Equal Employment Opportunity Restoration Act of 2016 (HR 5692, 114th Congress)
What it does
Restores group actions for claims arising under the Civil Rights Act of 1964, the Disabilities Act of 1990, the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act of 2008.
The Equal Employment Opportunity Restoration Act of 2016 (H.R. 5692) aims to restore employees’ ability to bring legal challenges against discriminatory or subjective employment practices as a group (known as a “class action” lawsuit). A subjective employment practice is defined in the bill as an employer’s policy to allow supervisors or managers to make personnel decisions in an unguided manner.
The bill allows for groups to file suit, among other employment laws, under the Genetic Information Nondiscrimination Act of 2008 (GINA; 42 U.S.C. 2000ff et seq.) GINA protects citizens from employment and health insurance discrimination stemming from their genetic information, such as results from a genetic test. GINA also forbids employers from requesting to know if an employee has had a genetic test in the past.
Under the Equal Employment Opportunity Restoration Act, employees can file suit as a group if their employer is:
- Discriminating against the group’s common genetic information, which would be in violation of GINA;
- Discriminating against the group in other manners that would be in violation of the other listed employment laws; or,
- Using subjective employment practices against the group.
<p>H.R. 5692 allows a group of employees to file suit against their employer if that group shares a genetic condition and believes their employer is discriminating against them on the basis of that genetic condition. For example, if a group of employees all have sickle cell anemia, a genetic disease, and can prove that their employer has discriminated against them because they have the disease, those employees could file a class action suit against their employer under this bill. In short, H.R. 5692 extends GINA’s protections to a group of employees.</p>
<p>Past court decisions have shown that class action suits have been the most successful way to enforce discrimination laws in the workplace. However, a recent Supreme Court case has made it difficult for employees to file suit as a group. In <em>Wal-Mart Stores, Inc. v. Dukes </em>(<a href="https://www.supremecourt.gov/opinions/10pdf/10-277.pdf">564 U.S. __ (2011)</a>), the Supreme Court examined a class action suit filed by over 1.5 million women who had worked for Wal-Mart stores and claimed that Wal-Mart discriminated against them because of their gender. The Supreme Court ruled that the group of women could not file a class action case because each woman’s pay and promotion situation is different and would have to be examined individually. H.R. 5692 directly cites this case and alludes that the bill’s purpose is to re-enable groups to bring class action suits, despite the Supreme Court’s ruling.</p>
Genes are the basic physical and functional units of heredity. Individuals inherit one copy of a gene from each their mother and their father, and it is this combination of information that yields an individual’s physical and biological traits. However, the information contained in genes occasionally leads to health problems (known as genetic diseases) that the individual could face in the future. Genetic diseases can arise either from a novel mutation in genetic material or by receiving a hereditary disease from a parent. Genetic testing, the process of determining portions of one’s genetic sequence, provides information that helps to identify an individual’s risk to develop a genetic disease.
In the terms of GINA, genetic information is defined as information from an individual’s genetic tests and the genetic tests of the individual’s family members (i.e., family history). This definition includes family history so as to prevent consideration of hereditary conditions; a family member’s genetic test can be used to determine if a related individual is likely to develop a disease or condition in the future. In addition, family background could provide information about an individual’s lifestyle and home environment, both of which can cause genetic mutations.
Sara Huston 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 have not been publicly reported endorsements or opposition to this bill.