Advancing Skills-Based Hiring Act of 2022

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. Short title This Act may be cited as the Advancing Skills-Based Hiring Act of 2022 2. Purpose It is the purpose of this Act— (1) to empower employers to adopt a skills-based approach to hiring through a voluntary compliance assistance program regarding the appropriate use of employment tests and selection procedures, and (2) to enable employers to proactively submit validation information to the Equal Employment Opportunity Commission for review to ensure use of such tests and procedures is job-related for the position in question and consistent with business necessity within the meaning of section 703(k)(1)(A)(i) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–2(k)(1)(A)(i) 3. Review by Equal Employment Opportunity Commission of information voluntarily submitted by employers (a) Voluntary submission and review of employer information The Equal Employment Opportunity Commission (in this Act referred to as the Commission (1) establish a process for employers— (A) to voluntarily submit validity evidence to the Commission on the use, or prospective use, of competency-based assessments or other professionally developed selection procedures that are used to make employment decisions, and (B) to obtain a determination by the Commission as to whether such use is job-related for the position in question and consistent with business necessity within the meaning of section 703(k)(1)(A)(i) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–2(k)(1)(A)(i) (2) as part of such process, set forth the validity evidence that participating employers should submit, which may include— (A) a criterion-related validity study, (B) a content validity study, (C) a construct validity study, or (D) a transportability study that includes the validity evidence from a study, conducted by another entity, along with evidence from the employer that shows job similarity, and (3) allow employers to submit validity evidence for review regardless of the existence of an adverse impact from the use of the assessment or selection procedure on protected groups, but require such submitted evidence to include any information available on whether the use has resulted in adverse impact. (b) Review of submitted employer information Subject to the payment required by subsection (d), the Commission shall review the information submitted under subsection (a) and— (1) determine that the use of the assessment or selection procedure identified by the employer is job-related and consistent with business necessity, or (2) provide technical assistance to such employer that includes, at a minimum— (A) an explanation of why the Commission cannot make such a determination, and (B) steps the employer could take, or changes the employer could implement, that will enable the Commission to make the determination in subsection (b)(1). (c) Safe harbor The determination from the Commission under subsection (b)(1) that the employer’s use of an assessment is job-related and consistent with business may be used by the employer to satisfy its burden of proof under section 703(k)(1)(A)(i) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–2(k)(1)(A)(i) (d) Fee payable for review To obtain review under subsection (b), an employer with more than 100 employees shall pay to the Commission a reasonable fee determined by the Commission to offset the cost incurred by the Commission to provide such review. (e) Limitation Any information submitted by the employer under subsection (a) and any technical assistance provided by the Commission under subsection (b)(2) regarding the information submitted by the employer related thereto shall— (1) not be used against such employer as a basis for a future enforcement action, and (2) shall be inadmissible in a Federal or State court proceeding without the consent of such employer. 4. Education and technical assistance The Commission shall provide education and technical assistance on the use of employment tests or other selection procedures, including education and technical assistance on the methods of validation of an employment test or selection procedure and on the opportunity to voluntarily submit validity evidence to the Commission to seek a determination that use of an employment test or selection procedure is job-related and consistent with business necessity. 5. Definition For purposes of this Act, the term competency-based assessment 6. Effective date This Act shall take effect 90 days after the date of the enactment of this Act.

Summary: Advancing Skills-Based Hiring Act of 2022 This bill allows employers to submit to the Equal Employment Opportunity Commission (EEOC) evidence that a competency-based skills test or other employment selection process is consistent with lawful employment practices. The EEOC must review each submission and determine whether the procedure is job-related and consistent with a business necessity, or provide technical assistance to the employer about potential changes that would allow the EEOC to make such a determination. Such a determination may be used by the employer to satisfy the burden of proof under the disparate impact analysis with respect to a claim of an unlawful discrimination.