42 U.S.C. § 2000ff — Definitions

Page 5338 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000ff 3 So in original. Probably should be ‘‘subparagraph (A)—’’. (B) A thorough description of the data mining technology that is being used or will be used, including the basis for determining whether a particular pattern or anomaly is indicative of terrorist or criminal activity. (C) A thorough description of the data sources that are being or will be used. (D) An assessment of the efficacy or likely efficacy of the data mining activity in pro- viding accurate information consistent with and valuable to the stated goals and plans for the use or development of the data min- ing activity. (E) An assessment of the impact or likely impact of the implementation of the data mining activity on the privacy and civil lib- erties of individuals, including a thorough description of the actions that are being taken or will be taken with regard to the property, privacy, or other rights or privi- leges of any individual or individuals as a re- sult of the implementation of the data min- ing activity. (F) A list and analysis of the laws and reg- ulations that govern the information being or to be collected, reviewed, gathered, ana- lyzed, or used in conjunction with the data mining activity, to the extent applicable in the context of the data mining activity. (G) A thorough discussion of the policies, procedures, and guidelines that are in place or that are to be developed and applied in the use of such data mining activity in order to— (i) protect the privacy and due process rights of individuals, such as redress pro- cedures; and (ii) ensure that only accurate and com- plete information is collected, reviewed, gathered, analyzed, or used, and guard against any harmful consequences of po- tential inaccuracies. (3) Annex (A) In general A report under subparagraph (A) 2 shall in- clude in an annex any necessary— (i) classified information; (ii) law enforcement sensitive informa- tion; (iii) proprietary business information; or (iv) trade secrets (as that term is defined in section 1839 of title 18). (B) Availability Any annex described in clause (i)— 3 (i) shall be available, as appropriate, and consistent with the National Security Act of 1947 [50 U.S.C. 3001 et seq.], to the Com- mittee on Homeland Security and Govern- mental Affairs, the Committee on the Ju- diciary, the Select Committee on Intel- ligence, the Committee on Appropriations, and the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Homeland Security, the Committee on the Judiciary, the Perma- nent Select Committee on Intelligence, the Committee on Appropriations, and the Committee on Financial Services of the House of Representatives; and (ii) shall not be made available to the public. (4) Time for report Each report required under subparagraph (A) 2 shall be— (A) submitted not later than 180 days after August 3, 2007; and (B) updated not less frequently than annu- ally thereafter, to include any activity to use or develop data mining engaged in after the date of the prior report submitted under subparagraph (A).2 (Pub. L. 110–53, title VIII, § 804, Aug. 3, 2007, 121 Stat. 362.) Editorial Notes REFERENCES IN TEXT The National Security Act of 1947, referred to in sub- sec. (c)(3)(B)(i), is act July 26, 1947, ch. 343, 61 Stat. 495, which was formerly classified principally to chapter 15 (§ 401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in Title 50, and is now classified principally to chapter 44 (§ 3001 et seq.) of Title 50. For complete classification of this Act to the Code, see Tables. CHAPTER 21F—PROHIBITING EMPLOYMENT DISCRIMINATION ON THE BASIS OF GE- NETIC INFORMATION Sec. 2000ff. Definitions. 2000ff–1. Employer practices. 2000ff–2. Employment agency practices. 2000ff–3. Labor organization practices. 2000ff–4. Training programs. 2000ff–5. Confidentiality of genetic information. 2000ff–6. Remedies and enforcement. 2000ff–7. Disparate impact. 2000ff–8. Construction. 2000ff–9. Medical information that is not genetic infor- mation. 2000ff–10. Regulations. 2000ff–11. Authorization of appropriations. § 2000ff. Definitions In this chapter: (1) Commission The term ‘‘Commission’’ means the Equal Employment Opportunity Commission as cre- ated by section 2000e–4 of this title. (2) Employee; employer; employment agency; labor organization; member (A) In general The term ‘‘employee’’ means— (i) an employee (including an applicant), as defined in section 2000e(f) of this title; (ii) a State employee (including an appli- cant) described in section 2000e–16c(a) of this title; (iii) a covered employee (including an applicant), as defined in section 1301 of title 2; (iv) a covered employee (including an ap- plicant), as defined in section 411(c) of title 3; or (v) an employee or applicant to which section 2000e–16(a) of this title applies. Page 5339 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000ff (B) Employer The term ‘‘employer’’ means— (i) an employer (as defined in section 2000e(b) of this title); (ii) an entity employing a State em- ployee described in section 2000e–16c(a) of this title; (iii) an employing office, as defined in section 1301 of title 2; (iv) an employing office, as defined in section 411(c) of title 3; or (v) an entity to which section 