The Equal Employment Opportunity Commission (EEOC) is The United States Government enforcement mechanism for Federal legislation regarding discrimination in the workplace. Two recent Acts of Congress under the management of the EEOC have particularly wide-ranging effects and potential effects for the American people. The Americans with Disabilities Act of 1990 is considered a landmark Act and a platform for future legislation of its type. The Genetic Nondiscrimination Act 2008 is part of a continuing line of anti-discrimination legislation.
Its full impact probably will not be seen for decades to come but its potential impact in closing a new avenue for discrimination is great. As Federal Acts these laws instantly have more impact than any pre-existing state laws. They set nationwide standards for businesses, labor unions and employment agencies. A business cannot relocate itself in a state where anti-discrimination laws are less strict or where enforcement is lax. Individuals can expect the same rights and protections nationwide, except in cases where certain industries have been granted exceptions for safety or national security reasons.
Traditionally, the Federal government has been hesitant to regulate private business. In the case of discrimination it has made exceptions when it became clear that discrimination was either unconstitutional, hurting national productivity, or both. The Civil Rights Movement was a catalyst for much of the anti-discrimination legislation we regard as commonplace today. Background The social upheaval of the 1960s triggered substantial changes in American law. Those changes were mirrored in actions of the United States Congress and Judiciary.
An increasing emphasis on the securing of individual rights for all Americans led to a series of new laws crafted especially to protect historically discriminated against minorities. Laws designed to even economic and societal playing fields for African-Americans and women were enacted in the 1960s and 70s. In the 1980s and 90s new laws focused on the rights of the disabled. About the same time individual privacy concerns came to the forefront. In this scientific and technological age, personal information is more readily available than ever. Genetic information could be spread widely in the blink of an eye.
This information could then be used in discriminatory ways. Researchers worry that a new spectrum of discrimination has been opened up based on a person’s genetic potential to become ill. A perceived genetic black mark could effectively label a person in much the same way as minorities, women and the disabled have been labeled in the past. Three laws: The Civil Rights Act of 1964, The Americans with Disabilities Act of 1990 (ADA) and the Genetic Nondiscrimination Act of 2008 (GINA) are part of a continuum of nondiscrimination laws designed to mitigate the effects of such labeling or prevent it all together.
The latter two laws were essentially a product of the first. Those two laws will be analyzed here. The Americans with Disabilities Act of 1990 (ADA) This Act came about from a growing cultural realization that people with physical disabilities have every right to full participation in American society. In many cases their contributions are equal or greater than able-bodied citizens. Instead of being seen as an embarrassment or a drag on society, they should be seen as valuable assets that should be cultivated rather than wasted.
Historically speaking, the disabled were not accommodated in this purpose. Instead they were excluded from employment and many of the other functions of the American society. This exclusion was often based on erroneous assumptions about the capabilities of disabled people, the reticence of others to accept them, etc. Framed in the legal context,
Disabled individuals already have much to overcome. Allowing discrimination to make their lives all the more difficult was morally wrong and, eventually, unconstitutional as well. The Americans with Disabilities Act of 1990 piggybacked upon the Civil Rights Act of 1964 and several other laws. It attempted to codify, in clear terms, the rights of the individual disabled citizen as well as the rights and responsibilities of various agencies, governmental organizations and private businesses dealing with the physically disabled. Purposes (ADA)
The Congress of The United States has determined that “Census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society and are severely disadvantaged socially, vocationally and educationally” (United States Equal Employment Opportunity Commission, 1990). Given those realities the potential impact of anti-discriminatory legislation is enormous. In some cases preventing discrimination is as simple as removing physical barriers. In other cases it requires a long-term attitude readjustment in opinions about the disabled and what they can or cannot do.
Discrimination has also occurred because businesses have irrational fears about what it will cost them to have employees with disabilities. This Act is designed to clarify what businesses can and cannot do in regard to the disabled. In a clarified landscape businesses can effectively keep costs down. The subtitle of the act describes its purpose this way: “To establish a clear and comprehensive prohibition of discrimination on the basis of disability” (United States Equal Employment Opportunity Commission, 1990).
In its statement of Findings and Purposes the Congress concluded that disabled people have suffered unjust discrimination and needless denial of opportunity. This discrimination has effectively relegated the disabled to “second class citizen” status in the United States. Modern medicine and recognition of the accomplishments of disabled Americans has led to a shift in perspective. In the past, qualified students were excluded from education by outdated attitudes or because of something as simple as physical barriers. The same was true in employment.
When disabled Americans were not plugged into these two critical facets of life, they would often end up excluded from society as a whole. In addition to being the “right thing to do”; this act is the result of a simple cost-benefit analysis. The cost of making attitude adjustments and simple accommodations pales in comparison to the potential societal benefits of having disabled people fully participating in society (Pickering, 2000). In addition to justifying the act based on evidence of past discrimination, the Congress also notes the financial toll of discrimination on the basis of disability.
