GINA (“Genetic Information Nondiscrimination Act”) is a federal law that was signed by President Bush two years ago on May 21, 2008 . It applies to employers with 15 or more employees. It was prompted by Congress’ concern that fear of being fired or treated unfairly by employers and insurers based on the results of their genetic testing would prompt employees to forego obtaining important genetic testing that they required. Accordingly, Congress passed and President Bush signed the newest of the federal anti-discrimination laws prohibiting employers from discriminating against employees based on the results of their genetic tests.

The first known case in this country to be filed under this new law exemplifies the very concerns that prompted Congress to pass this law. Pamela Fink of Fairfield, Connecticut decided to have a double mastectomy in response to discovering through genetic testing that she had the gene that made her much more prone to develop breast cancer than others. Ms. Fink worked for the MXenergy Company, a natural gas and energy supplier located in Stamford, CT. Allegedly she had been a great worker and had received glowing performance appraisals from her employer year after year. However, not long after she disclosed that she was having this voluntary double mastectomy as a precaution in light of the results of her genetic testing, everything seemed to change drastically for her at work. She began being targeted at work for poor performance causing her to be demoted and ultimately discharged from her job for poor performance.

If true, this is precisely what this new federal law was intended to prevent. Employers are required to make employment decisions based on job-related factors such as whether employees are doing a good job rather than whether the employer believes that their insurance costs will go up because an employee is likely to develop breast cancer or other diseases. This case will likely be followed closely by others to determine how the court handles such a case and what type of precedent will be created under this new federal law.

Submitted by:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
914-417-1715
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