Fair Employment Protection Act of 2016 (HR 5693, 114th Congress)

The Policy

What it does

Amends the Genetic Information Act of 2008 and other statutes to clarify appropriate liability standards for Federal antidiscrimination claims.

Synopsis

HR 5693 is an effort to clarify sections of the following statutes:

Broadly, HR 5693 clarifies that under these statutes, an employer’s vicarious liability in regards to workplace harassment extends to:

  • An individual with the authority to undertake or recommend tangible employment actions affecting the victim; or
  • An individual with the authority to direct the harassed employee’s daily activity.

Section 8 of HR 5693 pertains specifically to GINA. Section 8 amends sections 202 and 207(f) of GINA (42 U.S.C. 2000ff-1, 42 U.S.C. 2000ff-6) by further defining that an employer is liable for the acts of an individual who harasses an employee when:

  • The individual was authorized by the employer—
    • To undertake or recommend tangible employment actions affecting the employee; or
    • To direct the employee’s daily work activities; or
  • The negligence of the employer led to the creation or continuation of a hostile or retaliatory hostile work environment.

GINA prohibits employment discrimination based on the genetic information of an individual or their family, so any harassment stemming from this information as performed by an individual defined above would make the employer liable.

Context

<p>This bill was proposed in response to the Supreme Court decision in <a href="https://www.supremecourt.gov/opinions/12pdf/11-556_11o2.pdf" target="_blank"><em>Vance v. Ball State University</em></a>. Reversing its prior holdings, the Court limited the scope of an employer’s vicarious liability stemming from workplace harassment to only include those people with direct supervisorial authority over a harassed employee; this direct authority was defined as an individual who could take “tangible employment actions” over the subordinate. HR 5693 thus intends to broaden the definition of a supervisor and grant greater protection to workers who experience harassment from a person who merely has influence over daily activities, not just a supervisor with direct authority as prescribed in <em>Vance v. Ball</em>.</p>

The Science

Science Synopsis

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., the family history). This definition includes family history so as to prevent employers from considering hereditary conditions; a family member’s genetic test could 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.


The Debate

Endorsements & Opposition

Endorsements:

  • Senator Tammy Baldwin (D-WI) compiled a set of endorsements from other senators and representatives in a press release. Senator Baldwin herself states: “If you work hard and play by the rules you should have the opportunity to get ahead. Unfortunately, workplace harassment remains an unacceptable reality that threatens the economic security of far too many people, particularly women, working to build a better future for themselves and their families. Harassment has no place in the workplace and should never impede economic success.”
  • From the same press release, Representative George Miller (D-CA-11) said: “Hard-working Americans should not have their livelihoods threatened by harassment in the workplace. To better protect workers, the Fair Employment Protection Act reverses a recent Supreme Court decision that made it harder for victims of unlawful and insidious harassment to hold their employers accountable. By restoring strong legal protections, this bill will help ensure that employees who work hard and play by the rules receive the justice they deserve and thrive in their workplace.”

Opposition:

  • At present, there has not been publicly reported opposition to this bill.