Delaware Employment Law Blog

It has long been believed that bald men do not fare well in the workplace, suffering from hidden bias that results in their failure to get hired or promoted at the same rates as those with a full head of David Hasselhoff-like hair. My husband contends that this is one of the few categories of employees it is still deemed appropriate to poke fun at. I will not comment on the state of his follicular impairment except to say that he is often compared to Cal Ripken, Jr.

I’ve written previously that the newly enacted Genetic Information Nondiscrimination Act (GINA) may have a whole host of unintended consequences, including potential claims for overweight employees.  GINA may offer a claim for follically-challenged individuals as well.

GINA protects against the discrimination based on genetic information. Genetic information includes the manifestation of a disease or disorder in the family member of an employee. At least some types of hair loss are widely deemed to be a result of a medical disorder, and some sources even appear to classify male-pattern baldness as a “hair disorder.”

Remember, GINA does not cover manifestation of a disease or disorder in the employee him/herself: that is medical information, not genetic information, and therefore governed by the Americans With Disabilities Act (ADA). Baldness alone would not likely qualify as a disability under the ADA. However, if an employer were to observe the manifestation of hair loss in a family member, an employee or applicant who believed he was being discriminated against based on his baldness could conceivably state a claim under GINA.

GINA also prevents an employee from a hostile work environment based on genetic information. Harassment could 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. Just like hostile work environment claims based on other protected categories, the incidents would have to be severe or pervasive and simple teasing and offhand comments will not generally state a claim. Certainly, though, there could be circumstances where teasing about baldness, along with other instances, could amount to a hostile work environment.

It may be hard to show that discrimination or harassment was based on baldness was because of genetic information, rather than appearance, which GINA nor any other federal law prevents (unless the appearance was related to age, race, gender, disability or other protected category). But that wouldn’t stop a disgruntled or hurt employee from filing a claim. I highly doubt that MX Energy discriminated against Pamela Fink because of her genetic information – after all, she took the most aggressive step she could to address her genetic condition: she got a double mastectomy upon learning she carried the BRCA gene for breast cancer. Nevertheless, she presents as a highly sympathetic plaintiff and her attorney was able to drum up a whole lot of bad publicity for her former employer by invoking a GINA claim.

So watch out, employers! Creative plaintiffs' attorneys can and will use GINA to create claims where none may have existed before. Given the right set of facts and a sympathetic plaintiff, a bald discrimination or harassment claim under GINA could actually grow roots!

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.

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.

Employers and human-resource professionals have been anxiously awaiting the issuance of the final rules interpreting Title II of the Genetic Information Nondiscrimination Act (GINA). We remain hopeful the regulations will address some thorny issues, such as the implications of employers’ use of internet and social media sites, which may in turn reveal the genetic information of an employee or applicant.

Looks like we shouldn’t hold our collective breaths for the final answer. Deadline after deadline set by the EEOC for its publication of the regulations for Title II of the Act, which applies to employers, has come and gone. Most recently, the EEOC’s Spring 2010 Agency Rule List indicated that GINA regulations were in the Final Rule stage and were expected to be finalized in May. May has come and gone and still no regulations.

In the meantime in GINA news, a new website, http://www.ginahelp.org/ has been created by the Genetic Alliance, the Genetics and Public Policy Center at the Johns Hopkins University, and the National Coalition for Health Professional Education in Genetics through funding by The Pew Charitable Trusts. This online resource on the GINA and its protections in health insurance and employment includes answers to common questions about GINA and hypothetical examples.

The information is fairly basic, but could serve as a helpful resource for those trying to get quickly up to speed on the fundamentals of GINA.

GINA, the Genetic Information Nondiscrimination Law of 2009, is the first new federal discrimination law in decades. 

Although EEOC regulations are promised (the proposed regulations were published back in March 2009 and the comment period has been closed since May 2009) , they have yet to issue, leaving employers on their own to interpret this brand new statute.

One area which presents an interesting question is the role of social media in GINA. Unlike other discrimination laws, GINA makes illegal the mere acquisition of genetic information, which is defined broadly to include, among other things, information about manifested diseases of family members. There are many exceptions to this rule, including “commercially and publicly available information,” such as newspapers, magazines, periodicals, and books. The EEOC specifically invited public comment on whether “commercially and publicly available information” should include personal Web sites or social networking sites.

