U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
|Subject: INFORMATION: Genetic Information Nondiscrimination Act of 2008||Date: November 20, 2010|
|From: Victor M. Mendez
|In Reply Refer to: HCR-40|
|To: All Employees|
On May 21, 2008, the Genetic Information Nondiscrimination Act of 2008 (GINA) was signed into law. The effective date of the GINA is November 21, 2009.
The GINA prohibits Federal employees from making employment related decisions based on an individual’s genetic information. Genetic information includes genetic tests of the individual or the individual’s family members, information about diseases, disorders, and family medical history.
Based on the requirements of the GINA, genetic information has been added as a basis in the Equal Employment Opportunity complaint process. Attached is additional information regarding the GINA from the U.S. Equal Employment Opportunity Commission.
If you have any questions, please contact Ms. Nikisha Pickett, Equal Opportunity Specialist, at 202-366-3894 or Nikisha.Pickett@dot.gov.
REVISED: BArmstead 11/18/09
cc: Reader File (HCR-40)
[Printable PDF, 168KB]
SUBJECT: Implementation of the Genetic Information Nondiscrimination Act of 2008 (GINA)
ISSUE: The Department requires Operating Administrations to be in full compliance with the GINA on the effective date of the Act (November 21, 2009)
Congress found that many genetic conditions and disorders are associated with particular racial and ethnic groups and gender. Because some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of genetic information. Congress had been informed of examples of genetic discrimination in the workplace. Therefore, Congress had a compelling public interest in relieving the fear of discrimination and in prohibiting its actual practice in employment.
The GINA was enacted to prohibit discrimination in employment related decisions based on genetic information. Genetic information will now be included as a basis for filing an Equal Employment Opportunity (EEO) complaint. The Department requires all Operating Administrations to inform employees about the GINA.
POINT OF CONTACT: Nikisha Pickett, Nikisha.Pickett@dot.gov, x63894
The Genetic Information Nondiscrimination Act of 2008, which prohibits genetic information discrimination, takes effect on November 21, 2009.
It is illegal to discriminate against employees or applicants because of genetic information.
Genetic information includes not only information about an individual's genetic test and the genetic tests of an individual's family members, but also information about any diseases, disorders, or conditions that someone's family member has. The law includes family medical history because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.
It is also against the law to retaliate against (i.e., take a negative job action or threaten) a person because the person complained about genetic discrimination, filed a charge of discrimination, or participated in an employment discrimination inquiry, investigation or lawsuit.
EEOC enforces the part of the Genetic Information Nondiscrimination Act that applies to employers; other agencies enforce the part of the law that applies to health insurance providers.
Genetic Information Discrimination and Work Situations
The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. There are no situations in which it is permissible to use genetic information to make an employment decision.
Rules Against Acquiring Genetic Information
It will usually be unlawful for an employer to get genetic information. There are six narrow exceptions to this prohibition: Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member's illness. Genetic information (such as family medical history) may be obtained as part of health or genetic services, such as a wellness program, that an employer provides on a voluntary basis.
Genetic information may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws), where an employee is asking for leave to care for a family member with a serious health condition.
Acquisition through commercially and publicly available documents like newspapers is permitted, as long as the employer is not searching those sources with the intent of finding genetic information.
Acquisition through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace is permitted where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
Confidentiality of Genetic Information
It is also unlawful for employers to disclose genetic information about applicants or employees and employers must keep genetic information confidential and in a separate medical file (genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act). There are limited exceptions to this non-disclosure rule.
Genetic Information Discrimination and Harassment
It is unlawful to harass someone because of his genetic information. Harassment can include, for example, offensive or derogatory remarks about an applicant or employee's genetic information, or the genetic information of a relative of the applicant or employee. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
It will usually be unlawful for an employer to get someone's genetic information or to reveal someone's genetic information. An employer may never use genetic information to make an employment decision, because genetic information doesn't tell the employer anything about someone's current ability to work.