There have not been many cases filed under the Genetic Nondiscrimination Act of 2008 (GINA). Under this federal law, employers with 15 or more employees may not use your genetic information in the following ways:
In other words, your employer may not use genetic test results or your family health history to make decisions related to your employment. While there are times an employer may legally possess knowledge of your genetic condition, it may not use the information to make an employment decision or discriminate and must keep the information private.
November 18, 2016, Lisa O’Rourke filed a lawsuit against Tiffany & Co. (Tiffany), alleging the New York-based company discriminated against her because of her genetic predisposition for developing cancer. Ms. O’Rourke was an employee of the Rhode Island manufacturing facility where she worked as the director of strategic sourcing. Her maternal grandmother and aunt died of breast cancer, and when her mother tested positive for the gene mutation that results in an elevated risk of developing cancer, she got tested too. Ms. O’Rourke tested positive for the genetic mutation. She ultimately chose to have surgeries that her lawyer says “were life-saving.”
Ms. O’Rourke underwent operations to remove her breasts and ovaries in 2014 and alleges that she informed Tiffany she would need to undergo additional surgeries. She returned to work and scheduled her next surgery. Tiffany, O’Rourke claims, asked her to delay the procedure because she was out of Family Medical Leave Act (FMLA) time but eventually told her that they would hold her job. When she returned from that surgery, she advised Tiffany that she would need to schedule another leave for additional surgery. One month later, Tiffany informed her they were eliminating her position at the company. They offered her a different job with less responsibility and compensation which she declined.
O’Rourke will have to demonstrate to the court that Tiffany’s decision to eliminate her job was the result of discrimination and not the product of legitimate business concerns.
The lawsuit asks the court to grant punitive damages, back pay and attorney’s fees.
While there have not yet been many court cases alleging genetic discrimination under GINA, the number of claims submitted to the Equal Employment Opportunity Commission (EEOC) is growing. From 2010-2014, charges filed with the EEOC under GINA increased 60%, from 201 to 333. This increase may be partially due to the use of wellness incentive programs at many companies. The EEOC has intimated that some employers’ wellness programs discriminate against disabled individuals or those with genetic predispositions that prevent the individuals from participating in the programs. Wellness programs are currently the EEOC’s focus when it comes to enforcing GINA.
It remains to be seen how O’Rourke’s case gets resolved but it serves as a reminder to employees that genetic conditions and genetic information are protected by law. Your employer may not use your genetic information to discriminate against you.
Contact Leeds Brown Law, P.C., representing clients in New York City, Long Island, and the entire metropolitan area, if you have any questions about employment discrimination you may be experiencing. Our full-service workplace discrimination firm has decades of experience handling all types of claims under federal, state and city law. We can be reached 24/7 at 1-800-585-4658.
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