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First Executive Order of the 21st Century Addresses Employment Discrimination

Heather R. Fox
Towson University

On February 8, President Clinton signed Executive Order 13145 prohibiting federal departments and agencies from discriminating in any hiring or promotion decision on the basis of protected genetic information. The Executive Order defines protected genetic information as: (a) information about an individual's genetic tests or genetic tests of that individual's family members; and (b) information about the occurrence of disease, or medical condition, or disorder in family members of the individual.

The President stated in a press conference that he hoped that the Executive Order, applicable only to the civilian federal workforce, would "set an example and pose a challenge for every employer in America" to adopt a policy not to discriminate on the basis of protected genetic information. The Executive Order assigns to the U.S. Equal Employment Opportunity Commission (EEOC) the responsibility for coordinating this policy with federal departments and agencies.

Although the Executive Order only applies to the federal sector, legislation has been introduced to extend similar protections to the private sector and to individuals purchasing health insurance. Title II of the proposed Genetic Nondiscrimination in Health Insurance and Employment Act of 1999, introduced in July 1999 and referred to the appropriate House and Senate committees, makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of predictive genetic information with respect to the individual (or information about a request for or the receipt of genetic services by such individual or family member of such individual). Although there has been no action on these bills since they were referred to the committees, President Clinton endorsed the bills at the February 8, 2000 press conference. Recent media attention and potential lawsuits may be enough to prompt congressional hearings in 2000.

In related news, the EEOC is currently in the discovery stages of a lawsuit alleging a company violated federal anti-discrimination law by using a nerve-conduction test to screen out workers who might someday become disabled. The EEOC has said it considers discrimination against workers with a genetic predisposition for a disease to be a violation of the Americans with Disabilities Act. The agency has taken the same position concerning medical tests, such as the nerve-conduction test or tests that look for genetic markers, such as breast cancer, sickle cell trait, and Huntington's disease. Although the use of genetic tests in employment situations is relatively rarefewer than 1 % of those surveyed in an American Management Association study reported using genetic testssome employers may use these tests to discriminate against workers who have not yet or may never show signs of illness. Employers argue that it is an effective and reasonable way to control health care costs. As predictive medical testing and genetic testing become widespread, it will be a thorny issue for the courts to balance the rights of employers to protect their performance and profits with the potential misuse of employee's private information.


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