GINA Is Only Part of the Employment Law Puzzle

Recently the Genomics Law Report discussed a legal action brought by an employee alleging she was dismissed from her job when her employer learned of her genetic test results. The claim is that the employer’s action was in violation of the Genetic Information Nondiscrimination Act (GINA), and is the first publicly reported action of its kind. As GINA, which was enacted in 2008 and is still being implemented by regulatory agencies, becomes an established part of the legal landscape, more claims are bound to follow. The following article discusses a hypothetical set of facts that raise questions for an employer under GINA as well as other employment laws.

Another Monday morning, another administrative headache. Your marketing VP has taken fifteen minutes complaining – again – about Julie. In short, her performance has been in the tank for weeks. She’s missed numerous internal meetings and deadlines, and customer feedback has gone from highly favorable to “please send someone else next time, if there is a next time.”

Calling up a summary of recent performance reviews, you see you’ve rated her performance as “superior” across the board in each of the three semiannual reviews you’ve delivered, the last just eight months ago. You still regret how awkwardly you fumbled through your single significant encounter with her since then. Finding her sobbing in the staff breakroom after hours one evening, a sheaf of what appeared to be WebMD information spread out in front of her, you asked if there was anything you could do to help. Hastily gathering up her papers, she said she was just “researching her family tree,” and hurried out. You opted not to follow up with her, and until now had put the incident out of mind.

With memories of the legal claims that flew in the wake of your last snap decision to terminate a senior employee, you dial your outside employment counsel. You try to be meticulous in portraying the situation to counsel as you understand it, avoiding assumptions and resisting your tendency to let your frustration with recent performance color your assessment of potential. Counsel’s questions quickly focus on what may be behind the decline in Julie’s performance. To you, counsel seems oddly focused on your brief encounter with Julie in the breakroom.

Your thirty-minute call with counsel ends with her indication that she needs to look at a couple of legal resources and get back to you. Just before lunch, counsel calls back. The two of you are on the phone for a good hour this time. At its conclusion, you feel as if you’ve just gone through some sort of employment law boot camp, as follows:

Counsel’s ultimate advice is that you and your human resources executive should meet with Julie as soon as possible (counsel stresses that because any performance-related discussion with Julie may become a subject of litigation, it is important that you not conduct any such discussion alone). You should lay out your performance concerns in detail, stressing – as you have assured counsel is the case – that those performance concerns render Julie currently ineffective at her assigned tasks, and indeed make her a detriment to company success. Prepare an action plan to present to Julie that assumes she has no health condition that would affect her performance, and be prepared to impose the plan if Julie does not herself raise concerns about her ability to meet expectations.

If Julie does identify some health issue, whether her own or that of a family member, that she associates with her performance issues – and counsel cautions that Julie may remain tight-lipped, or may disclose any number of possible personal issues that may or may not implicate legal considerations – counsel advises you to hear her out, think carefully, especially about GINA, before asking any follow-up questions that might encourage Julie to disclose genetic information, and to take careful notes. If the issues identified appear even potentially related to the legal minefields counsel has delineated, you should advise Julie that you will need to evaluate the information she has provided and get back to her. Getting back to her will occur against the backdrop of further legal evaluation, possibly including more follow-up about the details of the issues Julie identifies.


1NOTE TO READERS: The federal laws discussed above apply to most private employers in the United States. Many states also have laws that could be implicated in a situation like the one depicted here. An employment contract between Julie and her employer, Julie’s membership in a labor union, or the terms of a company handbook or policy manual might also affect the legal analysis of the situation. Be sure to take account of any state law or other legal consideration that may apply in evaluating how to respond to a particular employment situation.

Filed under: Badges, GINA, Industry News, Legal & Regulatory, Pending Regulation