Genetic discrimination case filed
A Fairfield woman has filed what is believed to be the first complaint in Connecticut under a new federal law that bars companies from discriminating against employees based on their genetic information.
Pam Fink claims she was fired from Stamford-based MXenergy, after informing the company that a genetic test suggested she was predisposed to breast cancer and undergoing preventative surgery that she believes reduced the odds of her contracting cancer from 80 percent to 5 percent.
Fink filed complaints with the Connecticut Commission on Human Rights and Opportunities and the Equal Employment Opportunities Commission, a first step toward filing a federal lawsuit unless the parties reach a settlement before that point. If a settlement cannot be reached, the EEOC or CHRO typically issue a “right to sue” letter, enabling plaintiffs to pursue the matter in court.
Fink was director of public relations and marketing communications for MXenergy and it quickly became clear she intended to win the first skirmish in the battleground of public opinion. As April came to a close, she had set up interviews with ABC News, the New York Times and other national news outlets.?MXenergy sells natural gas and electricity in Connecticut, New York and more than 30 other states. The company denied wrongdoing and indicated it would not make further comment to media outlets in advance of any formal responses that could be disclosed in federal proceedings.
According to Fink”™s complaint, she consistently received favorable performance reviews leading up to her leave of absence for surgery.
Gary Phelan, Fink”™s attorney in the Stamford office of Outten & Golden, said it is the first Connecticut case he is aware of filed under the federal Genetic Information Nondiscrimination Act, which was co-sponsored by U.S. Sen. Chris Dodd of Connecticut.
“You cannot fire someone for a disease they may never get,” Phelan said.
Dubbed GINA for short, the law prohibits health plans from denying coverage or charging higher premiums for individuals whose genetic profile exposes them to a higher risk of contracting an ailment. It also bars employers from using someone”™s genetic background in decisions to hire, promote or fire employees.
An array of business groups had lobbied against the bill, arguing it might result in frivolous lawsuits that might succeed due to inadequate personnel records or other reasons.
Phelan, who authored a book titled “Disability Discrimination in the Workplace,” said if anything workplace discrimination suits can be difficult to win due to the same reason ”“ insufficient record-keeping that might otherwise provide plaintiffs with conclusive proof bolstering their case. In the same breath, however, he said judges and juries often look beyond limited evidence to the circumstances supporting a plaintiff”™s case.
“In 90 percent of cases, you don”™t get a smoking gun ”“ what you get is pretext,” Phelan said. “The defense most employers (adopt) is to criticize performance.”