Genetic Testing & Genetic Information: Legislative Bill 432
The Nebraska ninety-seventh legislative session included the introduction of
Legislative Bill 432. This legislation relates in part to the use of genetic
testing and genetic information in the workplace. The proposed legislation
covers the use of genetic information by employers and employees; by insurance
companies; during criminal investigations; by those who establish paternity; by
those who screen newborn infants; and to provide requirements for laboratories
performing human genetic and forensic testing. Introduced by Pam Brown, Matt
Connealy, Jim Jenson, Pam Redfield, Nancy Thompson, and Floyd Vrtiska, Section 3
of the bill would cover any employer who has one or more employees. As proposed,
it states that an employer may not:
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Fail or refuse to hire, recruit, or promote an employee or applicant for
employment because of genetic information that is unrelated to the ability
to perform the duties of a particular job or position;
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Discharge or otherwise discriminate against an employee or applicant
with respect to compensation or the terms, conditions, or privileges of
employment, because of genetic information that is unrelated to the
ability to perform the duties of a particular job or position;
-
Limit, segregate, or classify an employee or applicant for employment in
a way which deprives or tends to deprive an employee or applicant of
employment opportunities or otherwise adversely affects the status of an
employee or applicant because of genetic information that is unrelated to
the ability to perform the duties of a particular job or position; or
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Require an employee or applicant for employment to submit to a genetic
test or to provide genetic information as a condition of employment or
promotion.
The bill, if passed, would not prohibit an employee from voluntarily
providing genetic information to the employer, and would not prohibit the
employer from using volunteered information in the interests of protecting the
employee’s health and safety.
Genetic testing may be the new frontier of discrimination in Nebraska, though
the use of genetic information has existed before recent advances in DNA coding.
The Americans With Disabilities Act (“ADA”), and the Nebraska Fair
Employment Practices Act (“FEPA”) have some jurisdictional limitations.
Under these laws, a covered employer must have 15 or more employees in order for
the NEOC to proceed with an investigation. Also, under these laws, there appear
to be limitations on whether such medical information is covered under the
definition of disability. To illustrate, a genetic marker or trait for a disease
would not be considered a disability under FEPA or ADA unless it manifests (or
is perceived to have manifested). If the person with a trait for sickle cell
does not have sickle cell, that person does not have a disability or a record of
disability. If the person does have sickle cell, they may not be perceived as
being disabled if the condition itself is not a disabling condition. (Many
persons with this disease are able to perform major life activities with little
or no mitigating measures.) This bill, if passed, would be more expansive in
providing legal guidelines for the use of genetic tests and genetic information
when there is no underlying medical condition or impairment, but where the
employer believes, hypothetically, the person may accrue sick days and exhaust
medical insurance benefits because of the potential for a medical impairment.
Former President Bill Clinton signed Executive Order 13145 for federal
employees on February 8, 2000. In part, it states, “...the policy of the
federal government is to provide equal employment opportunity to all qualified
persons. Federal policy prohibits a department or agency from discharging,
failing to hire, or otherwise discriminating against a covered individual with
respect to the individual’s compensation and terms, conditions, and privileges
of employment based on the person’s protected genetic information, or the
person’s request for, or receipt of, genetic services. Federal policy also
prohibits a department or agency from limiting, segregating, or classifying its
employees based on protected genetic information.”
The Equal Employment Opportunity Commission has policy guidance on Executive
Order 13145 Prohibiting Discrimination in Federal Employment Based on Genetic
Information about: the results of an individual’s test, and the genetic test
of that person’s family members; and information about the occurrence of
disease, or medical condition or disorder in family members of the individual.
