Administrative Changes and Clauses to USAID Acquisition Regulation (Final Rule)
What it does
Amends multiple elements of the United States Agency for International Development Acquisition Regulation (AIDAR), including creating a requirement that all contracts include a nondiscrimination clause, which addresses genetic information.
The United States Agency for International Development (USAID) final rule (noticed via 81 Federal Register 48715) makes numerous changes to the AIDAR, published as Chapter 7 of Title 48 within the Code of Federal Regulations. These rules supplement the Federal Acquisition Regulations (FAR), which govern the procurement processes for most executive agencies.
Two of these changes require all USAID solicitation and resulting contracts to include a nondiscrimination clause that specifically includes genetic information.
The first modification creates the new Nondiscrimination section (752.222-71), which is placed immediately following USAID’s Disability Policy (752.222-70). The full clause states:
FAR part 22 and the clauses prescribed in that part prohibit contractors performing in or recruiting from the U.S. from engaging in certain discriminatory practices.
USAID is committed to achieving and maintaining a diverse and representative workforce and a workplace free of discrimination. Based on law, Executive Order, and Agency policy, USAID prohibits discrimination in its own workplace on the basis of race, color, religion, sex (including pregnancy and gender identity), national origin, disability, age, veteran’s status, sexual orientation, genetic information, marital status, parental status, political affiliation, and any other conduct that does not adversely affect the performance of the employee. USAID does not tolerate any type of discrimination (in any form, including harassment) of any employee or applicant for employment on any of the above-described bases.
Contractors are required to comply with the nondiscrimination requirements of the FAR. In addition, the Agency strongly encourages all its contractors (at all tiers) to develop and enforce nondiscrimination policies consistent with USAID’s approach to workplace nondiscrimination as described in this clause, subject to applicable law.
The second update revises a section (722.810 Solicitation provisions and contract clauses) within USAID’s Equal Employment Opportunity specifications, requiring that a contracting officer must insert the new Nondiscrimination clause, above, into all solicitations and resulting contracts.
The final rule also addresses 1) other contractor requirements related to foreign taxes, approval and registration processes, and 2) child safeguarding standards.
<li>The <a href="https://www.genome.gov/pages/policyethics/geneticdiscrimination/ginainfo... Information Nondiscrimination Act</a> (GINA) forbids discrimination on the basis of genetic information when it comes to any and all aspects of employment (hiring, firing, pay, job assignments, promotions, etc.).</li>
<li>GINA also prohibits employee harassment based on genetic information. The harassment is illegal when it creates a hostile or offensive work environment.</li>
<li>Except for <a href="https://www.eeoc.gov/laws/types/genetic.cfm">limited situations</a>, employers and other entities “covered” by Title II of GINA (employment agencies, labor organizations and joint labor-management training and apprenticeship programs) are prohibited from obtaining employees’ genetic information.</li>
<li>Employers and GINA “covered entities” are also prohibited from disclosing genetic information about applicants, employees, or members. Genetic information is considered confidential and must be kept in a separate medical file. </li>
Genetic Information is considered to include information about an individual’s (and his/her family’s):
- Genetic tests;
- Diseases/disorders that run in the family (medical history);
- Individual’s request for/receipt of genetic services; and
Participation in clinical research that involves genetic services by an individual or family member, and genetic information of a fetus or embryo.
Sara Katsanis, MS is a Duke University instructor in the Duke Initiative for Science & Society. Her research focuses on policies for DNA testing in law enforcement and human rights contexts.
Endorsements & Opposition
At present, there has not been publically reported endorsement or opposition to this final rule. However, there have been general endorsements and opposition to GINA, including:
- Genetic Alliance led the Coalition for Genetic Fairness, which worked for over 12 years to pass GINA. The alliance states that GINA is “a victory for us all,” “because no one is exempt from [genetic information discrimination]—each of us carries a number of mutated genes—genetic discrimination and its related privacy concerns should be profoundly important to us all.”
- Francis Collins issued a statement of support on behalf of the National Human Genome Research Institute on May 1, 2008: “This bill could just as well be known as the bill to protect people with DNA, and that would be all of us! Since each of us has dozens of genetic variations that may put us at risk for disease, we all would have had a reason to be concerned about the possible misuse of genetic information. With this act, Americans won't have to worry about their jobs or their health insurance being taken away because of the genes they inherited.”
- Tera Eerkes, founder of a now defunct personal genetic testing company stated that GINA doesn’t offer complete protection. “This measure does not prevent genetic discrimination against people when they are applying for life insurance, long term care, or disability insurance.” It’s also unclear how GINA will interact with state-level discrimination policies. Further, the law does not address “possible institutional misuse of genetic information.”
- Scholars have recently argued that GINA should be strengthened to enhance worker protections and “further delineate the legal boundaries of the employer’s power to make hiring decisions on the basis of genetic information.”