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Working In These Times

Monday, Jun 7, 2010, 11:21 am

Will Washington Enforce the Genetic Non-Discrimination Act?

BY Lewis Maltby

First-ever case tests 2008 law banning employers from discriminating based on workers' genetic profiles

Pamela Find didn't want to make history; she just didn't want to die of cancer. But when her employer fired her because she carried a gene linked to breast cancer, Fink became the first American worker to file an official federal complaint under the Genetic Information Non-Discrimination Act (GINA), which Congress passed in 2008.

The legislation, enacted after decades of pressure from the National Workrights Institute (the organization I lead) and other public interest organizations, prohibits employment discrimination based on genetics, and bans employer access to employees' (or prospective employees') genetic information.

Of course, as scientists continue to identify specific genes linked to breast cancer, Alzheimer's and Huntington's disease, that genetic information may ultimately be the first step to finding a cure for deadly illnesses. Imagine a world in which no one has to watch a parent succumb to Alzheimer's.

But the immediate effect of new genetic knowledge could be employee discrimination on an unprecedented scale.

When the cost of testing gets low enough, employers might begin testing every applicant and refuse to hire those carrying genes linked to deadly (read: costly) diseases. In an era when employers are doing everything possible to cut healthcare costs, many employers may avoid hiring someone they consider a financial time bomb.

So Congress acted. But GINA didn't stop Fink's employer, MXenergy, from firing her. After one of her two sisters was diagnosed with breast cancer, Fink took a genetic test to see if she too was at risk. The test came back positive. When her other sister contracted breast cancer, in October 2009 Fink made the most painful decision of her life—to have a preventive double mastectomy.

She explained to her employer, a natural gas retailer based in Stamford, Conn., that she would be out of work for medical treatment and explained the reason. Fink returned to work in November, and the next month MXenergy demoted her—despite glowing performance reviews prior to her surgery.

Then in January 2010, she took two weeks off for a follow-up procedure, returning to work in February. Just over one month after that, MXenergy fired her.

Fink made the common mistake of believing that because she had a good relationship with her boss and had been a valued employee for years, the company would treat her fairly. It's an easy mistake to make. Employers talk a great deal about employees being "partners" or "associates" and train managers in people skills to increase productivity.

But the bottom line is that every company's ultimate goal is to make money. The fact that your boss likes you is no protection when the company can save money by firing you.

Fink responded to her firing in April by filing a complaint with the federal Equal Employment Opportunity Center (EEOC). But that action doesn't ensure justice—MXenergy has hired a powerhouse corporate law firm to fight the case, and the EEOC takes less than 1 percent of the complaints it receives to court. Instead, it often negotiates a settlement with employers to resolve cases.

Critics charge that the agency is often more interested in getting the employee to accept whatever the employer offers than getting the employer to make a fair offer. In other instances, the EEOC will determine that the employee was truly a victim of discrimination but decline to take the case to court, instead gives the employee a "right to sue letter" allowing her to litigate at her own expense.

Since Fisk's case is the first of its kind, the manner in which the EEOC handles it will send a strong message to employers about how serious the agency is about enforcing GINA.

Anyone who cares about genetic discrimination—and workers' rights in general—should send an e-mail to EEOC Commissioner Jacqueline Berrien (Jacqueline.Berrien@EEOC.gov) urging her to take the case to court. Or—even better—go to the following link and send an e-mail to all four commissioners, which are available here.

The EEOC wants to do the right thing. Receiving e-mail from the public could ensure the commission takes Fink's case—and set a clear example for other employers thinking about firing someone simply because of their genes.

Lew Maltby, the author of Can They Do That?: Retaking Our Fundamental Rights in the Workplace, is president and founder of the National Workrights Institute.

Lewis Maltby is president and founder of the National Workrights Institute and former Director of Employment Rights for the ACLU. He has testified before Congress many times on employment issues and appeared on 60 Minutes, Larry King Live, and Oprah. He lives in Princeton, N.J., and is the author of Can They Do That?: Retaking Our Fundamental Rights in the Workplace.

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