Paul Steven Miller, J.D., Commissioner with the U.S. Equal Employment
Opportunity Commission, stated, “If employers are permitted to base personnel
decisions on genetic information, people will be unfairly barred or removed from
working for reasons unrelated to their ability to perform their jobs. In
addition, people will be reluctant to take advantage of the growing array of
genetic testing that can identify their vulnerability to specific diseases and
may prevent early treatment because of a fear that employers will misuse the
genetic information or draw inappropriate inferences from an individual’s
request for testing.” *
The NEOC will continue to participate in the enactment of a bill that would
address such discrimination in the workplace. The State of Nebraska is otherwise
substantially equivalent to the federal government in its anti-discrimination
laws.
reported by Gretchen Eure
*Is There a Pink Slip in My Genes? Genetic Discrimination in the Workplace, 3
University of Maryland Journal of Health Care Law and Policy 224 (Summer 2000)
Adkins Loses on Appeal: FEPA Charge was
Time-Barred
(NEOC charge filing procedures are impacted)
Appellant Kenneth D. Adkins had filed a claim against Burlington
Northern Santa Fe Railroad Company. The amended petition filed June 12, 1997,
contained allegations that he was not hired for an open position because of his
race, and because of retaliation for participating in protected activity. He
alleged that on December 15, 1994, he was interviewed by managers who asked him
about his participation in a 1983 class action lawsuit against the company.
Adkins alleged he was more qualified for the position than at least one of the
successful candidates.
The district court had ordered that Adkins’ claim was time
barred, because it was not filed in court within three hundred days of the date
of harm. The court stated that the applicable statute was the Nebraska Fair
Employment Practice Act.
Under Section 48-1118(2) of the Nebraska Fair Employment
Practice Act, the time period for a Complainant to file a discrimination claim
is 300 days from the date of harm. The NEOC, by statute, does not have
jurisdiction to investigate charges whose last date of harm is more than 300
days from the time the charge is received in our office.
The appellate court affirmed that FEPA, rather than the Nebraska
Revised Statute 25-212 (Reissue 1995) (which allows up to four years for filing
such a claim if there is no statute of limitations) is the appropriate statute
in deciding how much time a person has to file a claim. Adkins had filed his
claim under state statute 20-148, which contains no statute of limitations and
authorizes claims suits for deprivations of rights, privileges, or immunities
secured by the U.S. Constitution or the Constitution and laws of the State of
Nebraska.
In the analysis, the court considered that anyone who believed
their employment rights were violated, would have an immediate and expeditious
civil remedy if a timely charge was filed. The prompt resolution of those cases
emphasizes preserving good evidence, as stated by the court, which concluded
that the statute of limitations in Nebraska Revised Statute 25-212 covered any
action where there was no existing statute of limitations.
This ruling had a pronounced procedural impact on charges filed
with the NEOC. Previous to this ruling (filed August 4, 2000), the NEOC would
investigate a charge whose last date of harm occurred within 300 days of filing.
Once the Commission rendered a final determination on the case, the Complainant
would have the option to pursue a claim in the state court, up to four years
from the date of harm. Now, Complainants are told that if they want to pursue
their claim in state court, they must do so within three hundred days of the
last date of harm.
Parties to complaints filed with our office are informed of
these changes. The NEOC cannot conduct an investigation of any claim pursued in
court. If a Complainant files with the NEOC and later files in Court before the
NEOC investigation is complete, the NEOC case will be automatically dismissed.
More importantly, Complainants should be ever mindful of the
amount of time for filing a charge of discrimination whether in the state court,
or with the NEOC.
Reported by Gretchen Eure.
Picture by Lawrence Garrett
Where Are We Now?
The changes in Washington D.C. beg us to ponder the climate for
addressing discrimination issues. People who want to be prepared are assessing
recent decisions in discrimination law and making predictions based on trends
and interests. The question, “Where are we now?” is a rhetorical question
posed by many participants in the civil rights and human rights struggle.
However, the actual story for this particular question, as told to this
reporter, should be amusing.
There were two persons who liked to fish, and they came together
one weekend to locate a favorite fishing spot. Each was an employee that worked
to enforce civil rights, but they were not employed by the same agency. They had
other similarities and differences, but their love of fishing was a common
denominator.
