EEOC Proposes Rules to Bar Genetic Discrimination

By Staff Report

Feb. 26, 2009

Employers would be prohibited from making hiring, firing and other personnel decisions on the basis of workers’ genetic predisposition to a disease under rules to be proposed this week by the Equal Employment Opportunity Commission.

The proposals, which are open for public comment over the next two months, also would bar employers from deliberately acquiring genetic information from employees and job applicants, according to testimony before commissioners by EEOC lawyer Christopher Kuczynski on Wednesday, February 25

In addition, employers would be restricted from disclosing genetic information about workers and applicants. Violators would be subject to compensatory and punitive damages under some circumstances.

The rules, which must be issued by May 21, would implement the Genetic Information Nondiscrimination Act of 2008, which was signed into law by President George W. Bush last May. It is the first legislative expansion of employment discrimination law since the 1990 Americans with Disabilities Act and extends the reach of the law beyond age, race, religion, sex and disability.

“Congress believed that individuals were not taking advantage of genetic tests that could inform them whether they are at risk of acquiring certain conditions, because of concerns about discrimination,” Kuczynski told commissioners in Washington on Wednesday. “Moreover, without this legislation, Congress believed individuals might be reluctant to participate in beneficial genetic research.”

The rules would apply to public and private employers with at least 15 employees, the EEOC said in a fact sheet.

The genetic information covered by the rules includes tests of an individual and his or her family, as well as family medical history.

The rules would not apply to information about an individual’s current disease or condition. The category of “genetic information” also excludes the sex or age of a person, or tests for drug or alcohol use, the fact sheet said.

Employers would be barred from intentionally acquiring this information, though there would be a so-called “water cooler” exception for supervisors who inadvertently learn of an employee’s condition.

Such instances might include a boss overhearing a conversation between co-workers or receiving genetic information in response to a question about the general health of an employee, according to the fact sheet.

Because of these exceptions, workers could not file claims under a so-called “disparate impact” theory, attorney Rae Vann said at the hearing.

“Disparate impact” claims have alleged, for example, that employer background or credit checks have inadvertently discriminated against minorities because of their disproportionate brushes with the criminal justice system and credit collection agencies, she said in an interview.

Employee advocates Wednesday hailed the implementation of the legislation. The law had been opposed by business groups.

“This is really the first time that the Congress has passed such legislation before the covered discrimination has become completely ingrained in the social fabric,” said Jeremy Gruber, president of the Council for Responsible Genetics.

The legislation, which unanimously passed the Senate and passed the House with only one opposing vote, is a response to developments in the field of genetics, the decoding of the human genome and advances in genomic medicine.

Genetic tests now can determine whether individuals may be at risk for a specific disease or disorder.

As of 2008, only one genetic discrimination suit had ever been filed, even though 41 states have laws prohibiting such discrimination on their books, according to Washington employment lawyer Burton Fishman.

“To the extent that employment discrimination on the basis of genetic discrimination has not been a pervasive problem, the EEOC should point out in its implementing regulations that the aim of the law is to prevent a discrimination problem from developing,” said Vann, a Washington lawyer with the Equal Employment Advisory Council, a nonprofit group that represents Fortune 500 companies.

The regulation should be “user-friendly,” with “clear and practical examples,” she told the EEOC panel.

Another employment lawyer recommended that the rules clarify a potential problem for small businesses.

These businesses often request physicians’ notes to excuse worker absences, said Karen Elliott, an attorney with the firm of Gregory Kaplan and a member of the Society for Human Resource Management.

Physicians’ notes sometimes volunteer medical information, she said.

“The regulations should clarify the breadth of exceptions permitting acquisition of all such information,” Elliott said.

The 2008 law also bars health insurance decisions based on genetic information. The Labor, Treasury and Health and Human Services departments are preparing rules to implement that portion of the legislation.

Filed by Neil Roland, a staff writer for the Crain Financial Group, which includes Workforce Management. To comment, e-mail

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