Advancing Skills-Based Hiring Act of 2023

I 118TH CONGRESS 1ST SESSION H. R. 4187 To establish a voluntary compliance assistance initiative at the Equal Employ- ment Opportunity Commission regarding the usage of employment tests and selection procedures by employers. IN THE HOUSE OF REPRESENTATIVES JUNE 15, 2023 Ms. STEFANIK introduced the following bill; which was referred to the Committee on Education and the Workforce A BILL To establish a voluntary compliance assistance initiative at the Equal Employment Opportunity Commission regard- ing the usage of employment tests and selection proce- dures by employers. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Advancing Skills- 4 Based Hiring Act of 2023’’. 5 SEC. 2. PURPOSE. 6 It is the purpose of this Act— 7 VerDate Sep 11 2014 03:11 Jul 22, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4187.IH H4187 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 4187 IH (1) to empower employers to adopt a skills- 1 based approach to hiring through a voluntary com- 2 pliance assistance program regarding the appro- 3 priate use of employment tests and selection proce- 4 dures, and 5 (2) to enable employers to proactively submit 6 validation information to the Equal Employment 7 Opportunity Commission for review to ensure use of 8 such tests and procedures is job-related for the posi- 9 tion in question and consistent with business neces- 10 sity within the meaning of section 703(k)(1)(A)(i) of 11 the Civil Rights Act of 1964 (42 U.S.C. 2000e– 12 2(k)(1)(A)(i)). 13 SEC. 3. REVIEW BY EQUAL EMPLOYMENT OPPORTUNITY 14 COMMISSION OF INFORMATION VOLUN- 15 TARILY SUBMITTED BY EMPLOYERS. 16 (a) VOLUNTARY SUBMISSION AND REVIEW OF EM- 17 PLOYER INFORMATION.—The Equal Employment Oppor- 18 tunity Commission (in this Act referred to as the ‘‘Com- 19 mission’’) shall— 20 (1) establish a process for employers— 21 (A) to voluntarily submit validity evidence 22 to the Commission on the use, or prospective 23 use, of competency-based assessments or other 24 professionally developed selection procedures 25 VerDate Sep 11 2014 03:11 Jul 22, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4187.IH H4187 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 4187 IH that are used to make employment decisions, 1 and 2 (B) to obtain a determination by the Com- 3 mission as to whether such use is job-related 4 for the position in question and consistent with 5 business necessity within the meaning of section 6 703(k)(1)(A)(i) of the Civil Rights Act of 1964 7 (42 U.S.C. 2000e–2(k)(1)(A)(i)), 8 (2) as part of such process, set forth the valid- 9 ity evidence that participating employers should sub- 10 mit, which may include— 11 (A) a criterion-related validity study, 12 (B) a content validity study, 13 (C) a construct validity study, or 14 (D) a transportability study that includes 15 the validity evidence from a study, 16 conducted by another entity, along with evidence 17 from the employer that shows job similarity, and 18 (3) allow employers to submit validity evidence 19 for review regardless of the existence of an adverse 20 impact from the use of the assessment or selection 21 procedure on protected groups, but require such sub- 22 mitted evidence to include any information available 23 on whether the use has resulted in adverse impact. 24 VerDate Sep 11 2014 03:11 Jul 22, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4187.IH H4187 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 4187 IH (b) REVIEW OF SUBMITTED EMPLOYER INFORMA- 1 TION.—Subject to the payment required by subsection (d), 2 the Commission shall review the information submitted 3 under subsection (a) and— 4 (1) determine that the use of the assessment or 5 selection procedure identified by the employer is job- 6 related and consistent with business necessity, or 7 (2) provide technical assistance to such em- 8 ployer that includes, at a minimum— 9 (A) an explanation of why the Commission 10 cannot make such a determination, and 11 (B) steps the employer could take, or 12 changes the employer could implement, that will 13 enable the Commission to make the determina- 14 tion in subsection (b)(1). 15 (c) SAFE HARBOR.—The determination from the 16 Commission under subsection (b)(1) that the employer’s 17 use of an assessment is job-related and consistent with 18 business may be used by the employer to satisfy its burden 19 of proof under section 703(k)(1)(A)(i) of the Civil Rights 20 Act of 1964 (42 U.S.C. 2000e–2(k)(1)(A)(i)). 21 (d) FEE PAYABLE FOR REVIEW.—To obtain review 22 under subsection (b), an employer with more than 100 em- 23 ployees shall pay to the Commission a reasonable fee de- 24 VerDate Sep 11 2014 03:11 Jul 22, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4187.IH H4187 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 4187 IH termined by the Commission to offset the cost incurred 1 by the Commission to provide such review. 2 (e) LIMITATION.—Any information submitted by the 3 employer under subsection (a) and any technical assist- 4 ance provided by the Commission under subsection (b)(2) 5 regarding the information submitted by the employer re- 6 lated thereto shall— 7 (1) not be used against such employer as a 8 basis for a future enforcement action, and 9 (2) shall be inadmissible in a Federal or State 10 court proceeding without the consent of such em- 11 ployer. 12 SEC. 4. EDUCATION AND TECHNICAL ASSISTANCE. 13 The Commission shall provide education and tech- 14 nical assistance on the use of employment tests or other 15 selection procedures, including education and technical as- 16 sistance on the methods of validation of an employment 17 test or selection procedure and on the opportunity to vol- 18 untarily submit validity evidence to the Commission to 19 seek a determination that use of an employment test or 20 selection procedure is job-related and consistent with busi- 21 ness necessity. 22 SEC. 5. DEFINITION. 23 For purposes of this Act, the term ‘‘competency- 24 based assessment’’ means an assessment or selection pro- 25 VerDate Sep 11 2014 03:11 Jul 22, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4187.IH H4187 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 4187 IH cedure that purports to measure the knowledge, skills, 1 abilities, or personal or behavior characteristics that are 2 necessary for, or shown to predict, successful job perform- 3 ance. 4 SEC. 6. EFFECTIVE DATE. 5 This Act shall take effect 90 days after the date of 6 the enactment of this Act. 7 Æ VerDate Sep 11 2014 03:11 Jul 22, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\H4187.IH H4187 kjohnson on DSK79L0C42PROD with BILLS