2000e–16(a) of this title applies. (C) Employment agency; labor organization The terms ‘‘employment agency’’ and ‘‘labor organization’’ have the meanings given the terms in section 2000e of this title. (D) Member The term ‘‘member’’, with respect to a labor organization, includes an applicant for membership in a labor organization. (3) Family member The term ‘‘family member’’ means, with re- spect to an individual— (A) a dependent (as such term is used for purposes of section 1181(f)(2) of title 29) of such individual, and (B) any other individual who is a first-de- gree, second-degree, third-degree, or fourth- degree relative of such individual or of an in- dividual described in subparagraph (A). (4) Genetic information (A) In general The term ‘‘genetic information’’ means, with respect to any individual, information about— (i) such individual’s genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or dis- order in family members of such indi- vidual. (B) Inclusion of genetic services and partici- pation in genetic research Such term includes, with respect to any individual, any request for, or receipt of, ge- netic services, or participation in clinical re- search which includes genetic services, by such individual or any family member of such individual. (C) Exclusions The term ‘‘genetic information’’ shall not include information about the sex or age of any individual. (5) Genetic monitoring The term ‘‘genetic monitoring’’ means the periodic examination of employees to evaluate acquired modifications to their genetic mate- rial, such as chromosomal damage or evidence of increased occurrence of mutations, that may have developed in the course of employ- ment due to exposure to toxic substances in the workplace, in order to identify, evaluate, and respond to the effects of or control ad- verse environmental exposures in the work- place. (6) Genetic services The term ‘‘genetic services’’ means— (A) a genetic test; (B) genetic counseling (including obtain- ing, interpreting, or assessing genetic infor- mation); or (C) genetic education. (7) Genetic test (A) In general The term ‘‘genetic test’’ means an analysis of human DNA, RNA, chromosomes, pro- teins, or metabolites, that detects genotypes, mutations, or chromosomal changes. (B) Exceptions The term ‘‘genetic test’’ does not mean an analysis of proteins or metabolites that does not detect genotypes, mutations, or chromo- somal changes. (Pub. L. 110–233, title II, § 201, May 21, 2008, 122 Stat. 905.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 110–233, title II, § 213, May 21, 2008, 122 Stat. 920, provided that: ‘‘This title [enacting this chapter] takes effect on the date that is 18 months after the date of enactment of this Act [May 21, 2008].’’ SHORT TITLE Pub. L. 110–233, § 1(a), May 21, 2008, 122 Stat. 881, pro- vided that: ‘‘This Act [enacting this chapter, sections 300gg–53 and 1320d–9 of this title, and section 9834 of Title 26, Internal Revenue Code, amending sections 300gg–1, 300gg–21, 300gg–22, 300gg–61, 300gg–91, and 1395ss of this title, sections 9802 and 9832 of Title 26, and sec- tions 216, 1132, 1182, and 1191b of Title 29, Labor, and en- acting provisions set out as notes under this section, sections 300gg–1, 1320d–9, and 1395ss of this title, section 9802 of Title 26, and sections 216 and 1132 of Title 29] may be cited as the ‘Genetic Information Non- discrimination Act of 2008’.’’ SEVERABILITY Pub. L. 110–233, title III, § 301, May 21, 2008, 122 Stat. 920, provided that: ‘‘If any provision of this Act [see Short Title note above], an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitu- tional, the remainder of this Act, the amendments made by this Act, and the application of such provi- sions to any person or circumstance shall not be af- fected thereby.’’ FINDINGS Pub. L. 110–233, § 2, May 21, 2008, 122 Stat. 881, as amended by Pub. L. 111–256, § 2(j), Oct. 5, 2010, 124 Stat. 2644, provided that: ‘‘Congress makes the following findings: ‘‘(1) Deciphering the sequence of the human genome and other advances in genetics open major new oppor- tunities for medical progress. New knowledge about the genetic basis of illness will allow for earlier de- tection of illnesses, often before symptoms have begun. Genetic testing can allow individuals to take steps to reduce the likelihood that they will contract a particular disorder. New knowledge about genetics may allow for the development of better therapies that are more effective against disease or have fewer side effects than current treatments. These advances give rise to the potential misuse of genetic informa- tion to discriminate in health insurance and employ- ment. Page 5340 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000ff–1 ‘‘(2) The early science of genetics became the basis of State laws that provided for the sterilization of persons having presumed genetic ‘defects’ such as in- tellectual disabilities, mental disease, epilepsy, blindness, and hearing loss, among other conditions. The first sterilization law was enacted in the State of Indiana in 1907. By 1981, a majority of States adopted sterilization laws to ‘correct’ apparent genetic traits or tendencies. Many of these State laws have since been repealed, and many have been modified to in- clude essential