Discrimination Based on Genetic Information - Equal Employment Opportunity
Federal Employment Discrimination Based on Genetic Information
It is the policy of the U.S. Government to provide equal employment opportunity in Federal employment for all qualified persons and to prohibit discrimination against a request for or the receipt of genetic services. This guidance applies to every aspect of the Federal employment.
- "Employee" includes employee, applicant for employment or former employee.
- "Genetic monitoring" means the periodic examination of employees to evaluate acquired modifications to their genetic material that may have developed in the course of employment due to exposure to toxic substances in the workplace.
- "Genetic services" are health services, including genetic tests, provided to obtain or interpret genetic information for diagnostic or therapeutic purposes, or for purposes of genetic education or counseling.
- "Genetic test" means the analysis of human DNA, RNA, chromosomes, proteins, or certain metabolites in order to detect disease related genotypes or mutations.
- "Protected genetic information" means:
- Information about an individual’s genetic tests;
- Information about the genetic tests of an individual’s family members; or
- Information about the occurrence of a disease, or medical condition or disorder in family members of the individual (family medical history).
- Under the Executive Order, agencies must implement several non-discrimination requirements. Agencies must not:
- engage in adverse employment actions such as discharge, fail or refuse to hire, or otherwise discriminate against on the basis of protected genetic information or information about a request for, or the receipt of genetic services;
- request, require, collect, or purchase protected genetic information about employees, with limited exceptions;
- maintain protected genetic information in general personnel files, rather than in confidential medical files; or
- disclose protected genetic information about employees.
- Agencies must assure the confidentiality of any protected genetic information that is collected. This information must be treated with the same care as other confidential medical information and must be kept in files separately from official personnel files (OPFs). The Rehabilitation Act requires that applicant and employee medical information be kept confidentially in separate files.
Disclosure of Protected Genetic Information
- It is permitted in limited circumstances to disclose protected genetic information. The only exceptions for disclosure are:
- to the employee;
- to a person conducting research involving human subjects;
- if required by federal law;
- in response to a congressional subpoena or an order from a court; or
- to Executive Branch officials investigating compliance.
- The Executive Order allows agency medical personnel to obtain family medical history from all post-offer applicants in the same job category. An agency can use family medical history only to help decide whether to conduct further evaluation to diagnose a current disease, medical condition or disorder that could prevent the individual from performing essential job functions.
- The agency may seek family medical history for disability related inquiries of the employee under the Rehabilitation Act. These inquiries must be "job-related and consistent with business necessity." To meet this standard, the agency must demonstrate a reasonable belief, based on objective evidence, that:
- The employee’s ability to perform essential job functions will be impaired by a medical condition; or
- The employee will pose a direct threat due to a medical condition. It may be used only to determine medical evaluation of the employee’s current disease, medical condition, or disorder that could prevent the employee from performing essential job functions.
- Under the Rehabilitation Act, family medical history alone can never establish that an individual is not qualified or poses a direct threat. Whether an individual is qualified must be assessed based on his/her current ability to perform the essential job functions.
Violations of Section 501 of the Rehabilitation Act
Applicants, employees or former employees who believe there has been a violation of the Executive Order may be able to pursue a claim under the Rehabilitation Act. They must first establish that they meet the definition of an individual with a disability. The individual will then follow the procedures established in the federal sector EEO process regulations.
The Rehabilitation Act prohibits discrimination against an individual based on that person’s association with an individual with a disability. This provision protects an individual where the individual "is known to have a family, business, social, or other relationship or association" with individual with a disability. This is true whether the disability is caused by a genetic impairment or another reason.