) of that section 705(k), and the 

18 review under subsection (b) shall be considered to be 

19 technical assistance under that section 705(k). 

20 (e) LIMITATION.—Any information submitted by the 

21 employer under subsection (a) and any technical assist22 ance provided by the Commission under subsection 

23 (b)(2)(B) regarding the assessment or selection pro24 ceeding involved— 


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1 (1) shall not be used against such employer as 

2 a basis for an enforcement action on or after the 

3 date of the submission; and 

4 (2) shall be inadmissible in a Federal or State 

5 court proceeding without the consent of such em6 ployer. 

7 SEC. 4. EDUCATION AND TECHNICAL ASSISTANCE. 

8 The Commission shall provide education and tech9 nical assistance on the use of competency-based assess10 ments or other selection procedures described in section 

11 3(a)(1)(A), including education and technical assistance 

12 on the methods of validation of such an assessment or se13 lection procedure and on the opportunity to voluntarily 

14 submit validity evidence to the Commission to seek a de15 termination described in section 3(b)(2)(A). 

16 SEC. 5. DEFINITIONS. 

17 For purposes of this Act: 

18 (1) COMPETENCY-BASED ASSESSMENT.—The 

19 term ‘‘competency-based assessment’’ means an as20 sessment or selection procedure that purports to 

21 measure the knowledge, skills, abilities, or personal 

22 or behavior characteristics that are necessary for, or 

23 shown to predict, successful job performance. 

24 (2) EMPLOYEE; EMPLOYER.—The terms ‘‘em25 ployee’’ and ‘‘employer’’ have the meanings given the 


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1 terms in section 701 of the Civil Rights Act of 1964 

2 (42 U.S.C. 2000e). 

3 SEC. 6. EFFECTIVE DATE. 

4 This Act shall take effect 90 days after the date of 

5 enactment of this Act. 

Æ 


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