In what appears to be the first publicly identified case of its kind, a Connecticut woman has accused her employer of violating the recently enacted federal Genetic Information Nondiscrimination Act (GINA). According to a story in the Boston Herald (discovered thanks to a tip from Matt Mealiffe), 39-year-old Pamela Fink received an elective double mastectomy last year after testing positive for mutations in her BRCA2 gene associated with an increased risk of breast cancer. Fink alleges that, despite giving her “glowing evaluations for years,” her employer, MXenergy, “targeted, demoted and eventually dismissed her when she told them of the genetic test results.”
GINA, which was passed by Congress in 2008 and took effect last year, represents the most comprehensive effort to date to regulate the use of genetic information by employers (Title II) and health care insurers (Title I). Under Section 201(a)(i) of GINA, employers with more than 15 employees may not “discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment…because of genetic information.”
The Herald notes, and I agree, that this appears to be the first publicly disclosed, EEOC-filed genetic discrimination complaint since Title II of GINA went into effect last November. It is unlikely that we will see a complete copy of Fink’s complaint, and Fink’s employer has not yet offered its own version of the facts.* If the facts are as alleged, however, this would appear to be precisely the type of employer behavior that Congress sought to prohibit when it passed GINA to “…fully protect the public from discrimination…thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies.”
As with all disputes, the most likely outcome here is a settlement, the terms of which will never see the light of day. Any other outcome might shed a first, important light on how the EEOC (and in the unlikely case of litigation, the judiciary) will apply GINA to actual workplace disputes. Either way, this is a reminder to employers and employees alike that GINA, after more than a decade spent languishing in Congress, is now the law.
* Update 4/29. An AP report quotes MXenergy company spokesman Todd Miller as “emphatically and categorically” denying Fink’s allegations, while declining to offer any further comment.
See more coverage of GINA and its implications from the Genomics Law Report here.