Title: Advancing Skills-Based Hiring Act of 2022
Policy area: Labor and Employment

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.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5333 Introduced in Senate (IS)]

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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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Advancing Skills-Based Hiring Act of 
2022''.

SEC. 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)).

SEC. 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'') shall--
            (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)) by the 
        Commission. The amount of the fees shall be determined by the 
        Commission under paragraph (2) of that section 705(k), and the 
        review under subsection (b) shall be considered to be technical 
        assistance under that section 705(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.

SEC. 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).

SEC. 5. DEFINITIONS.

    For purposes of this Act:
            (1) Competency-based assessment.--The term ``competency-
        based assessment'' means an assessment or selection procedure 
        that purports to measure the knowledge, skills, abilities, or 
        personal or behavior characteristics that are necessary for, or 
        shown to predict, successful job performance.
            (2) Employee; employer.--The terms ``employee'' and 
        ``employer'' have the meanings given the terms in section 701 
        of the Civil Rights Act of 1964 (42 U.S.C. 2000e).

SEC. 6. EFFECTIVE DATE.

    This Act shall take effect 90 days after the date of enactment of 
this Act.
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