Individuals suffer the costs of not having an equal chance to make a living. Society then suffers as well because many become dependent on government and other aid when equal opportunity might have made this unnecessary. Thirdly, the nation loses the productivity that many disabled people are capable of. Provisions (ADA) This act regulates what companies may and may not consider in the hiring, firing and promotion of employees with disabilities. Disabled employees cannot be classified as such if it, in any way, unfairly hinders their chances of success at the corporation.
The fact that the employee has a physical disability cannot be the deciding factor in whether or not an employee is hired or promoted, except under a very narrow set of criteria. Disabled employees are entitled to equal opportunity and equal pay for equal work. Reasonable accommodations must be made for the disabled employee wherever necessary. “Reasonable” is a term that is subject to ongoing interpretation. In some cases it can mean something simple as adding a wheelchair ramp or widening a bathroom door.
In other cases it can mean an alteration in the job itself. Employers have some leeway in this area. Courts have ruled that when accommodations would cause a “disparate” hardship on the company it may be granted a waiver from the “reasonable accommodations” standard. During the application phase, the employer may not ask about disabilities except in the context of the applicant’s ability to perform job-related tasks. If there is a pre-employment testing process the employer must make reasonable accommodations for each applicant to take the test.
Medical tests can be done on a voluntary basis. The results can only be used for hiring/firing decisions when a clear inability to do the job is apparent. The employee also may not be coerced or retaliated against when requesting accommodations mandated under this act. This prohibition also applies to any employee or other individual who may have helped a disabled person exercise their rights. Notices of this act must be posted by emplo9yers agencies and labor unions in an easily accessible place for employees to read.
Enforcement of the Act is handled by the Office of the Attorney General of the United States and The Equal Employment Opportunity Commission (EEOC). Sub agencies like The Occupational Safety and Health Administration and others may become involved if a particular case warrants. The Genetic Information Nondiscrimination Act of 2008 (GINA) By the turn of the twenty-first century a great deal of legislation aimed at securing the rights of minorities, women and the disabled had been enacted and had passed constitutional scrutiny. Meanwhile, a new technological age was emerging.
The world was rapidly becoming more interconnected. The science of genetics was also experiencing explosive progress. A new and nearly infallible method of identifying specific people animals and plants was discovered and refined. Genetic testing of individuals has been around for a while. In recent years this testing has become more refined, more widely available and less expensive. This type of testing can identify genes or gene disorders that are associated with a wide array of health conditions. This does not mean that the person will get the condition; it only means that the potential is there.
In 2008 Congress acted upon public worries that genetic testing and information could be used for discriminatory purposes. Employers might try to use genetic information for hiring, firing and promotion purposes. Insurers might also use that information for denial of coverage, rate changes or other purposes. In contrast with the ADA (1990), the Genetic Nondiscrimination Act of 2008 is an attempt to target potential discrimination before it becomes widespread. In addition to protecting the rights of individuals this Act is designed to create a friendlier environment for medical and scientific research.
According to Hudson, Holohan and Collins, “Along with the benefits it provides to individuals, the new law should have positive effects on the fields of clinical research and health care delivery” (2010). Purposes (GINA) The stated purpose of this Act is: “To prohibit discrimination on the basis of genetic information with respect to health insurance and employment” (United States Equal Employment Opportunity Commission, 2008). This is similar to the purpose stated in the ADA. Because of the nature of genetic science enforcement methods differ. Discrimination in this area can have wise-ranging effects.
Hudson et al. Also believe that genetic discrimination has had a chilling effect on potential research subjects. “Fear of genetic discrimination has also put a damper on patients’ willingness to consider genetic tests… or to have the results of such tests included in their medical records” (Hudson, Holohan and Collins, 2010). After fourteen years of Congressional debate GINA was finally passed in 2008. During the time this Act was under consideration, a number of states enacted their own laws on genetic testing and the transfer and usage of genetic information.
As the genetic science industry grew many of those laws have been repealed however. This triggered a renewed effort by the Congress to pass a set of uniform standards. In theory, genes are neutral indicators of human beings. In practice genetic information can be used for de facto discrimination against individuals. Provisions (GINA) In section 1 of the Act, The Employee Retirement Security Act of 1974 was amended to provide additional protection against genetic-based discrimination. Insurance companies may not set group premium rates based on disease potententiality identified through genetic testing.
Insurers can take into consideration diseases that have already manifested themselves in the group population. Heath plans may not require genetic testing as a policy condition. Under a narrow set of circumstances they can request genetic testing if it can assist in clarifying the health situation of a certain individual. It cannot request or mandate testing of the entire group. A genetic test is defined as: “an analysis of human DNA, RNA, chromosomes, proteins or metabolites that detects genotypes, mutations or chromosomal changes” (United States Equal Employment Opportunity Commission, 2008).
