EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

GINA: FAA Medical Standards and Clearance for Air Traffic Control Specialists

April 10, 2014

TRANSMITTED VIA EMAIL

Kathy DePaepe
Department of Transportation
Federal Aviation Administration

Re: FAA Form Ophthalmological Evaluation for
Glaucoma – FAA Form 8500-14
OMB Control Number 2120-0034

Dear Ms. DePaepe:

The Equal Employment Opportunity Commission (EEOC) submits these comments in response to the Federal Aviation Administration's (FAA) request for comments concerning the renewal of the information collection referenced above. See 79 FR 8233 (February 11, 2014). This collection, titled Medical Standards and Certification, contains an ophthalmological evaluation form for glaucoma, FAA Form 8500-14. The form is completed by eye specialists as part of the evaluation of an applicant's eligibility for either an agency-issued pilot medical certificate or a medical clearance for employment in air traffic control specialist positions with the agency. When used in the employment context, line 5 of the FAA form, which asks whether the applicant has a family history of glaucoma, poses a conflict with the requirements of Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), as described below.

Background on Title II of GINA

As you know, the EEOC enforces the federal laws that prohibit employment discrimination on the basis of an individual's race, color, religion, sex, national origin, age, and disability, as well as retaliation for protected activity. On May 21, 2008, when GINA was signed into law, the EEOC was given authority to enforce an additional prohibition on employment discrimination --discrimination on the basis of genetic information. See 42 U.S.C. § 2000ff et seq. 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, including the federal government, 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)–(b), 2000ff-5. The statute defines genetic information to include not only genetic tests of individuals and their family members, but also the manifestation of disease or disorder in family members, i.e., family medical history. See 42 U.S.C. § 2000ff (4).

Although there are six exceptions to the general rule prohibiting employers from requesting, requiring, or purchasing genetic information (including family medical history), none of those exceptions apply to the request for genetic information made in FAA Form 8500-14. 

FAA Form 8500-14

The Paperwork Reduction Act Statement on the first page of the form, Information for Applicants, indicates that the information will be used to determine an applicant's eligibility for a medical certificate, medical and student pilot certificate, or "ATCS eligibility for employment." To the extent the information on the FAA Form 8500-14 is used to make pilot medical certification determinations, the requirements of Title II of GINA do not apply, as these determinations are not employment decisions. However, when the FAA Form is used for employment purposes for Air Traffic Control Specialist positions, Title II of GINA applies. The form's line 5 is a direct request for genetic information in the form of family medical history. This request violates GINA's prohibition on requesting, requiring, or purchasing genetic information, as it does not conform to any of the six exceptions to the rule. The agency should remove the inquiry concerning family history of glaucoma from the form.

We also suggest that, for this form or other FAA forms used for employment purposes that request medical information from applicants/employees or their doctors, the FAA might consider including model language from the EEOC's regulations that provides notice to applicants/employees and their doctors about prohibitions under GINA. Providing such notice would ensure that any receipt of genetic information resulting from a lawful request for medical information does not violate GINA.   For your convenience, we reproduce the model language, set forth at 29 C.F.R. § 1635.8(b)(1)(i)(B), below:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

EEOC's regulation provides that failure to give this type of notice when making a lawful request for medical information will not result in liability even if genetic information is received, where an employer can show that its request for medical information was not likely to result in the receipt of genetic information. However, by adding the model language (or similar language) to FAA forms that request medical information and are used for employment purposes, the FAA will be assured of avoiding liability under Title II of GINA.

Thank you for the opportunity to provide these comments in response to the proposed information collection. Please feel free to contact Corbett Anderson, Assistant Legal Counsel, at (202) 663-4579 or Senior Attorney Advisor Mary Kay Mauren at (202) 663-4643 if you have any questions.

Sincerely,

/s/
Peggy R. Mastroianni
Legal Counsel

This page was last modified on June 12, 2014.