A woman in Connecticut has filed a complaint against her employer for genetic discrimination, saying essentially that she was terminated due to her increased risk for breast cancer. According to several legal experts, this appears to be the first publicly filed complaint invoking the Genetic Information Nondiscrimination Act (GINA), a law passed with much support in 2008 that would forbid employers from using employees’ genetic information against them. According to reports, 39-year-old Pamela Fink tested positive for mutations in her BRCA2 gene that are associated with increased risk for breast cancer in 2004.
She was open about the test results with her employer, gas and electric energy provider MXEnergy, in Stamford, and had reportedly had several biopsies and false alarms before electing to have double mastectomy. While on medical leave, her position was covered by a consultant, who then became her boss. Her position as a public relations director was eliminated in March after a second operation.
MXEnergy denied the allegations to the Associated Press and declined to comment further on the matter. Genomics law blogger Dan Vorhaus writes that he expects the dispute to be settled out of court.
It’s currently unclear whether other equal opportunity and employment laws, such as those covering sick and personal leave wouldn’t apply in this case. As for genetic discrimination Razib Khan asks what the company would be protecting themselves against. Double mastectomy, is an effective, if dramatic, way to reduce the risk for breast cancer.** That said, BRCA2 mutations do pose some ovarian cancer risks.
Nature has requests in to MXEnergy and Gary Phelan, Fink’s representation on the matter.
**Lawyer Gary Phelan called me back this evening to answer my questions. He and Fink aren’t arguing the case under family medical leave regulations because, he says the company could easily argue that she had no existing medical condition. “She didn’t really have a serious illness. She was pre-emptively treating a medical condition that might develop.” As for why they would have terminated her, taking two leaves of absence for surgeries might have been part of the reason, Phelan says. A second issue, he says is that “anything with cancer scares employers.”
To clarify, as several reports have gotten this wrong, Fink has filed a complaint at this point, not a lawsuit. She and the company have six months to resolve this before she can request the right to sue from the US Equal Employment Opportunity Commission.
Local TV news in the area has jumped on the story.
And both Fink and her attorney appeared on Fox News today