Genetic Discrimination Under GINA

A woman who tested positive for the breast cancer gene brought suit against her employer MXnergy for violation of the Genetic Information Nondiscrimination Act of 2008 (GINA) which President George W. Bush signed into law in May 2008. The law – which took effect in November – bars discrimination by employers and health insurers based on a person's genetic information, which also includes family health history.

After learning she carried the hereditary BRCA2 gene linked to many breast cancers – and that she had an 80 percent chance of getting the disease – Fink took two weeks of paid medical leave and underwent a double mastectomy on October 9, 2009. On January 22, 2010 she had reconstructive surgery.

The day before her second surgery,  she received a "negative and scathing" review. Two months later, on March 25, Fink was fired – because her "position was terminated," says the complaint. But Fink – a mother of two and the family's main breadwinner – says a consultant was hired to do her job while she was recuperating from her first surgery and that the woman was promoted to be her boss when Fink returned.

The article about this first lawsuit filed under GINA is posted at http://www.inc.com/news/articles/2010/05/woman-claims-genetic-discrimination.html.

So the question is what does the Genetic Information Nondiscrimination Act of 2008 (GINA) provide as far as protections for employees.  The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work.Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee.  Under GINA, it is illegal to fire, demote, harass, or otherwise “retaliate” against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.  It is also unlawful for an employer to disclose genetic information about applicants or employees. Employers must keep genetic information confidential and in a separate medical file.

So how does the Act define "genetic information"?  Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members (i.e. an individual’s family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.

The EEOC is responsible for enforcement of this Act, so presumably, if you believe a violation has occurred you may wish to file a complaint with the EEOC.  You should also speak with an employment law attorney if you believe a violation of the statute has occurred.