May 05, 2010

EEOC Charge Filed for Illegal Firing Under GINA

Last week, Pamela Fink filed a charge with the EEOC, alleging that she was fired from her job after telling her employer that she carried the BRCA2 gene (linked to some forms of breast cancer) and had undergone a voluntary double mastectomy after her two sisters had both been diagnosed with the disease. According to news reports, this is the first publicized case under GINA -- and one of the first EEOC charges to allege wrongful termination rather than improper disclosure of medical information.

In this case, Fink told her supervisors about the genetic test results and her surgery. She said that she felt comfortable doing so because she had received positive reviews, merit increases, and bonuses. Once she returned from surgery, she claims that her job duties were taken away, she was demoted, and was soon fired. The company has denied the allegations and said that its actions were warranted.

With so few facts on the table, it's hard to glean many lessons from this situation -- except perhaps that silence is golden. From an employer's perspective, it's always a good idea to limit the number of people who are privvy to information that cannot legally be considered when making employment decisions. If the decision maker doesn't know the protected information, whether it's that the employee has a disability, has complained of sexual harassment, or is pregnant, it's more difficult to prove discrimination or retaliation. And from an employee's perspective, limiting disclosure also limits the number of people who have an opportunity to act badly.

To learn more about GINA (and 19 other important workplace laws), see The Essential Guide to Federal Employment Laws (Nolo).