Questions and Answers:
EEOC Policy Guidance on
Executive Order 13145
Prohibiting Discrimination in
Federal Employment Based on
Genetic Information

Questions and Answers:
EEOC Policy Guidance on Executive Order 13145 Prohibiting Discrimination in Federal Employment Based on Genetic Information

This guidance explains the application of Executive Order 13145, which prohibits employment discrimination based on "protected genetic information" in the Executive branch. The guidance describes the Executive Order's general prohibitions on the collection, use, and disclosure of "protected genetic information," and explains how the limited exceptions to these prohibitions should be implemented. The guidance also discusses how an individual could establish coverage under section 501 of the Rehabilitation Act based on "protected genetic information."

1. Who is covered by the Executive Order?

   Applicants, employees, and former employees of Executive branch departments and agencies are covered. Individuals employed in the private sector are not covered.

2. Did the Executive Order create any new rights for applicants or employees of suchdepartments or agencies?

   No. The Executive Order did not create new rights. The Executive Order established a policy of nondiscrimination based on "protected genetic information" and directed the head of each department or agency to identify a high-level official to be responsible for implementing this policy. The Executive Order directed the EEOC to coordinate this policy of nondiscrimination on the basis of "protected genetic information."

3. What does "protected genetic information" mean?

   The Executive Order defined "protected genetic information" to mean:

   • information about the results of an individual's genetic tests, and the genetic tests of that individual's family members; and
   • information about the occurrence of disease, or medical condition or disorder in family members of the individual (i.e., family medical history).
4. Why is family medical history considered "protected genetic information"?

   Family medical history does not provide information about an individual's current ability to perform a job. Therefore, family medical history, like genetic test results, is "protected genetic information" under the Executive Order.

5. Is information about an applicant's or an employee's current health status considered "protected genetic information"?

   No. "Protected genetic information" does not include an applicant's or an employee's current health status information, such as age, gender, and physical examination results, exclusive of family medical history.

   The Rehabilitation Act and other laws, however, regulate when departments or agencies may request or require applicants and employees to take medical examinations.

6. What is prohibited under the Executive Order?

   Departments and agencies are prohibited from using "protected genetic information" for employment decisions. They also are prohibited from collecting and disclosing such information, with limited exceptions.

7. May departments and agencies require applicants and employees to take genetic tests?

   Generally, no. However, there are two limited exceptions to the prohibition on genetic testing. First, the Executive Order allows genetic monitoring of employees for the effects of toxic substances in the workplace under limited circumstances. Second, the Executive Order permits department or agency health offices to collect "protected genetic information" about employees who use the genetic or health care services offered by the health office. In both instances, the Executive Order imposes several requirements in order to prevent the departments or agencies from using the "protected genetic information" as a basis for employment decisions.

8. May departments and agencies require applicants and employees to provide family medical history?

   Generally, no. There is one exception: departments and agencies may request family medical history when they are allowed to make disability-related inquiries of post-offer applicants and employees under the Rehabilitation Act. Departments and agencies may only use such family medical history to decide if further medical evaluation is needed to diagnose a current disease that could prevent an individual from performing the essential functions of the position held or desired.

9. May departments and agencies disclose "protected genetic information"?

   Generally, no. Disclosure is permitted only:

   • to the employee;
   • to Executive branch officials investigating compliance with the Executive Order;
   • to an occupational or other health researcher conducting research that complies with 45 CFR Part 46 (concerning research involving human subjects);
   • in response to a judicial order or a congressional subpoena; and
   • as required by federal law.
10. What is the relationship of the Executive Order to section 501 of the Rehabilitation Act, which prohibits discrimination in federal employment against qualified individuals with disabilities?

    Applicants and employees who believe that a department or agency has violated the Executive Order by discriminating on the basis of "protected genetic information" may be able to establish coverage as "an individual with a disability" under section 501 ofthe Rehabilitation Act.

11. Can an individual be regarded as having a substantially limiting impairment based on the results of genetic tests or family medical history?

    Yes. A department or agency that makes an adverse employment decision because of an individual's genetic test results or family medical history may be regarding an individual with no known impairments as having an impairment that substantially limits a major life activity.

12. Can an individual with a misspelled or altered gene associated with a severe diseaseor disorder be covered under the actual disability prong of the definition of disabilityunder the Rehabilitation Act?

    Yes, in limited circumstances.

    • Under the Rehabilitation Act, the term "impairment" means any physiological disorder. A misspelling or alteration in a gene causes cellular and molecular changes leading to disturbances in cell function. Therefore, the misspelling or alteration is an "impairment" for purposes of section 501 of the Rehabilitation Act.
    • In Bragdon v. Abbott, the Supreme Court held that reproduction is a major lifeactivity.
    • If an individual has a misspelled or altered gene associated with a severe or fatal disease or disorder, and this misspelled or altered gene substantially limits him or her in the major life activity of reproduction, then the individual would have an actual disability.
13. How can an individual pursue a complaint under section 501 of the Rehabilitation Act alleging discrimination based on genetics?

    An individual should follow the same procedures generally used for section 501 complaints. See 29 C.F.R. Part 1614 (1999), as amended by 64 Fed. Reg. 37,644 (1999).