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Workplace Privacy, Data Management & Security Report

Connecticut Woman Files First GINA Claim

Co-authors: Frank Alvarez, Michael Soltis, and Joseph Lynett

ABC News has reported that a Fairfield, Connecticut woman, Pamela Fink, yesterday filed claims with the U.S. Equal Employment Opportunity Commission and the Connecticut Commission on Human Rights and Opportunities that her employer violated GINA when it terminated her employment on March 25, 2010. The federal Genetic Information Nondiscrimination Act (GINA) (pdf), which went into effect for employment law purposes on November 21, 2009, prohibits discrimination by employers on the basis of an employee’s “genetic information.” Final EEOC regulations on GINA have not been released.

According to the ABC and other news outlets, after genetic tests and family history indicated Ms. Fink was at risk for breast cancer, she underwent a preemptive double mastectomy. She alleges the termination of her employment, approximately five months after her procedure, was the result of informing her employer of her genetic test results that showed she carried the BRCA2 gene. Under GINA, “genetic information” includes a genetic test (defined in the statute as an “analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes”).

Her complaint is believed to be the first in the country brought under the employment provisions of GINA. It surely will be watched closely as employers begin to understand the scope of protections for employees under this new law. Employers are awaiting final EEOC regulations, which they hope will clarify the requirements under GINA, among them Title II, Section 202 of the statute. That section provides:

(a) DISCRIMINATION BASED ON GENETIC INFORMATION.—It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or

(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

The result of Ms. Fink’s case will not be known for some time. Employers, meanwhile, need to think about how this law affects their employment practices, as well as the group health plans (including any wellness programs) they sponsor for employees. (Title I of GINA specifically applies to group health plans.) We have written extensively on this topic here and elsewhere (pdf).