If these are NOT included within the exclusions, it would mean that if an employer reviews an applicant or employee’s Facebook or MySpace page, and learns genetic information in the process, it is in violation of GINA. Given GINA’s broad definition of “genetic information,” this could easily occur. For instance, discovering on Facebook that an employee marched in a Susan G. Komen Race for the Cure on behalf of her mother would reveal genetic information.

If this advertent act (review of Facebook, Google name search, etc.) inadvertently produced genetic information – the employer would still be on the hook unless social media is included within the “publicly available” exclusion. Therefore, if information obtained from social media is NOT considered to be “publicly available,” employers will have to reconsider how they conduct background checks, since even the most rudimentary background checks currently include a “Google” search and review of any online information it turns up.

Even if the regulations specify that social media is excluded from the acquisition portion of the statute, the thornier issue is what happens after an employer has this information, whether deemed advertent or inadvertent under the statute. As a result of GINA, any adverse employment action which occurs after an employer has such information may be suspect. Just like any other discrimination, timing and stray comments may each play a role in developing causation between the membership in a protected class and the adverse employment action. As discussed in my previous post, Pink Ribbons and Yellow Bracelets, “genetic information” is everywhere. It will be hard for employers NOT to learn this type of information about their employees.

Thus, employers and their managers must understand the significance once this type of information is learned by the employer. It does not mean that the employee has to be treated better than other employers. It does mean, however, that employers need to be on alert once genetic information is learned about an employee. Like any other protected class, employers need to be cognizant of suspicious timing and mindful that documentation regarding any legitimate performance issues is in order, before taking any adverse employment action.

Want to learn more about GINA and its implications for employers?  There are many opportunities: I will be presenting on GINA at the CUPA/SHRM conference on March 2; in an audioconference on May 4, sponsored by M. Lee Smith; and at the Annual Seminar on Employment Law hosted by the Delaware State Bar Association on May 11.  Stay tuned for more details on the audioconference and DSBA event.

Until then, learn more about GINA with these earlier posts:

The GINA's Out of the Bottle--And It's a New Weapon in the Work-Family Arsenal

GINA's Application to Caregiver Scenarios

GINA's Implication on Employers: Pink Ribbons and Yellow Bracelets 

GINA Presentation to Delaware SHRM 

Genetic Information Nondiscrimination Act Update

And, for more about the impact of social media on the workplace: 

Social Media & HR Primer: 3 Key Tools 

5 Non-Negotiable Provisions for Your Social-Media Policy 

The 3 Principles for Social Media:  How to Be a Good Online Citizen

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

Sample Social-Media Policy Ideas

Social Media Policies: What about my “friends”?

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

In today’s culture of pink ribbons, yellow bracelets, and fundraising walks, it is not hard to imagine the multitude of ways an employer might learn about the genetic test or manifestation of a disease by a family member. Loved ones often become involved with organizations specific to the disease of their family member, and even sometimes starting their own. The employee’s membership in or leadership role in such organizations might well be reflected on their resume or application. Such relationship is likely to be disclosed on an employee’s Facebook, Twitter, or MySpace page. A quick Google search on an application, now typically performed in the most rudimentary background check, would reveal this information.

As noted in Parts 1 and 2 of this series, GINA’s inclusion of a “manifested disease” of a family member does not limit diseases to those with a genetic component. Therefore, an adult employee caring for a parent with lung cancer (which is generally accepted to be caused by environmental, not genetic influences), would be covered by GINA if he could show that his employer knew about the manifested disease of his parent, and treated him differently as a result. So would a parent with a child recently diagnosed with leukemia.

Health care coverage for a dependent in the face of a crippling diagnosis for a child is understandably, among the top concerns for any employee faced with this situation. There is a tremendous amount of fear in losing that coverage and an employer’s response to the knowledge that the employee may cause the employer to incur hundreds of thousands of dollars in healthcare costs. For an employee who is terminated in close proximity to a child’s diagnosis, one can easily appreciate the conclusion such employee may draw about the cause of the termination.

