It was recently brought to my attention that last April, several news sources, including the Boston Herald and the Connecticut Business News Journal, reported that the first Genetic Information Non-discrimination Act (GINA) case has been filed with the Equal Employment Opportunity Commission (EEOC) and the Connecticut Commission on Human Rights and Opportunities in the United States. On November 21, 2009, GINA made it illegal for organizations, insurance companies and health care providers to discriminate against employees or applicants based on genetic information. This added another protected ground to the standard list of age, race, colour, creed, gender, national origin and disability, and in some states, sexual preference.
The employee’s suit claims that despite “glowing evaluations for years”, she was fired after allegedly sharing with her employer information about a genetic test and surgery she recently underwent to prevent breast cancer. The genetic testing was done in 2004 and indicated she carried the gene implicated in breast cancer. Consequently, in 2009, she opted for a preventative double mastectomy.
A spokesman for the employer, “emphatically and categorically” denies the allegations. The spokesman also said the company has a policy not to discuss personnel matters and will not comment further.
ABC News has a very detailed interview with the employee.
While the Connecticut case may be among the first under GINA, more claims are likely to follow. Some suggest that this lawsuit will be settled out of court; despite, US employers and Canadian employers with employees in the US should familiarize themselves with their legal requirements under GINA. Also, Canadian employers should note that this is an issue that may have legal and ethical ramifications in Canada in the near future.
If you want to know more about GINA, and the Canadian perspective, read my previous post on the topic.
On November 27, 2009, the Office of the Privacy Commissioner of Canada (OPC) and Genome Canada co-sponsored a policy event focusing on consent and privacy issues raised when biological samples and related information are collected from individuals – then banked for genetic research. The use of genetic information by insurance companies and employers is of particular concern to the OPC and they are investigating how this very sensitive information can be used to make decisions that can have a significant impact on individuals.
More information can be found at the Genome Canada website.
Yosie Saint-Cyr
Human Resources and Compliance Managing Editor
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