Woman Claims that She Was Terminated Based on Genetic Tests

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Interesting article in Sunday’s New York Times. The article tells the story of Pamela Fink, the former employee of MXenergy who was fired she says because she had a genetic marker that showed that she was at higher risk for developing breast cancer. After she informed her supervisors of the genetic marker and after she had a preventative double mastectomy, Ms. Fink claims that her company started giving her fewer responsibilities, then demoted her and ultimately fired her. She is now the plaintiff in what is one of the first discrimination lawsuits based on the Genetic Information Non-Discrimination Act of 2008, the first federal law that prohibits companies and health insurers from requiring genetic testing, asking for genetic information or using it against employees. I wouldn’t be surprised if her lawyer also included a claim of disability discrimination, based on a perceived disability.

Until Ms. Fink’s case, most of the 80 complaints based on violations of this law that have been filed with the EEOC since the genetic law took effect on January 1 of this year seemed to involve cases in which employers had improperly acquired or disclosed genetic information. A negative outcome of Ms. Fink’s case, according to her attorneys, discourage other workers from going for genetic testing about particular illnesses and from having surgery in response to such testing — steps that are good for their health.

This case is another reminder of the training that they need to continuously provide to their supervisors and employers. Many people are probably unaware of the Genetic Information Non-Discrimination Act of 2008 and unfamiliar with its prohibitions and requirements. Keeping your supervisors and managers up to date on the laws will help avoid situations such as this.

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