The EEOC is seeing the first wave of claims under GINA. Title II of GINA, which went into effect in November, prohibits using genetic information in making employment decisions, restricts acquisition of genetic information by employers, and strictly limits its disclosure. Title I of GINA, which addresses the use of genetic information in health insurance, goes into full force at the end of May.
To date, the EEOC has received about 80 GINA-related claims. In one case, a Connecticut woman, Pamela Fink, has alleged that her employer violated the law when she was terminated after undergoing a preventive double mastectomy. The complaint states that Ms. Fink received consistently favorable performance reviews as a director of public relations and marketing communications at a Stamford, Connecticut-based employer. After learning she tested positive for BRCA2, the breast cancer Type 2 susceptibility protein, Ms. Fink took a medical leave to have a preventive double mastectomy last October. In January, the day before she was to have a second and final surgery related to her double mastectomy, she was given a midyear performance review that was “negative and scathing,” according to the complaint. In March, her employment was terminated and she was told her position had been eliminated. Ms. Fink claims the dramatic shift in her standing at work resulted from her revelation that she had tested positive for the BRCA2 gene. Ms. Fink said she told her employers about her genetic testing in August — shortly after her positive performance review and about two months before she had a double mastectomy as a preventative measure. When she returned from medical leave, that’s when her responsibilities began slipping away and the assessment of her work went from glowing to negative.
Employers need to make sure that their discrimination policies are updated to include genetic information. We also suggest reviewing all potential sources of genetic information, including hiring practices, employee screenings, wellness programs, and health insurance enrollment practices. A particular challenge for employers is what to do when genetic information is volunteered. One employment lawyer warns that employers have to be careful of being “set up” by employees volunteering genetic information and then alleging that was the cause of a subsequent adverse job action. While no one predicts that GINA will have the breadth or effect of other discrimination laws like Title VII of the Civil Rights Act, the ADA, or ADEA, employers must be primed for claims alleging GINA violations.