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