The Emplawyerologist

The informational legal blog for employers and business owners who want to stay in compliance and out of court.

How Are Employers Faring (In Court) Under GINA?

How is GINA, the newest of our federal anti-discrimination laws, playing out in court? (Click here for some specifics and a review of GINA).  Since GINA only went into effect in late 2009, there have not been many cases –yet.  There are, however, a few, which can provide us some guidance as to how an employees and consequently employers,  under GINA are likely to fare in court.  Let’s see what we can glean from them.

Last week’s post, among other points, covered  both the statute’s and the EEOC’s definition of   “genetic information”.  Two courts have since weighed in on that question. Culbreth v. Washington Metropolitan Area Transportation Authority, (No. RWT-10-cv-3321 (D. MD March 20, 2012), addresses this question (or rather what genetic information is not) and whether GINA cases abrogate the Eleventh Amendment, which grants sovereign immunity to states and state entities. The plaintiff, a Metrotrail Train Operator filed an EEOC charge based on Title VII of the Civil Rights Act of 1964, and Title II of GINA.  (Previously, Ms. Culbreth filed a state court case alleging ADA violations. Since the 11th Amendment of the United States Constitution bars most lawsuits against states or state entities, the court dismissed that claim.) While the federal district court in Maryland dismissed all claims, let’s focus on the GINA claim. Ms. Culbreth asserted discrimination on the basis of a mental disability. Simply put, the court found no support for the GINA claim. GINA requires a plaintiff to prove discrimination based on an employee’s genetic information. Both the statute and the Culbreth court stated that “genetic information” does not include information about the sex or age of the individual. Ms. Culbreth admitted in her pre-trial deposition that she never underwent genetic testing and that her employer never had access to her genetic information.  “For this reason alone”, said the court “her GINA claims must be dismissed”.  GINA claims therefore need a showing that the employer had access, in some way, to the employee’s genetic information

Are GINA cases against state entities barred by the Eleventh Amendment? Culbreth says “yes The court first established that the WMATA had Eleventh Amendment immunity through an interstate compact.  Other than a waiver, WMATA could only be subject to suit under GINA if GINA validly abrogates that immunity. How would that work? First, the statute itself has to clearly show intent to abrogate the Eleventh Amendment. GINA did that.  Second, the statute has to be a valid exercise of Congressional power. Huh, what does that mean? Basically, Congress has to show what part of the Constitution provides the basis for abrogating sovereign immunity. The specific analysis the court engaged in is a bit convoluted, so I will not get into it here. Suffice it to say, however, that the court felt that for purposes of abrogating sovereign immunity, GINA was not a valid exercise of congressional authority. Therefore, according to the federal district court of Maryland, state entities are not subject to suit under GINA. Please note, however, that this ruling is not binding on other courts. Therefore, other state entities outside of Maryland may not benefit from this ruling.

Returning to what constitutes “genetic information”: In Poole v. Peterbilt Bristol, LLC, et al Case No. 1:11CV00088 (Western District, VA April 4, 2012), the employee came a little closer, but still fell short.  Mark Poore was terminated from his position at Peterbilt on January 29, 2010 and sued alleging ADEA and GINA violations.  While the Court allowed Mr. Poore to proceed with his ADEA claim, it found that he did not state a valid GINA claim. Mr. Poore was terminated 6 days after completing a health insurance questionnaire regarding his family’s general medical condition and medications. While he did provide genetic information, and the timing of his termination is certainly suspicious, there is only one problem: the genetic information related to his wife. Poore disclosed that his wife had been diagnosed with multiple sclerosis. The office manager later asked about the date of her diagnosis and prognosis. Since the wife’s diagnosis “has no predictive value with respect to Poore’s genetic propensity to acquire the disease” and Poore did not allege that “Peterbilt used Poore’s wife’s diagnosis to forecast the tendency of any other individual (employee) to contract multiple sclerosis” the court held that Poore’s termination “does not constitute discrimination under GINA”. Note to employers: this ruling likely turned on the fact that the genetic information in question did not involve a blood relative. If it had, he may well have been allowed to proceed with a GINA claim.

Finally, the case with potentially significant implications Fink v. MX Energy, is a pending EEOC charge. Pamela Fink was MX Energy’s Public Relations Director and Marketing Coordinator and had received excellent reviews up until she learned she had a genetic pre-disposition for breast cancer. Ms. Fink, having two sisters previously diagnosed with breast cancer underwent genetic testing. Ms. Fink learned that she had an 80% chance of contracting breast cancer and opted for a preventive double mastectomy in October 2009. In January 2010, Ms. Fink underwent reconstructive surgery. One day prior to her reconstructive surgery, Ms. Fink received a scathing performance review and was terminated approximately two months later. While she was on leave, MX Energy allegedly brought on another employee to do her job and ultimately promoted the replacement employee. In April 2010 Ms. Fink filed a discrimination charge under GINA with both the EEOC and the Connecticut Commission on Human Rights and Opportunities.

Though Pamela Fink’s claim is still pending, it appears much more likely to “stick” than Culbreth and  Poore.  The test showing her predisposition to breast cancer is clearly “genetic information” within the meaning of GINA.  The allegations of excellent performance and reviews until the day before her second surgery, and her termination two months later, certainly suggest  discrimination based on genetic information. If MX Energy cannot show sufficient evidence of a legitimate non-discriminatory, non-pretextual motive, from an employee’s standpoint, Pamela Fink may well have the first successful case under GINA–whether it results from a pre-trial settlement or post-trial verdict. Whether or not the claim ultimately succeeds, employers need to take steps to ensure that they (and/or their managers) do not base employment decisions on genetic information pertaining to their employees or employees’ family members. For now, I am awaiting the results of this case and I am sure all of you employers out there are too!

In the meantime, I look forward to having all of you back next week to dig into using social media to pre-screen employees—the advantages and the pitfalls!

Are you in the staffing industry? Do you use staffing agencies to meet your staffing requirements? If so, click here to read my latest post about how the ADA  applies to “temps” on The Staffing Stream , a blog published by Staffing Industry Analysts.

Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.

Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.

Any topics you would like to see covered by The Emplawyerologist?  Would you like to be a guest blogger? Email The Emplawyerologist at theemplawyerologist@gmail.com

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2 thoughts on “How Are Employers Faring (In Court) Under GINA?

  1. Carol Hammell on said:

    I recently googled a temp worker who was seeking to become a candidate for permanent employment. I found mug shots from 2 arrests in 2 different counties. One of the arrests was for a crime bearing on dishonesty. The temp agency who placed the worker had failed to conduct a background check, despite the fact that the position exposed the worker to the company payroll. What are the employer’s options in this true life case?

    • The answer depends in part on whether you and the staffing agency have a contract and if so what it says about screening candidates. Many clients do not want to pay for a staffing agency to conduct background checks even ifc only to reimburse for the cost without a markup.

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