Bottom Line

GINA is likely to be a valuable add-on to existing statutes applicable in caregiving situations. These scenarios present highly sympathetic plaintiffs, and juries ready to find employers culpable of economic incentives. GINA may just be the hook many caregivers need to grab onto a claim, and its reach in this regard should not be underestimated.

 

Parts 1 and 2 in the series:

The GINA's Out of the Bottle--And It's a New Weapon in the Work-Family Arsenal

GINA's Application to Caregiver Scenarios

In Part I of this series, I discussed the Genetic Information Nondiscrimination Act in the employment-law context. In this post, I'll cover how GINA applies in the caregiver context. In Part III, I'll address how GINA may mean trouble for employers who search out information about employees and applicants online.

With the exception of a handful of municipalities, caregivers are not protected as a class. Under current law, caregivers may be able to assert claims under three different statutes, each limited in their reach:

1) Title VII sex discrimination: female caregivers of young children may be able to assert sex discrimination claims where they are treated differently then male employees based on a bias or assumption about the woman’s caregiving responsibilities;

2) FMLA Interference/Retaliation: if the employer has more than 50 employees and the employee meets other criteria for coverage under FMLA, the employee may have an interference or retaliation claim under FMLA;

3) Association Provision of ADA: the employee cannot be discriminated against because of the disability of an individual with whom the worker has a relationship or association.

Claims under these statutes are limited. First, to present a sex discrimination claim, the plaintiff (usually a woman) has to present a very specific set of facts reflecting that she was treated differently based on assumption about her role as a caregiver/parent. FMLA has limited application, including employers with 50 or more employees, and a plaintiff who has been employed for more than 12 months, among other restrictions.

ADA associational claims have never really caught hold and there have been very few cases brought under this theory, even fewer brought successfully. Moreover, in order to bring an ADA associational claim, the plaintiff must first show that the loved one has an impairment, or is perceived as having an impairment, and that it meets the definition of “disability.”

Given the limitations of existing causes of action, GINA provides an important additional layer of protection for caregivers and gives employers another reason to be aware of the laws that expose them to potential liability.

The Genetic Information Nondiscrimination Act (GINA), went into effect in November 2009. Title II of the Act, which applies to employers, amends Title VII to prohibit employment discrimination on the basis of genetic information. GINA was intended to address a very specific concern--specifically, that the advancement of genetic science would lead to employment (and insurance) discrimination based on an individual’s potential to contract a certain disease as reflected in genetic markers. But GINA's language has a far broader reach, which may well become the newest and most useful weapon in the work-family arsenal.

GINA’s Bite May Be Bigger than Its Bark
GINA has been ballyhooed by many as a “solution in search of a problem” in light of the fact that similar state laws have existed for years without generating a single case. Adding to the downplaying of the new law is the absence of evidence that employers in large numbers are seeking genetic information from their employees. The process is, after all, an expensive one and one that generates incremental predictive value.

Few would dispute the presumption that employers are not, as a whole, investing the time and money to root out genetic information on their employees or applicants—information that may or may not have real value to predict the individual’s health in the future. The more realistic concern, however, is what employers do with such information when they have it. Under the statute, even “inadvertently acquired” information cannot be used in any employment decision.

Despite the general consensus among employment-law practitioners that GINA presents little in the way of new potential exposure, this may be a gross underestimate of the real risk that GINA presents.

The key to GINA’s applicability to work-family and caregiver scenarios is its definition of “genetic information,” which includes “the genetic tests of family members [of the employee]” and “the manifestation of a disease or disorder in family members [of the employee].” “Family member,” in turn, is defined as “a dependent as used for purposes of ERISA,” and up to a fourth-degree relative (i.e., great-great grandparents and all cousins, aunts, and uncles inbetween). Notably, the scope includes adoptive children and parents, whose genes are entirely unrelated to the employees’. It is also notable that the “manifestation of a disease or disorder in family members” is not limited to those diseases with genetic markers.