The Black fisherman was accustomed to using expensive equipment.
The Hispanic fisherman, whose national origin was Mexico, wanted to demonstrate
the use of a stick and string to catch the fish, as was commonly used in his
native country. The contest was on. Their focus on their fishing techniques and
equipment caused them to move to another area they were unfamiliar with. In
addition, it had gotten very dark outside. “Where are we now?” asked the
Hispanic fisherman. The Black fisherman did not know. They continued to look
around. The Black fisherman, who thought he had been familiar with the area, now
asked, “Where are we now?” Obviously, they found their way in the muck and
mire of a fishing pond in the wilderness of Nebraska.
As this millennium unfolds, we need to look at where we are now
as a nation and as a community. Regardless of the methods and equipment we use
to get the prize (elimination of discrimination in Nebraska), we must rely on
everyone working together.
Inside the NEOC
For this period, as in each quarter, the NEOC recognizes the
dedication and hard work of its staff. Executive Director Al Whitaker handed
performance certificates to employees, encouraging their efforts.
Commissioner Judy-Zaiman Gotsdiner is the new
vice-chairperson of the Commission. She replaces Commissioner Rudy Peralez.
Commissioner Mel Clancy is the current Chairperson.
Sandra Campbell
Sandra Campbell wrote the award-winning play “Follow
Your Dreams”and has performed this about 200 times throughout the United
States, including the Smithsonian National Air and Space Museum. The play is a
portrayal of Bessie Coleman, First Black Female Aviator. Join the
Nebraska Military Department & The Nebraska Humanities Council in
celebrating Black History and Women’s History Month. A luncheon will be held
at 11:30 (Program starting at 12:00), March 6, 2001 in the The Spirit of 76
Armory, 1776 North 10th Street in Lincoln Nebraska. Cost is $5.00. RSVP to Pam
Makovicka, (402) 471-7511 or USPFO, 1234 Military Road, Lincoln, 68508.
Food, clothing, shelter...
| Trisha Nussbaum |
| Poster Contest April 1999 |
| Falls City High School |
Everyone needs a place to live, but no one has to tolerate
illegal discrimination. If you believe that you have been treated unfairly
because of your race, color, gender, ethnicity, religion, national origin,
familial status, or disability, contact:
| Nebraska Equal Opportunity Commission |
| P.O. Box 94934 Lincoln, Nebraska 68509-4934 |
| or call |
| 1-800-642-6112 in Lincoln |
| 1-800-382-7820 in Omaha |
| 1-800-830-8633 in Scottsbluff |
Fair Housing in Nebraska
The NEOC's Efforts to Address Discrimination
in Property Insurance Issues
By Alfonza Whitaker, Executive Director
The NEOC is in the process of establishing a systematic and concerted effort
in which we can address the issues of discrimination in property insurance which
is prohibited by the Fair Housing Act. We are interested in attacking insurance
companies that engage in pervasive discriminatory practices and maintain
underwriting standards and policies that restrict, limit, or deny homeowners
insurance in predominately African American, Latino, and integrated
neighborhoods in the State.
There are several discriminatory practices uncovered by various fair housing
groups which our agency will target:
- Charging African Americans and people of color more for the same or
inferior coverage;
- Requiring additional background information from applicants in minority
neighborhoods;
- Offering Whites replacement cost coverage, but denying it to African
Americans;
- Maintaining minimum age restrictions;
- Maintaining minimum value restrictions;
- Requiring inspection of homes in minority neighborhoods more frequently;
- Failing to return calls or provide quotes to applicants in minority
neighborhoods; and
- Referring callers from minority neighborhoods to other insurance
companies.