Fines for noncompliance begin at $100 daily for each employee. For example, if ten employees were mandated or coerced into genetic testing as a condition of maintaining insurance coverage, the federal government would levy a $1000 fine to the insurer retroactive to the time the coercion began. For violations more serious than de minims, the fines are higher. Genetic information may not be used for eligibility, maintenance of policy or as a pre-existing condition. Employers must comply with many of the same restrictions on genetic testing.
Hiring, promotion and firing decisions cannot be based on genetic information. Also the employer may not acquire or purchase genetic information about an employee without specific written permission. Even when permission is given all other restrictions still apply. Similar requirements also apply to employment agencies and labor organizations. One notable exception exists for labor organizations. If the purpose is to monitor the effects of toxins in the workplace, the collecting of genetic information may be allowable if certain requirements are met.
The employees must be notified and provided with individual results; and the actions must be compliant with OSHA, the provisions of this Act and any other federal laws. Section 206 of this Act addresses confidentiality, an issue of growing concern for many Americans. The Act strengthens confidentiality standards set forth in state and federal legislation, including the Americans with Disabilities Act of 1990 (ADA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Under this Act remedies and enforcement vary according to the type of violation and which statute the employee is covered under.
Analysis and Conclusion These are two Acts of Congress which may appear different on their face. They were enacted nearly twenty years apart. One targets a legacy of past behavior while the other is preventive in nature. One is based on very human issues while the other is concerned with the cutting-edge of science. Despite their differences, the two laws boil down to one issue of concern to every American – discrimination. These acts are part of a continuum not to create equality but to ensure equal opportunity. These laws are recognition of two of the greatest strengths of America.
This nation grew from humble seeds by expanding opportunity, over time, to those would not have received it before. The contributions of those citizens then fueled America’s rise to power. Secondly, the Acts are indicative of a nation’s willingness to right its past wrongs. This has been done many times in the history of the nation. Making these changes is not always easy, but it is necessary for the continued growth of the country. The impact of The Genetic Nondiscrimination Act of 2008 remains to be seen. It is very likely that as genetic science continues to grow the law will need to evolve.
Its ability to do so will be the measure of its ultimate impact. It will be a challenge for the law to keep up. In 1995, there were about 300 genetic tests for diseases and conditions. Most of these tests were done in the context of scientific research and were not readily available to the public. Today over 1500 tests are available. They are much more widely accessible and cover a wide range of conditions from rare to commonplace. The Genetic Nondiscrimination Act puts the scientific community on notice by setting privacy and ethical standards and creating an enforcement apparatus.
The safeguards in this Act may ultimately benefit science by making citizens more willing to participate in research. More importantly, it potentially closes doors to an entirely new and damaging form of discrimination. There are potential financial benefits as well. According to Hudson, Holohan and Collins “It will accelerate research… and allow Americans to finally realize the benefits and health care savings offered by gene-based medicine” (2010). This act is an early step for preventing discrimination in a burgeoning field. It is not comprehensive though.
The safety and reliably of genetic tests is one potential area for future regulation. Marketing of genetic testing services is another. When Congress considers regulatory acts of this nature there are many factors to take into consideration. It must consider effects and potential effects on a wide array of stakeholders. Preventing discrimination on one group without causing discrimination or undue hardship on another is a narrow line to walk. The ADA and GINA have made progress in preventing unjust and unnecessary discrimination.
The ADA has brought a large population of people out of society’s shadows. The Act will become all the more important as people can now live longer and be productive with disabilities. Our aging population also means that the law will impact an increasingly large group of people. The Genetic Nondiscrimination Act shares philosophical similarities with the ADA and The Civil Rights Act of 1964. Discrimination, whether based on race, disability or genetic makeup is not true to the United States’ Constitution. As a result of these laws individuals and society will benefit socially and economically.
America itself will benefit by having the contributions of the citizens’ affected. The nation benefits when the largest possible majority of its citizens enjoy the individual right to maximize potential. In a dynamic society, Congress will need to revisit and amend these laws in perpetuity in order to fulfill their true promise. References Hudson, Kathy, M. K. Holohan and Frances Collins. (2010). “Keeping Pace with the Times: The Genetic Nondiscrimination Act of 2008”. NEJM. Retrieved May 29 from: http://content. nejm. org/cgi/content/full/358/25/2661
Pickering, Francis. (2000). Americans with Disabilities: exploring implications of the law for individuals and institutions. New York: Routledge. United States Equal Employment Opportunity Commission (EEOC). (2008). “The Genetic Nondiscrimination Act of 2008”. EEOC. Retrieved May 29, 2010 from: http://www. eeoc. gov/laws/statutes/gina. cfm United States Equal Employment Opportunity Commission (EEOC). (1990). “Titles I and V of the Americans with Disabilities Act of 1990”. EEOC. Retrieved May 30, 2010 from: http://www. eeoc. gov/laws/statutes/ada. cfm