Hazard #1: Genetic Tests of Family Members
First, let’s talk about genetic tests of family members. There are currently more than 500 diseases with known genetic markers, including Huntington’s, Alzheimer’s, and Parkinson’s—and the number is growing all the time. In some cases, a genetic test revealing the marker for the disease means the individual is certain to contract the disease, and in others, it indicates only some statistical probability of contracting the disease.

While this potential is frightening enough, for employees with family members already manifesting a disease, the consequences and implications are present and real. Many fear, and perhaps rightfully so, that an employer would have several concerns related to such an employee, including (1) the cost to the employer if family member is covered on health plan; (2) the employee will be less productive because of caring for a loved one with a disease; or lastly, (3) that the employee will develop the disease. While it appears that it is only the third issue that Congress was attempting to address with GINA, the Act’s reach expands to the other areas as well.

In Part II of this post, I'll discuss how GINA applies in the caregiver context and, in Part III, I'll explain how GINA's prohibitions may cause problems for employers who search online for employee data. Stay tuned. . .

I had the pleasure of speaking to the Delaware SHRM membership last night on the topic of GINA, the new federal law protecting against discrimination based on genetic information.  It was a great audience, and a topic of considerable interest.  My handout is below.

Having gone into effect in November 2009, but without any regulations issued yet to help us interpret this brand new protected category, there are many good questions left unanswered.  We will keep you posted on when the final regulations are put into place.

In the meantime, there are some interesting issues and potential scenarios that are worthy of greater discussion.  My plan is to address some additional questions on  GINA issues here in this blog.  Until then, you can read more about GINA in this previous post: Genetic Information Nondiscrimination Act Update.

 

Handout for GINA Presentation to Delaware SHRM by Adria B. Martinelli

As 2009 winds down, it’s a good time to reflect on the most important employment law developments in what has been a very busy year. Here are my top 10:

Continue reading "Top 10 Employment Law Developments of 2009" »

The U.S. Equal Employment Opportunity Commission (EEOC), announced on that it is now enforcing the Genetic Information Nondiscrimination Act of 2008 (GINA), which was enacted in May 2008 and went into effect on November 21, 2009. The EEOC’s summary of GINA says:

Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members.

The EEOC issued proposed regulations for the enforcement of GINA for public comment earlier this year. The regulations are now in the review process.

CCH Workday just published a helpful employer alert explaining GINA’s basics and an interesting summary of some of the comments submitted to the EEOC that highlight employer concerns about the implications of the law.

The New York Times published an editorial applauding the Act for “removing a significant obstacle to genetic testing, which can help prevent and treat serious illnesses.”

Employers should also take note that the EEOC has revised its employee rights poster to include GINA. Employers may print and post the GINA supplement, or print and post the revised version of the poster. Employers can also order the poster from the EEOC Clearinghouse, but the poster is on backorder so there may be a delay in shipment.

Employees who smoke are currently unpopular with the nation's employers.  But they are not alone.  The Philadelphia e-zine, Philly Burbs, writes that there are five other "conditions" that employers will avoid in a potential job candidate.  You can decide for yourself whether there is any truth in this claim.

The article quotes the president of an L.A.-based wellness company who says that there are five medical conditions in particular that no employer wants to see. The five he cites include: obesity, depression, hypertension, high cholesterol and musculoskeletal disorders such as low back pain.

Wow! 

The article goes on to say:

“Obesity is quickly replacing smoking as the number one expensive liability for a potential employer,” says Thomas B. Gilliam, president, Industrial Physical Capability Services (IPCS), Inc., Hudson, Ohio. He says that IPCS research indicates that costs related to obese employees have grown from 29 percent of the new hire pool in 2001 to 39 percent in 2007. “The obese worker will cost a company about $2,000 more per year in added health care claims and another $500 per year in lost productivity.”

I've posted before about the [very real] possibility that employers will soon target obese employees as the workplace becomes ever more focused on "wellness."  A combination of factors makes this result likely.

 

Primarily, he number of smokers will continue to decline.  Smokers receive harsh treatment and ostracism from society in large and, certainly, from mainstream corporate America.  In addition to the social pressures to abandon tobacco use, the country's employers have proclaimed smoking as an enemy to business--both from a productivity and expense perspective. 