The results of these discriminatory practices are that thousands of homes
throughout the community are inadequately protected against loss. Therefore, we
are asking everyone to review your own insurance policy to determine whether you
have replacement coverage or fair market coverage. If you have fair market value
coverage, perhaps you are underinsured and should request that you receive a
policy for replacement coverage. If your insurance company maintains that they
do not sell this type of coverage, we want to know why not.
Also, we are asking that you advise your friends, neighbors and relatives of
these discriminatory practices and where appropriate, inquire into whether they
have experienced any such treatment.
In addition, because of the nature of litigation in the insurance industry,
it will be necessary to gather a significant amount of data over a broad period
of time in order to review the practices to obtain enough evidence to establish
a pattern if we are to establish liability in such a case. Therefore, part of
our education and outreach effort will be to inform the community of these
discriminatory practices, recruit testers and try to identify bona fide
complainants in this area.
While it may appear that replacement cost coverage is insignificant, it
should be pointed out that without replacement cost coverage, families suffering
a loss from a storm or fire would not have the money to repair the damage, buy
new furnishings, appliances and clothing. Therefore, any loss can be financially
devastating for a family and have a long-terms adverse impact on the
neighborhoods. It behooves you to review your coverage in order to make sure
that you are adequately covered, as well as advise your friends, relatives and
neighbors of this potential jeopardy.
We are in the process of formulating a strategy as well as a procedure for
documenting information based upon demographics including zip codes, etc.
In regards to zip codes, it has come to our attention that in certain parts
of the city of Omaha, people are charged different rates for insurance who live
on the same street, simply because the zip code on one side of the street is
different than the zip code on the other side of the street. Based upon these
factors, as well as the previously mentioned discriminatory practices, we feel
that it is necessary to put forth a concerted effort to investigate these
insurance practices.
Also, we solicit your support, cooperation and assistance to address and
attack this serious problem. Any comments or suggestions you may have regarding
this matter is welcomed. We look forward to making great strides in this area.
| Lindsey Howell |
| Omaha North High School |
"It’s “them” they’re afraid of. So if I come
into their neighborhood to rent an apartment or buy a house, they still
see “them”. If people could accept us as individuals, we would get a
hell of a lot farther."
- Julian Jefferson
Being Colorblind Does Not Offset
Innate Advantages of White Privilege
Article written by Robert Jensen, Guest Columnist
In an attempt to appear anti-racist, it is common for well-intentioned
white folks to say something like: “I don’t think of John as black. I
just think of him as a person.”
As a Latina colleague once told me, “god save us from
well-intentioned white people.”
In a thoroughly racialized and racist society such as the United
States, attempting to endorse the humanity of nonwhite people by
pretending they have no color is not a sign that one has moved beyond
race. Rather, it indicates that one is stuck knee-deep in the culture’s
deeply embedded racism. Why?
Who makes such statements? I have never had a nonwhite person say to
me, “When I look at you, Bob, I don’t see a white person. I just see a
person.”
That’s because being white historically has not been associated with
degradation, dehumanization and denigration; being white does not make my
humanity problematic. To see me as fully human, nonwhite people don’t
have to strip away my whiteness because whiteness is not assumed to be
less than anything.
So although no nonwhite person has to de-race white people to treat
them as people, white people often take such de-racing to be evidence of
having transcended racism. This clamor for colorblindness is another
reflection of how far white America has to go in race relations. At this
moment in history, being colorblind is a privilege available only to white
people.
Nonwhite people do not have the luxury of pretending that color can be
ignored.
When an African-American man is stopped on the street, he has to be
conscious of what his color means to white police officers who may
associate blackness with criminality.
When a Latina interviews for a job, she has to be aware of how
racialized stereotypes about her sexuality might affect what the white man
behind the desk is thinking about her.
And when Asian-American students are in classrooms, they have to
understand how a white professor’s notion that Asians are all “good at
math” will affect perceptions of them.
This is just one of many manifestations of white privilege in the
contemporary United States. White people don’t have to worry about how
their race affects the way most people in power treat them. We are able to
walk through the world, except in isolated situations, without that
burden.
