Archive for the ‘Genetic Information Nondiscrimination Act of 2008’ Category

As discussed before, a pregnant employee can face many different legal issues with her employer that impact many different laws including the Pregnancy Discrimination Act (PDA), The Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA) and possibly the Genetic Information Nondisclosure Act (GINA). Pregnant employees also need to know about their short term and long term disability insurance plans and how they interact with these laws. Most of these laws clearly cover natural pregnancy and adoption, but what about birth by surrogate?

That issues is now being addressed in a recently filed case. A US businesswoman is suing her employer after she was allegedly denied maternity leave following the birth of her twins through a surrogate mother.

Kara Krill, a clinical business manager at the Massachusetts-based company Cubist Pharmaceuticals, is claiming breach of contract, breach of good faith and fair dealing, discrimination on the basis of her disability and gender, and negligent misrepresentation by the company. She is seeking an injunction against Cubist, as well as compensatory and punitive damages.

Krill developed Asherman’s Syndrome – a condition which rendered her infertile – following the birth of her first child. When she and her husband decided to have a second child they used a surrogate. The resulting twins are biologically related to both Krill and her husband.

Following her first pregnancy, Krill was given 13 weeks of paid leave under the company’s maternity leave policy. However this time Krill says she was informed that she would only be entitled to five days of paid leave and up to $4,000 in expenses – as is offered to adoptive parents. Paternity leave under Cubist’s policy is also five paid days.

In her letter of complaint to Cubist, Krill stated: ‘But for my physical disability, I would be receiving the paid maternity leave offered by Cubist. Accommodating my disability would not require [Cubist] to provide me with any more benefit than other mothers’. Furthermore, she complained of discrimination and verbal abuse by her supervisor in the workplace due to her disability and surrogacy arrangement.

What do you think about Krill’s situation?

If you or someone you know is pregnant, and are not sure how to navigate the maze of legal issues that face you, feel free to call Scott Behren and the Behren Law Firm for a free consultation.

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There has an increase in weight discrimination charges under the Americans with Disabilities Act (ADA) and I think potentially there could be claims for weight discrimination under GINA which pertains to genetic discrimination (take a look at my post several weeks ago on that law). Frankly, I think that people with severe obesity problems would have a good chance of claiming this type of discrimination. But now a 132 pound Hooters waitress in Michigan, Cassie Smith, has claimed weight discrimination.

Hooters had just given Smith a glowing, two year review.

“I had excellence in… dealing with customer complaints and customer satisfaction,” she said.

However, her bosses and two women on a conference call from the company’s headquarters in Atlanta changed their tune when it came to her uniform evaluation.

“We have that your shorts and shirt size could use some improvement,” said Smith.

Cassie, who is almost five foot, eight inches tall and weighs 132 pounds, claims she sat there while she was told that if she wanted to keep her job, she needed to drop some weight.

“These women proceeded to explain to me that I had 30 days and they would give me a free gym membership, and if I didn’t improve within those 30 days I would be separated from the company,” she said. “If I improved a little bit I would get 30 more days, and if I improved completely they would leave me alone.”

Cassie does not have a problem squeezing into her skimpy uniform, which is an extra small tank top and shorts. In fact, she says when she started this job two years ago, she weighed about ten pounds heavier than she does now.

For Cassie, the damage has already by done. She feels she is a victim of weight discrimination by a corporation with unrealistic expectations.

“I don’t want other girls to have to go through this. I don’t want anyone to have to go through this,” she said. “If I could’ve gone back and not worked there for two years to take back that feeling, I would do it.”

Hooters argues that this was not weight discrimination because it is similar to the standards used by the Dallas Cowboys cheerleaders or the Radio City Music Hall Rockettes. In other words, Hooters is claiming that they have a legitimate business reason for this policy. I guess it remains to be seen whether their policy will hold up with the courts.

What do you all think?

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A woman who tested positive for the breast cancer gene brought suit against her employer MXnergy for violation of the Genetic Information Nondiscrimination Act of 2008 (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.

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,  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.

The article about this first lawsuit filed under GINA is posted at http://www.inc.com/news/articles/2010/05/woman-claims-genetic-discrimination.html.

So the question is what does the Genetic Information Nondiscrimination Act of 2008 (GINA) provide as far as protections for employees.  The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work.Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee.  Under GINA, it is illegal to fire, demote, harass, or otherwise “retaliate” against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.  It is also unlawful for an employer to disclose genetic information about applicants or employees. Employers must keep genetic information confidential and in a separate medical file.

So how does the Act define “genetic information”?  Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members (i.e. an individual’s family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.

The EEOC is responsible for enforcement of this Act, so presumably, if you believe a violation has occurred you may wish to file a complaint with the EEOC.  You should also speak with an employment law attorney if you believe a violation of the statute has occurred.

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