Can You Be Fired Because of Your Genes?

You can probably be fired because your employer doesn’t like the jeans you wear, but you cannot be fired because your employer doesn’t like the genes you inherited. You may know that Florida is considered an “at will” employment state, where employers can fire employees at will – at any time, for any reason – with some limited exceptions. You probably are aware that state and federal anti-discrimination laws prohibit employment discrimination on the basis of race, sex, national origin, religion, age, and disability. But did you know that federal law prohibits discrimination on the basis of your genetic information? That’s right – it’s illegal to fire someone (or take other adverse actions) simply because they have or may be genetically predisposed to inherit a disease, medical condition, perceived “defect” or other trait deemed undesirable by an employer.

The Genetic Information Nondiscrimination Act (“GINA”) took effect November 21, 2009, to prevent potential abuse of genetic information to discriminate in health insurance and employment. Despite the many positive advances that have resulted from groundbreaking genetics research, the United States has a dark history attached to early genetics research.  The early science of genetics became the basis of State laws that provided for the sterilization of persons having presumed genetic “defects,” the first passed in Indiana in 1907. By 1981, a majority of States had adopted sterilization laws to “correct” apparent genetic traits or tendencies.  Because some genetic traits are most prevalent in particular racial and ethnic groups and genders, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. The recent explosion in the science of genetics, and the history of sterilization laws by the States based on early genetic science, compelled Congress to implement protections as it relates to employment (in Title I) and health insurance (Title II).

In passing GINA, Congress relied on examples of genetic discrimination in the workplace, where employers instituted procedures seeking information about undesirable “defects” or “abnormalities,” or predisposition to future defects, in their employees.  The statute specifically references the use of pre-employment genetic screening that was at issue in the seminal lawsuit of Norman-Bloodsaw v. Lawrence Berkeley Laboratory.  This suit was brought by 7 current and former employees of Lawrence Berkeley Laboratory (LBL), a research facility operated by the Regents of the University of California pursuant to a contract with the U.S. Department of Energy. The Department required its contractors such as LBL to perform “preplacement examinations” which included testing of all applicants for syphilis, testing of black applicants for sickle cell trait, and testing of women for pregnancy. Another significant example occurred at Burlington Northern Santa Fe Railway Co., which secretly tested workers for a genetic defect that can predispose a person to carpal tunnel syndrome, and also screened workers for common genetic precursors for diabetes and alcoholism.

Pursuant to GINA, protected genetic information includes an individual’s genetic tests, the genetic tests of family members, and the manifestation of a disease or disorder in family members of such individual (i.e family medical history) – basically a person’s genetic characteristics or any piece of medical history.  Protected information does not include information about the sex or age of an individual.  GINA applies to employers, employment agencies, and labor organizations, and  makes it unlawful for these entities to discriminate against an employee with respect to any term or condition of employment or to otherwise adversely affect the status of an employee because of the employee’s genetic information; or for them to request, require or purchase genetic information with respect to an employee or a family member of the employee (with some limited exceptions such as FMLA compliance); and requires confidential treatment of an employee’s genetic information.  GINA also makes it unlawful to harass an employee regarding their genetic information, and to retaliate against an employee who complains about or makes a claim for genetic discrimination. Employees cannot be pressured to “voluntarily” make their genetic information known to their employer, even for purported positive purposes, such as an employer wellness program, and cannot be punished for refusing to participate in such a voluntary program.

GINA explicitly adopts the procedures and remedies made available under Title VII of the Civil Rights Act as it relates to discrimination claims on the basis of race, color, sex, national origin, and religion (beginning with filing an administrative charge with the Equal Employment Opportunity Commission). Successful claimants can recover pecuniary damages, emotional distress damages, potentially punitive damages, as well as recovery of attorneys fees and court costs.

GINA has been in effect for over 8 years, and the EEOC receives increasing numbers of claims for genetic discrimination every year, but there is a perception that such claims are underreported because of a lack of awareness of the protections provided by GINA.  The New York Times recently published an editorial bemoaning the purported lack of any federal protections for employees’ health data, completely ignoring GINA!  So now you know something that the New York Times apparently does not know:

An employer may never use genetic information to make an employment decision.

Protect your genes.

