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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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the…

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Photo of Francis P. Alvarez Francis P. Alvarez

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by…

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees.

Counseling hundreds of employers each year, Mr. Alvarez spearheads the firm’s effort to provide imaginative and creative solutions to the complex array of workplace disability and health management issues faced by both large and small companies. In the Jackson Lewis tradition, Mr. Alvarez counsels clients with the goal of either avoiding litigation entirely or improving outcomes before administrative agencies, courts and juries.

Mr. Alvarez especially enjoys assisting clients conduct the “individualized assessment” required by a growing number of federal and state laws. These efforts include helping employers effectively communicate with employees and medical providers in an effort to evaluate potential risks to health and safety posed by employee injuries or illnesses. In an area of law in which there often are few bright lines, Mr. Alvarez attempts to develop practical and constructive solutions centered on the concept he calls “tc2” — taking care of employees and taking control of risks.

Recently, Mr. Alvarez has begun leading the Firm into another exciting and fast-developing area of workplace law called “health management.” Challenged by increases in health care and work injury costs, employers are searching for innovative ways to motivate employees to participate in wellness and health promotion programs. Mr. Alvarez leads a team of Jackson Lewis attorneys who advise employers on ways to implement these important programs while complying with emerging and largely undeveloped federal and state law protections.

Mr. Alvarez writes and speaks frequently on disability management issues, including legal developments under the Americans with Disabilities Act and the Family and Medical Leave Act. He has delivered presentations at major speaking engagements, including SHRM’s national and legislative conferences. Throughout his legal career, Mr. Alvarez has represented employers as lead counsel in both trial and appellate courts and has successfully tried employment discrimination claims to verdict.

Photo of Joseph J. Lynett Joseph J. Lynett

Joseph Lynett is a Principal in the White Plains, New York, office of Jackson Lewis P.C. and  and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. His practice focuses on assisting clients in meeting the legal and practical challenges…

Joseph Lynett is a Principal in the White Plains, New York, office of Jackson Lewis P.C. and  and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. His practice focuses on assisting clients in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, as well as disabled students and members of the public. Joe provides imaginative and creative solutions to the complex array of workplace disability and health management issues faced by both large and small companies.

Learn more about Joe Lynett on the Jackson Lewis website.