constitutional requirements of due process and equal protection. However, the current explosion in the science of genetics, and the history of sterilization laws by the States based on early ge- netic science, compels Congressional action in this area. ‘‘(3) Although genes are facially neutral markers, many genetic conditions and disorders are associated with particular racial and ethnic groups and gender. Because some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. This form of discrimination was evident in the 1970s, which saw the advent of pro- grams to screen and identify carriers of sickle cell anemia, a disease which afflicts African-Americans. Once again, State legislatures began to enact dis- criminatory laws in the area, and in the early 1970s began mandating genetic screening of all African Americans for sickle cell anemia, leading to discrimi- nation and unnecessary fear. To alleviate some of this stigma, Congress in 1972 passed the National Sickle Cell Anemia Control Act [Pub. L. 92–294, see Tables for classification], which withholds Federal funding from States unless sickle cell testing is vol- untary. ‘‘(4) Congress has been informed of examples of ge- netic discrimination in the workplace. These include the use of pre-employment genetic screening at Law- rence Berkeley Laboratory, which led to a court deci- sion in favor of the employees in that case [sic] Nor- man-Bloodsaw v. Lawrence Berkeley Laboratory (135 F.3d 1260, 1269 (9th Cir. 1998)). Congress clearly has a compelling public interest in relieving the fear of dis- crimination and in prohibiting its actual practice in employment and health insurance. ‘‘(5) Federal law addressing genetic discrimination in health insurance and employment is incomplete in both the scope and depth of its protections. Moreover, while many States have enacted some type of genetic non-discrimination law, these laws vary widely with respect to their approach, application, and level of protection. Congress has collected substantial evi- dence that the American public and the medical com- munity find the existing patchwork of State and Fed- eral laws to be confusing and inadequate to protect them from discrimination. Therefore Federal legisla- tion establishing a national and uniform basic stand- ard is necessary to fully protect the public from dis- crimination and allay their concerns about the poten- tial for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies.’’ [For meaning of references to an intellectual dis- ability and to individuals with intellectual disabilities in provisions amended by section 2 of Pub. L. 111–256, see section 2(k) of Pub. L. 111–256, set out as a note under section 1400 of Title 20, Education.] § 2000ff–1. Employer practices (a) Discrimination based on genetic information It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the com- pensation, terms, conditions, or privileges of employment of the employee, because of ge- netic information with respect to the em- ployee; or (2) to limit, segregate, or classify the em- ployees of the employer in any way that would deprive or tend to deprive any employee of em- ployment opportunities or otherwise adversely affect the status of the employee as an em- ployee, because of genetic information with respect to the employee. (b) Acquisition of genetic information It shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee except— (1) where an employer inadvertently re- quests or requires family medical history of the employee or family member of the em- ployee; (2) where— (A) health or genetic services are offered by the employer, including such services of- fered as part of a wellness program; (B) the employee provides prior, knowing, voluntary, and written authorization; (C) only the employee (or family member if the family member is receiving genetic services) and the licensed health care profes- sional or board certified genetic counselor involved in providing such services receive individually identifiable information con- cerning the results of such services; and (D) any individually identifiable genetic information provided under subparagraph (C) in connection with the services provided under subparagraph (A) is only available for purposes of such services and shall not be disclosed to the employer except in aggre- gate terms that do not disclose the identity of specific employees; (3) where an employer requests or requires family medical history from the employee to comply with the certification provisions of section 2613 of title 29 or such requirements under State family and medical leave laws; (4) where an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical data- bases or court records) that include family medical history; (5) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if— (A) the employer provides written notice of the genetic monitoring to the employee; (B)(i) the employee provides prior, know- ing, voluntary, and written authorization; or (ii) the genetic monitoring is required by Federal or State law; (C) the employee is informed of individual monitoring results; (D) the monitoring is in compliance with— (i) any Federal genetic monitoring regu- lations, including any such regulations that may be promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), or