Does GINA Provide a Cause of Action for Overweight (or Overly Attractive) Employees?

GINA (the Genetic Information Nondiscrimination Act), has been dismissed by many legal practitioners as an unnecessary law with little probable impact on employers.  Au contraire. The ink has barely dried on this new law and, already, GINA is making headlines.  For example, a GINA claim has been filed against a Connecticut employer, GINA may make illegal the common practice of checking Internet sources for information on a current or future employee and, last but not least, as recently posited in this article in Corporate Counsel magazine, GINA could provide a new claim to overweight employees who believe they’ve been discriminated against. microscope

As noted in the Corporate Counsel article, ADA potentially could over a case involving obesity. So could GINA. GINA precludes consideration of family medical history. Specifically, it defines “genetic information” to include “the manifestation of a disease or disorder in family members of such individual.” Disease or disorder is not defined in the statute, but most likely some cases of obesity would be considered a disorder. Further, it has been medically established that in many cases, obesity has a genetic component.

Consider the following hypothetical scenario: Employer observes the manifestation of obesity in a family member of an employee at Company picnic. Employer concludes that employee is overweight as a result of a genetic predisposition. Employer terminates or denies promotion to overweight employee. Voila! Like a Genie in the Bottle, a GINA claim has instantly materialized.

What about the “Too Sexy for Her Job” employee, Debrahlee Lorenzana? Could she claim that her good looks were genetic and therefore state a GINA claim? Not likely, since – even if it runs in the family – good looks would not likely be labeled as a “disorder.” And there’s that pesky little fact that she does not come by it all naturally.

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