When confronted with the realities of racism and white privilege, too
many white people want to take the illusory escape route of
colorblindness. But to be blind to color in 2001 is to be truly blind.
Our goal should not be to strip away the reality of our difference, our
particularity, in favor of some abstracted human form. We are people in
our particularly. Our goal should be to understand how differences in
skin, hair and bone, to borrow from W.E.B. DuBois, shape all our lives.
That means more than celebrating the easy differences. It’s not
enough to listen to Brazilian music, appreciate Indian cuisine or include
a Kwanzaa greeting in your holiday cards. To be truly anti-racist - to
take seriously the moral imperative to confront white privilege - means
focusing not only on cultural differences but also on differences in
power.
A first step is to be honest about how deeply woven into the material
and ideological fabric of our society racism is. Just as important, I
think, is challenging the pathological individualism of this culture so
that we can see how our successes and our failures are always partly
social, not strictly individual. That means letting go of the collective
fantasy that the United States is a meritocracy with a level playing
field.
If anyone still clings to that mythology, I have two words in response:
George W.
Whatever one thinks of our new president, it is impossible not to see
in his life how race, gender and class privilege work. A mediocre student
with a string of failures in the oil business, Bush has traded all his
life on privileges that come with being a white man with family
connections. Agree or disagree with his politics, it is undeniable that
George W. Bush did not rise to one of the most powerful positions in the
world on merit. Can anyone imagine a black man with Bush’s record making
it to such a position? Or a woman of any color? Or a kid starting out in a
poor family?
That may seem harsh to some, even disrespectful. But it is, I believe,
the kind of obvious truth we have to tell if we are to make progress
toward racial justice, as well as gender and economic justice.
We white folks have to take seriously the task of understanding not
only what it means for people of color to live in a racialized and racist
world but also how the privileges that come with being white give us
advantages, some subtle and some obvious, some overt and some covert, some
material and some ideological.
It is time for white people to go beyond good intentions and begin to
face, and to tell, the truth.
Robert Jensen is a journalism professor at the University of
Texas. This article is reprinted with his permission. He may be reached
at: rjensen@uts.cc.utexas.edu.
The next Public Forum is scheduled for Columbus, Nebraska
on April 19, 2001
The Public Forum is an opportunity to learn about the
anti-discrimination laws enforced in Nebraska, and to meet the officials
of the Commission who enforce those laws.
Department of Justice News
Fargo Apartment Owners and Managers to Pay $15 Thousand
to Settle Allegations of Housing Discrimination.
Washington, D.C. - The former owners and managers of a
downtown Fargo, North Dakota apartment complex will pay $15,000 to settle
allegations that they discriminated against families with children, under
an agreement reached today with the Justice Department.
The agreement, filed in the U.S. District Court in Fargo,
resolves a lawsuit filed by the Justice Department in 1999, charging the
owners and managers of the Billmeyer Apartments discriminated against
families with children.
The suit stemmed from a complaint filed with the U.S.
Department of Housing and Urban Development (HUD) by a married couple. The
couple alleged that the owners and managers violated the federal Fair
Housing Act by discriminating against them after the husband’s son moved
in with the couple. HUD investigated the complaint and referred the matter
to the Justice Department for litigation after efforts to resolve the
matter through conciliation proved unsuccessful.
“ It has been over 30 years since the Fair Housing Act
was passed and 12 years since discrimination against families with
children under 18 was outlawed, yet discrimination against families with
children continues to be a very real problem in North Dakota and other
parts of the country,” said Bill Lann Lee, Assistant Attorney General
for Civil Rights. “This agreement sends a clear message that we will
take aggressive action against those who deny housing to families with
children.”
