Here's the case of one company that allegedly ran afoul of the new federal Genetic Information Nondiscrimination Act, and how you can avoid doing the same.
Despite years of evaluations she described as glowing, Pamela Fink claims her company fired her after learning she tested positive for the breast cancer gene.
Fink, 39, has filed complaints against her employer – natural gas and electric supplier MXenergy – at the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. Hers are the first known filings under the Genetic Information Nondiscrimination Act (GINA), which President George W. Bush signed into law in May 2008. The law – which took effect in November – bars discrimination by employers and health insurers based on a person's genetic information, which also includes family health history.
"I was a great employee and I did really great work," Fink, who was MXEnergy's public relations director, told ABC News. "The only thing that changed from the time that I had a great review to when I didn't was my two surgeries." (Fink actually showed the great reviews to Connecticut's News Channel 8. Watch Fink's interview.)
After learning she carried the hereditary BRCA2 gene linked to many breast cancers – and that she had an 80 percent chance of getting the disease – Fink took two weeks of paid medical leave and underwent a double mastectomy on October 9, 2009. On January 22, 2010 she had reconstructive surgery.
The day before her second surgery, Fink says, she received a "negative and scathing" review. Two months later, on March 25, Fink was fired – because her "position was terminated," says the complaint. But Fink – a mother of two and the family's main breadwinner – says a consultant was hired to do her job while she was recuperating from her first surgery and that the woman was promoted to be her boss when Fink returned.
"What MXenergy did by firing her because of a positive genetic test is wrong and it's illegal," Fink's lawyer Gary Phelan told the Associated Press. "Part of what she's hoping by going public is that employers will get the message that you can't do this – that you can't use someone's genetic history against them and that individuals won't, out of fear, avoid the advantages of genetic testing." Phelan said Fink will take her case to federal court if necessary.
MXenergy did not respond to Inc.'s request for comment, but CEO Jeff Mayer blogged: "As a matter of company policy, we do not discuss personnel matters, and so we are frustrated by limits on what we can say publicly at this time. But we can say that this case is completely without merit."
Experts can't say whether Fink's case is the start of a wave of genetic testing lawsuits, especially as the tests become cheaper and easier to get. Today, Pathway Genomics, a start-up in San Diego that counts Founders Fund, Facebook's San Francisco backers, among its investors – announced it would start selling the tests for less than $30 in Walgreens stores nationwide.
Experts advise employers to keep an eye on the genetic information they glean from employees – Fink felt comfortable and shared hers voluntarily – and what they do with it.
"I can see [litigation] happening with more and more people as genetic testing becomes less costly and more available," Joseph Lazzarotti, a partner at employment law firm Jackson Lewis, told the Connecticut Law Tribune. "I expect those [discrimination] claims are going to start coming and a lot of employers aren't even aware of the law."
Catherine Barbieri, a Philadelphia lawyer who specializes in anti-discrimination employment law, suggests employers keep medical and personnel records separate to minimize potential for conflict. Another tip: Don't ask for too much detail when an employee requests medical leave.
And in today's blog-or-Tweet-it-as-it-happens culture, she suggests a little discretion on all sides can go a long way.
"Unfortunately, I think in today's day and age people have started sharing a lot more personal information about themselves, whether it's in social media or in the workplace," she said. "But I think it may behoove people to keep some of that information closer to the vest."
"I'm not suggesting employers are necessarily going to act on that, but really there may be no need for them to know."
Inc. contributing editor COURTNEY RUBIN was for five years a London-based staff writer for People magazine. Rubin, a former senior writer for Washingtonian magazine, has written for the New York Times magazine, Time, Marie Claire, and other publications. She is the author of The Weight-Loss Diaries.