Connecticut Woman Files First GINA Claim

Posted on April 29, 2010 by Joseph Lazzarotti

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).

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GINA Effective November 21, 2009, But EEOC Final Regulations Remain Under Review

Posted on November 20, 2009 by Joseph Lazzarotti

914335The Genetic Information Nondiscrimination Act (GINA) [pdf], signed into law in May 2008, prohibits discrimination by health insurers and employers based on individuals’ genetic information. Genetic information includes the results of genetic tests to determine whether someone is at increased risk of acquiring a condition (such as some forms of breast cancer) in the future, as well as an individual’s family medical history. It is family medical history information that presents the biggest challenge for employers.

In its announcement about the effective date of the regulations, the Equal Employment Opportunity Commission Acting Chair Stuart J. Ishimaru writes: 

GINA affirms the principle central to all employment discrimination laws – that all people have the right to be judged according to their ability to do a job, not on stereotypical assumptions . . . No one should be denied a job or the right to be treated fairly in the workplace based on fears that he or she may develop some condition in the future.

Specifically, the law prohibits the use of genetic information in making employment decisions, restricts the acquisition of genetic information by employers and others, imposes strict confidentiality requirements, and prohibits retaliation against individuals who oppose actions made unlawful by GINA or who participate in proceedings to vindicate rights under the law or aid others in doing so. The same remedies, including compensatory and punitive damages, are available under Title II of GINA as are available under Title VII of the Civil Rights Act and the ADA.

Acting Vice Chair Christine Griffin said,

Title II of GINA is an ideal complement to the ADA Amendments Act. With both laws now effective, American workers are protected if they experience discrimination because of their disability or because of impairments they may develop.

To date, employers’ only regulatory guidance for the employment provisions of GINA (Title II) is a Notice of Proposed Rulemaking, published by the EEOC March 2, 2009. For health plans, which are subject to Title I of GINA, interim final regulations become effective for plan years beginning on and after December 7, 2009.

Employers should be reviewing their employment practices and health plans and wellness plans for compliance with GINA as soon as possible.

Click here for more information about how GINA affects employers.

Click here for more information about how GINA affects health plans. 

Click here for more information about how GINA affects wellness programs.

Click here for information about the new Equal Employment Opportunity Poster that includes information about GINA.

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