 

For nearly 10 years, employers increasingly have used employees' tobacco use as a hiring qualification ("We don't hire smokers") and as a basis for higher health insurance premiums.  But eliminating smokers from the workplace will not create the ideal productive environment nor will it prevent the cost of health insurance from continuing to increase.  So what, then?  It seems logical that, once the "problem" (smoking) is eliminated, but the effects of the problem remain (productivity and high insurance costs), employers will simply elect a new "problem" to target. 

 

Obesity as a "problem" is not a far-flung idea.  Already we have seen fast-food chains change their offering to include healthier options, such as salads and fruit.  Even the addition of wellness programs promotes the idea of weight loss and a healthy body size.

 

Further support of this argument can be seen in the recent announcement of American Airlines that it will charge passengers $15 for the 1st checked bag and additional, higher premiums for the 2nd, and 3d bags.  The airline has defended this tremendously unpopular idea by citing the high cost of fuel.  Luggage weighs more.  The heavier the plane, the more fuel that is required to operate it.  Does it seem like a natural extension of this proposition that passengers will be charged extra if they "bring" extra weight on board, thereby causing the plane to use more fuel?

 

Of course, you may think this is absurd.  And, I admit, so did I.  But as outrageous as the thought may be, the local news today featured an "expert" on the airline industry who said, affirmatively and convincingly, that he believed that the next step would be to charge travelers for "extra weight" the next time they fly the friendly skies. 

Again, wow.

Genetic testing is a key advance in preventative health care. But opponents of DNA testing worry about privacy issues--that employers may use genetic data in making employment decisions. The Genetic Nondiscrimination Act of 2007 (GINA) is intended to prevent that.

The Act was unanimously accepted by the Senate with a vote of 95-0. After final approval from the House, it will go to the President's desk for signature. It could be signed into law as early as next week. The act will protect individuals against discrimination based on their genetic information when it comes to health insurance and employment. These protections are intended to encourage Americans to take advantage of genetic testing as part of their medical care. The purpose of GINA is to ensure that anyone who gets genetic screening tests will be protected from having that information shared with health insurers or employers. Up until now, individuals who tested positive for a certain type of cancer gene could be denied insurance coverage or employment based on his or predisposition to developing cancer years down the road.

“It means that people whose genetic profiles put them at risk of cancer and other serious conditions can get tested and seek treatment without fear of losing their privacy, their jobs, and their health insurance,”

said Ted Kennedy (D-Mass.).

The debate is not a new one--the bill was rejected more than 10 times before it passed. And during those 10+ years, Delaware passed its own genetic antidiscrimination law. Delaware is one of 35 states to prohibit genetic discrimination in employment. State laws typically protect "genetic information." A number of states, including Delaware, have passed or are considering bills that expressly include and requests for genetic services. The Delaware law also makes it unlawful for an employer to "intentionally collect" genetic information unless it can be demonstrated that the information is job-related and consistent with business necessity or is sought in connection with a bona fide employee welfare or benefit plan.

Of the 35 states with these laws, though, there has not been a single suit filed on the grounds of "genetic descrimination," although the EEOC did settle a genetic-discrimination claim that was filed under the Americans With Disabilities Act. In that case, the employer, Burlington Northern Santa Fe Railroad, was alleged to have obtained blood samples from employees that would later be used for genetic testing, unbeknownst to the employees. The employer ceased the conduct within days of receiving the EEOC's complaint and eventually settled the suit.

Additional Resources:
The National Conference of State Legislatures maintains a comprehensive website on laws dealing with genetics and genetic testing if you're interested in where your state currently stands.

But the most detailed resource, by far is that of the National Human Genome Research Institute, (NHGRI) at genome.gov. The NHGRI's site inlcudes dozens of helpful explanations about just about everything genetic--including the legal, social, and ethical implications of genetic testing.

To review GINA's passage through the House and Senate, visit thomas.loc.gov.

From a women's health perspective, U.S. News & World Report's Deborah Kotz's article is a worthy read.

And, as always, our friends at HR Hero has a whole cache of easy-to-read and to-the-point articles on the Genetic Testing page of their website.