Mary Meeks has practiced law in Central Florida for nearly 30 years and has the highest rating by the Martindale-Hubbell National Lawyer’s Registry.  She represents individuals, small businesses and Fortune 500 companies. Ms. Meeks is an accomplished civil trial lawyer who currently concentrates her practice in employment law, including cases involving discrimination based on race, color, national origin, age, disability, religion, gender, pregnancy, sexual orientation, gender identity, sexual harassment and retaliation.  For more information, www.MaryMeeksLaw.com

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Age Discrimination is a Flexible Concept. Know Your Rights

A recent decision from the 11th Circuit Court of Appeals, which governs federal cases filed in Florida, clarified that the federal statute that governs age discrimination cases (the “Age Discrimination in Employment Act”) allows an employee to bring an age discrimination claim even where the employee was replaced by someone within the same protected age group. The ADEA prohibits employers from firing or otherwise discriminating against employees who are 40 years or older because of their age.

In Liebman v. Metropolitan Life Insurance Company, Liebman was 49 years old and had been working for Metlife for 28 years when he was fired and replaced by someone who was 42 years old. The District Court granted summary judgment against Liebman, holding that he could not allege a viable claim for age discrimination because his replacement was over the age of 40 and therefore also a member of the ADEA’s protected class. The appellate court, citing U.S. Supreme Court precedent, reversed this ruling, noting that “the fact that one person in the protected class has lost out to another person in the protected class is irrelevant so long as he has lost out because of his age.” The proper inquiry is whether the plaintiff was replaced by someone “substantially younger.” The appellate court noted that the 7-year age difference between Liebman and his replacement had been found to meet the standard of “substantially younger” in prior court precedents. In fact, age differences of as little as 3 years have been found sufficient to satisfy this standard. Meeting this threshold standard does not guarantee victory for Liebman, but it does mean that he has stated a viable claim for age discrimination, and Metlife must come forward and articulate alleged “legitimate business reasons” for Liebman’s termination. Liebman will then have to prove that those articulated reasons are mere pretexts for discrimination against him because of his age.

The ADEA differs from other federal discrimination laws in this and other respects. Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against employees based on their race, color, religion, sex, or national origin. (“Sex” discrimination under Title VII has recently been expanded by some courts to include sexual orientation and/or gender identity, and separate federal statutes prohibit discrimination based on pregnancy and disability.) In these cases, a plaintiff cannot state a viable claim where their replacement is within the same protected class, i.e. where a fired female employee is replaced by a female employee. The ADEA also covers employers with 20 or more employees whereas Title VII covers employers with 15 or more employees. The ADEA originally capped its protections at 70 years of age, but this upper parameter was later removed. There are some exceptions to the ADEA’s protections, such as where there is a “bona fide occupational qualification” related to age, for example where a young actor is required to portray a young character, or for safety reasons in hazardous professions. The ADEA also prohibits mandatory retirement ages (with some limited exceptions), and prohibits employers from retaliating against an employee who complains of age discrimination.

Below is an article in the Daily Business Review featuring my commentary on the Liebman decision:

http://www.dailybusinessreview.com/id=1202745828229/Court-Revives-Former-Metlife-Executives-Age-Bias-Claim?slreturn=20160004125043

Mary Meeks has practiced law in Central Florida for nearly 30 years and has the highest rating by the Martindale-Hubbell National Lawyer’s Registry.  She represents individuals, small businesses and Fortune 500 companies. Ms. Meeks is an accomplished civil trial lawyer who currently concentrates her practice in employment law, including cases involving discrimination based on race, color, national origin, age, disability, religion, gender, pregnancy, sexual orientation, gender identity, sexual harassment and retaliation.  For more information, www.MaryMeeksLaw.com

What’s The Difference Between Employment Law and Labor Law?

My firm, Mary Meeks, P.A., concentrates its practice in employment and labor law – representing both employees and employers.  While the terms “labor law” and “employment law” are sometimes used interchangeably, these terms describe two areas of law that are both related to the employment arena, but are separate and distinct with regard to the types of issues that they cover.

Labor law deals generally with the rights of groups of employees that form labor unions and enter into collective bargaining agreements with their employer.  These employees’ rights are governed by the terms of the collective bargaining agreement, and there are often disputes as to the interpretation and application of those contractual rights.  Florida is considered a “right to work” state, which means that employees may not be forced, nor forbidden, to join or financially support a union.

Employment law deals with the rights of individual employees and covers all legal issues relating to the employer-employee relationship.  These issues include disputes regarding hours, wages and other terms and conditions of employment, as well as issues relating to discrimination, harassment, bullying, whistleblower retaliation, and workplace violence.  Florida is considered an “at will” state, which means that employees are employed at the will of their employers (and thus can be fired for any reason) unless there is a contract or some applicable law that provides them with protection.

There are many complex laws and regulations that exist on the federal, state and local level that make up labor and employment law.  In forthcoming posts, I will explain these laws and will address some of the specific issues typical to these areas of law.  www.MaryMeeksLaw.com