Top 2009 Priorities for EEOC

Posted on March 16, 2009 by Ellen Simon

There was an interesting piece by Catherine Moreton Gray which reported Peggy Mastroianni's (associate legal counsel for the EEOC)  talk at the Society for Human Resource Managers Employment Law and Legislative Conference  in Washington last week. In that discussion, Mastroianni outlined the Commission's top priorities for 2009.

Here's what she listed:  

Enforcement of the Lilly Ledbetter Fair Pay Act: The EEOC will look closely at complaints it dismissed since May 27, 2007, the effective date of the Act to see if reinstatement is appropriate.  She said that the agency did not expect a surge in wage claims as a result of the new law.  It will be interesting to see if her prediction is correct.

GINA:  I wrote a post about the Genetic Information Non Discrimination Act in February.  In short, GINA prohibits the use of  genetic tests concerning an employee's own or family's medical history to make an employment decision.The EEOC is in the process of formulating regulations for enforcement of the Act.  There will be more to come about this law once the regulations are published.

ADA Amendments Act (ADAA):  The EEOC is working on proposed regulations for the ADAA. The big change of course is that the definition of the term disability will be construed broadly so that more people will be covered by the Act consistent with the Act's original intent. Mitigating measures, such as medications or prosthetic devices, can't be considered for purposes of determining whether a person is disabled.

I attended a Society for Human Resource Management Conference a couple of months ago.  The panel of management lawyers from the large firms all agreed on the advice to the HR manager attendees:  "treat everyone as disabled and accommodate." 

This is a good thing and it's about time.  According to Gray's article, one of  Mastroianni's remarks about the new amendments:  "employer's doing the reasonable thing won't have to make any changes."  We'll see.

Religious Discrimination:  I thought this discussion was  very interesting,  Three areas mentioned were:

  1. Scheduling cases: While an employer is not required to make other employees swap shifts to accommodate scheduling around religious observances, they can't interfere with employees switching on a volunteer basis
  2. Muslim prayer breaks:  Observant Muslims are required to pray five times a day. Employers may need to stagger breaks to accommodate this request so long as it does not pose an undue hardship on the business. This apparently has been a problem.
  3. Modifying duties: If pharmacists do not want to fill prescriptions for contraceptives on religious grounds, the employer may  have to accommodate and pass the prescription on to another pharmacist. Again, this is a story we have heard about, and it's good to see that the EEOC is tackling it.

We'll be talking more about these topics as the regulations and new cases get reported.

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Pope Speaks Out on Genetic Discrimination

Posted on February 24, 2009 by Ellen Simon

An article by the Associated Press  about Pope Benedict XVI's remarks on Saturday regarding the danger of genetic discrimination has generated a good deal of comment. What is genetic discrimination?

In sum, there are now more than 1,000 genetic tests for various disorders. These tests assess risk for illness ranging from prenatal tests for Down syndrome and birth defects to tests given to individuals with a family history of colon cancer, ovarian cancer and Huntington's disease to name a few. The medical community  strongly advocates the use of testing to help prevent disease and illness. Genetic discrimination refers to adverse decisions which are made as a result of those test results.

According to the Associated Press, Pope Benedict XVI said Saturday that any type of discrimination based on genetic factors,  such as a risk for cancer or other ailments, is an attack against all of humanity:

One's biological, psychological and cultural development and health can never become an element for discrimination.

The article went on to point out that the Pope's comments  were made in reference to to a screening mechanism for embryos created for testing prior to in-vitro fertilization. It comes as no surprise that the Vatican is strongly opposed to the practice.

The issues surrounding genetic discrimination however are far broader particularly as they relate to employment. I did a television interview about this topic last spring. Here's the problem.

Some employers and their health insurance companies require individuals to submit to genetic or chromosomal testing in order to determine  whether the person is predisposed to certain diseases or disabilities. The result is that some employers, as well as some insurance companies, make adverse employment  as well as health benefit decisions based on those test results.

In other words, your employer finds out that you have a history of breast cancer or colon cancer  in your family and decides not to hire you or  to fire you for that reason -- that's genetic discrimination.

Fortunately, genetic discrimination was virtually unanimously outlawed by Congress last year.  The Genetic Information Nondiscrimination Act  ("GINA") prohibits employers from firing, refusing to hire or otherwise discriminating against employees based on genetic information. Just a few days ago, Workplace Prof Blog  highlighted a newly published article by William Herbert and Amelia Tuminaro, in the Hofstra Labor and Employment Law Journal, which elaborates on this bill:

A central tenet of the legislation is to encourage individuals to take advantage of the benefits of genetic technology without having to fear that participation in genetic testing and studies will endanger job opportunities or health benefits ...

In addition to prohibiting employment discrimination based on genetic information, GINA also restricts employers generally  from' reques[ting], requir[ing], or purchas[ing] genetic information with respect to an employee or a family member of the employee.'

There are many great parts about GINA but  it's not perfect as Herbert and Amelia point out in their article. What's more,  it doesn't go into effect until October 2009 (eighteen months after its passage).

But at least the law prohibiting genetic discrimination was enacted, employers and insurance companies won't be able to discriminate against you based on your genetics, and it doesn't hurt that  the Pope's on our your side.

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