The complaint alleges that William Brandt, Richard Jordahl,
and Powers Properties, who owned the Billmeyer Apartments, located at 37
7th Street North, Fargo, as well as Velva Peterson, Jesse Craig, Terrace
Management Company, and NCM Properties, Inc., who managed the complex,
discriminated against a married couple after the husband's six-year-old
son moved in with them. It asserts that the defendants repeatedly told the
family that no children were allowed at the Billmeyer Apartments and that
the child would have to leave, prohibited the child from playing in common
areas of the complex, raised the family’s rent due to the presence of
the child, and otherwise treated the family less favorably than other
tenants because they had a child living with them.
In addition to the $15,000 penalty, the settlement
prohibits the owners and managers from engaging in discriminatory acts in
the future and requires them to complete an educational program concerning
fair housing law and to take other steps to prevent discrimination. The
settlement must still be approved by the court.
"Only by a union of intelligence and sympathy across the
color-line in this critical period of the Republic shall justice and right
triumph. "
- W.E.B. Du Bois, 1903
U.S. Equal Employment Opportunity
Commission
This article was released for immediate
release by the the U.S. Equal Employment Opportunity Commission on
December 7, 2000.
St. Louis - The U. S. Equal Employment Opportunity
commission (EEOC) today announced a $450,000 settlement of a wage
discrimination lawsuit against Arizona-based Swift Transportation Co.,
Inc., the third largest publicly held truck carrier nationwide. The suit,
filed in July 1999 under the Equal pay Act and Title VII of the Civil
Rights Act of 1964, charged Swift with paying six female driver managers
in its Edwardsville, Kansas, terminal less than men in the same job.
“Pay disparities for women not only violate the Equal
Pay Act and Title VII but also conflict directly with sound business
judgment, “ said EEOC Chairwoman Ida L. Castro. “Women make tremendous
contributions in today’s economy, and companies that fail to review
stale pay practices will find themselves unable to train these valuable
employees as well as risk being in breach of the federal civil rights
laws. I strongly encourage all employers to closely examine their salary
policies in order to identify and voluntarily eliminate pay discrepancies
based solely on gender.”
In the proposed Consent Decree, now pending approval of
the U.S. District Court for the District of Kansas in Kansas City, Swift
agreed to pay a total of $450,000 in backpay and damages to Pam Dishon,
Kim Harrington, Julie Pine Meek, Sheri Rice, Barbara Vaught and Sue
Matlack. The Decree provides that Swift will immediately increase the
salaries of Dishon, Harrington, Rice and Vaught, who are still employed by
the company, in order to bring their salaries in line with those of male
driver managers.
According to Robert Johnson, EEOC’s Regional Attorney in
St. Louis, this is the largest pay discrimination settlement obtained
nationwide in recent years by EEOC. “We hope that all employers,
particularly those in male-dominated industries such as trucking, get the
message that men and women must receive equal pay for doing the same work,”
he said.
Swift also agreed to prepare and publicize a policy
setting forth the factors to be relied upon by Swift’s managers in
setting initial salaries and determining the amounts of raises to be given
to driver managers. Moreover, Swift agreed to post a notice in its
Edwardsville terminal explaining the terms of the settlement and to report
to EEOC on driver manager salaries and raises for a two-year period.
In 1999, EEOC settled another sex-based discrimination
lawsuit against Swift for $529,780 in Seattle. In that case, the EEOC
challenged Swift’s policy of prohibiting female truck drivers from being
trained by male instructors. That policy resulted in delays for female
drivers in beginning their driving for the company. Swift modified its
policy to permit coed training after the EEOC filed suit.
"Fairness as well as logic requires that special
consideration be given to people who have been locked out of the economic
mainstream. "
- Andrew Young
The Nebraska Equal Opportunity Commission welcomes
your input about the NEOC UPDATE. We cannot publish or respond to
queries about particular cases that come before the Commission.
Copyright 2000, NEOC
Newsletter Editor: Gretchen Eure
Investigations Unit Director/Public Education and
Outreach
