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 initiative regarding the appropriate use of employment tests and selection procedures; and (2) to enable employers to proactively submit validity evidence 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 (including 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 establishing such process, set forth the validity evidence that participating employers shall submit, which may include— (A) the results of a criterion-related validity study; (B) the results of a content validity study; (C) the results of a construct validity study; or (D) the validity evidence from a study conducted by an entity other than the employer, 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 involved on protected groups, but require such submitted evidence to include any information available on whether the use has resulted in such an adverse impact. (b) Review of submitted employer information Subject to the payment required by subsection (d), the Commission shall— (1) review the information submitted under subsection (a); and (2) (A) determine that the use of the assessment or selection procedure identified by the employer is job related and consistent with business necessity as described in subsection (a)(1)(B); or (B) provide technical assistance to such employer that includes, at a minimum— (i) an explanation of why the Commission cannot make that determination; and (ii) steps the employer could take, or changes the employer could implement, that will enable the Commission to make that determination. (c) Safe harbor The determination from the Commission under subsection (b)(2)(A) that the employer’s use of an assessment or selection procedure is job related and consistent with business necessity 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 (1) In general To obtain review under subsection (b), an employer with more than 100 employees shall pay to the Commission a reasonable fee to offset the cost incurred by the Commission to provide such review. (2) Relationship to EEOC Education, Technical Assistance, and Training Revolving Fund Fees received under paragraph (1) shall be deposited in the EEOC Education, Technical Assistance, and Training Revolving Fund described in section 705(k) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–4(k) (e) Limitation Any information submitted by the employer under subsection (a) and any technical assistance provided by the Commission under subsection (b)(2)(B) regarding the assessment or selection proceeding involved— (1) shall not be used against such employer as a basis for an enforcement action on or after the date of the submission; 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 competency-based assessments or other selection procedures described in section 3(a)(1)(A), including education and technical assistance on the methods of validation of such an assessment or selection procedure and on the opportunity to voluntarily submit validity evidence to the Commission to seek a determination described in section 3(b)(2)(A). 5. Definitions For purposes of this Act: (1) Competency-based assessment The term competency-based assessment (2) Employee; employer The terms employee employer 42 U.S.C. 2000e 6. Effective date This Act shall take effect 90 days after the date of 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.