EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

GINA: Forensic Lab Exception to Rules prohibiting Acquisition of Genetic Information

June 6, 2012

TRANSMITTED VIA EMAIL

Dear :

This letter responds to your request for an “informal advisory opinion” concerning interpretation of Section 202(b)(6) of the Genetic Information Nondiscrimination Act of 2008 (GINA). This exception to GINA’s provision that generally prohibits employers from requesting, requiring, or purchasing genetic information of applicants or employees, allows employers who conduct DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification to request or require genetic information from employees in certain circumstances. You asked whether this exception can be interpreted to apply to manufacturers of supplies used in forensic DNA analysis, thus permitting these employers to require employees to provide genetic information without violating GINA. You are concerned that if the exception does not apply to these employers, contamination of crime scene evidence that occurs at manufacturing facilities that produce evidence collection materials and other supplies will lead to the misidentification of suspects in criminal investigations.

Background on the Genetic Information Nondiscrimination Act of 2008

As you know, the EEOC enforces the federal laws that prohibit employment discrimination, including Title II of GINA. See 42 U.S.C. 2000ff. GINA became effective on November 21, 2009. The EEOC published a final rule implementing the statute on November 9, 2010. See 29 C.F.R. part 1635 (2011).

GINA prohibits employers from using the genetic information of applicants or employees to make employment decisions; from requesting, requiring, or purchasing genetic information of applicants or employees, except in very narrow circumstances; and from disclosing genetic information, except where specifically authorized. See 42 U.S.C. 2000ff-1(a) and (b); 2000ff-5. The statute defines genetic information to include genetic tests of individuals and their family members, as well as the manifestation of disease or disorder in family members, i.e., family medical history. See 42 U.S.C. 2000ff (4). The statute defines genetic test to mean the “analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.” See 42 U.S.C. 2000ff (7).

Exception for DNA Testing for Law Enforcement or Human Remains Identification Purposes

Your question concerns the sixth narrow exception to the general rule prohibiting employers from requesting, requiring, or purchasing genetic information. This exception allows an employer to request or require genetic information from employees where “an employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification, and requests or requires genetic information of such employer’s employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.” See 42 U.S.C. 2000ff-1(b)(6); see also 29 CFR 1635.8(b)(6). In particular, you are concerned that this exception may not cover the manufacturers of supplies used in forensic DNA analysis, meaning that such employers are subject to the general prohibition against requesting, requiring, or purchasing genetic information of applicants and employees.

First, you suggest that forensic DNA analysis is sufficiently different from other types of genetic testing to fall outside the definition of “genetic test” provided by Title II of GINA. As noted above, GINA defines genetic testing to mean “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.” See 42 U.S.C. 2000ff (7). In the preamble to the final regulation, we explained that we coordinated closely with experts at the National Human Genome Research Institute (NHGRI) when developing additional guidance regarding the term “genetic test,” as well as several other terms used in GINA that are not found in other employment discrimination statutes. See 75 Fed. Reg. 68912, 68914 (November 9, 2010). Upon receiving your inquiry, we again consulted with experts at NHGRI, who confirmed that forensic DNA analysis constitutes a genetic test. Additionally, the fact that Congress included an exception specifically permitting forensic DNA analysis suggests that it constitutes genetic testing that would be prohibited in the absence of the exception.

You further state that applying the DNA testing exception to manufacturers of supplies used in forensic DNA analysis is consistent with the spirit and purpose of the exception -- to allow forensic labs to function. As noted in the preamble to the final regulation, the DNA testing exception is a very limited one. See 75 Fed. Reg. 68912, 68936 (November 9, 2010). The specific terms of both the statute and the regulation state that the exception applies to employers that conduct DNA analysis “for law enforcement purposes as a forensic laboratory or for purposes of human remains identification,” 42 U.S.C. 2000ff-1(b)(6), 29 CFR 1635.8(b)(6), without any reference to manufacturers of the supplies used in such analysis.

Interpreting GINA to allow manufacturers of supplies used in DNA forensic analysis to acquire genetic information under the DNA testing exception might well constitute a reasonable interpretation of the statutory exception, but the issue you have identified was not raised during the public comment period on the regulation implementing Title II of GINA. Nor is there any legislative history to indicate that it was contemplated during the drafting of the statute. The Commission has not taken a position on this issue.

We hope this information is helpful. Please note that this is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC.

Sincerely,

Kerry Leibig
Senior Attorney Advisor

This page was last modified on September 17, 2012.

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