II 117th CONGRESS 2d Session S. 5333 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. 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 ) 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. 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 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 ). 6. Effective date This Act shall take effect 90 days after the date of enactment of this Act.