*The U.S. Equal Employment Opportunity Commission*

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# Questions and Answers: EEOC Policy Guidance on Executive Order 13145 ProhibitingDiscrimination in Federal Employment Based on GeneticInformation

## Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

list of specific changes to the ADA

This guidance explains theapplication of Executive Order 13145, which prohibits employmentdiscrimination based on "protected genetic information" in theExecutive branch. The guidance describes the Executive Order'sgeneral prohibitions on the collection, use, and disclosure of"protected genetic information," and explains how the limitedexceptions to these prohibitions should be implemented. Theguidance also discusses how an individual could establish coverageunder section 501 of the Rehabilitation Act based on "protectedgenetic information."

- *Who is covered by the ExecutiveOrder?*  Applicants, employees, and former employees of Executive branchdepartments and agencies are covered. Individuals employed in theprivate sector are not covered. 
- *Did the Executive Order create any new rights forapplicants or employees of suchdepartments oragencies?*  No. The Executive Order did not create new rights. The ExecutiveOrder established a policy of nondiscrimination based on "protectedgenetic information" and directed the head of each department oragency to identify a high-level official to be responsible forimplementing this policy. The Executive Order directed the EEOC tocoordinate this policy of nondiscrimination on the basis of"protected genetic information." 
- *What does "protected genetic information"mean?*  The Executive Order defined "protected genetic information" tomean:    - 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 medicalcondition or disorder in family members of the individual( i.e.,  family medical history). 
- *Why is family medical history considered "protectedgenetic information"?*  Family medical history does not provide information about anindividual's current ability to perform a job. Therefore, familymedical history, like genetic test results, is "protected geneticinformation" under the Executive Order. 
- *Is information about an applicant's or anemployee's current health status considered "protected geneticinformation"?*  No. "Protected genetic information" does not include anapplicant's or an employee's current health status information,such as age, gender, and physical examination results, exclusive offamily medical history.  The Rehabilitation Act and other laws, however, regulate whendepartments or agencies may request or require applicants andemployees to take medical examinations. 
- *What is prohibited under the ExecutiveOrder?*  Departments and agencies are prohibited from using "protectedgenetic information" for employment decisions. They also areprohibited from collecting and disclosing such information, withlimited exceptions. 
- *May departments and agencies require applicants andemployees to take genetic tests?*  Generally, no. However, there are two limited exceptions to theprohibition on genetic testing. First, the Executive Order allowsgenetic monitoring of employees for the effects of toxic substancesin the workplace under limited circumstances. Second, the ExecutiveOrder permits department or agency health offices to collect"protected genetic information" about employees who use the geneticor health care services offered by the health office. In bothinstances, the Executive Order imposes several requirements inorder to prevent the departments or agencies from using the"protected genetic information" as a basis for employmentdecisions. 
- *May departments and agencies require applicants andemployees to provide family medical history?*  Generally, no. There is one exception: departments and agenciesmay request family medical history when they are allowed to makedisability-related inquiries of post-offer applicants and employeesunder the Rehabilitation Act. Departments and agencies may only usesuch family medical history to decide if further medical evaluationis needed to diagnose a *current* disease that could preventan individual from performing the essential functions of theposition held or desired. 
- *May departments and agencies disclose "protectedgenetic information"?*  Generally, no. Disclosure is permitted only:    - to the employee;
  - to Executive branch officials investigating compliance with theExecutive Order;
  - to an occupational or other health researcher conductingresearch that complies with 45 CFR Part 46 (concerning researchinvolving human subjects);
  - in response to a judicial order or a congressional subpoena;and
  - as required by federal law. 
- *What is the relationship of the Executive Order tosection 501 of the Rehabilitation Act, which prohibitsdiscrimination in federal employment against qualified individualswith disabilities?*  Applicants and employees who believe that a department or agencyhas violated the Executive Order by discriminating on the basis of"protected genetic information" *may* be able to establishcoverage as "an individual with a disability" under section 501ofthe Rehabilitation Act. 
- *Can an individual be regarded as having asubstantially limiting impairment based on the results of genetictests or family medical history?*  Yes. A department or agency that makes an adverse employmentdecision because of an individual's genetic test results or familymedical history may be regarding an individual with no knownimpairments as having an impairment that substantially limits amajor life activity. 
- *Can an individual with a misspelled or altered geneassociated with a severe diseaseor disorder be covered under theactual disability prong of the definition of disabilityunder theRehabilitation Act?*  Yes, in limited circumstances.    - Under the Rehabilitation Act, the term "impairment" means anyphysiological disorder. A misspelling or alteration in a genecauses cellular and molecular changes leading to disturbances incell function. Therefore, the misspelling or alteration is an"impairment" for purposes of section 501 of the RehabilitationAct.
  - In  Bragdon v. Abbott,  the Supreme Court held thatreproduction is a major lifeactivity.
  - If an individual has a misspelled or altered gene associatedwith a severe or fatal disease or disorder, and this misspelled oraltered gene substantially limits him or her in the major lifeactivity of reproduction, then the individual would have an actualdisability. 
- *How can an individual pursue a complaint undersection 501 of the Rehabilitation Act alleging discrimination basedon genetics?*  An individual should follow the same procedures generally usedfor section 501 complaints. *See* 29 C.F.R. Part 1614(1999), as amended by 64 Fed. Reg. 37,644 (1999). 

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*This page was last modified on July 27, 2000.*

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