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US woman accuses employer of genetic discrimination after breast cancer test

4 May 2010
Appeared in BioNews 556

A Connecticut woman who had a voluntary double mastectomy after genetic testing is alleging her employer wrongfully terminated her job after learning she carried a gene implicated in breast cancer.

Pamela Fink is accusing MXenergy, a natural gas and electricity provider, of phasing her out of employment after she disclosed that she had tested positive for the BRCA2 genetic mutation, predisposing her to breast and ovarian cancer.

She took leave to undergo a voluntary double mastectomy as a preventative procedure, but the company terminated her employment six weeks after her return from the second surgery 'because it regarded me to be an 'individual with a disability'', Fink claims in her complaint, which is filed with the Connecticut state Commission on Human Rights and federal Equal Employment Opportunity Commission (EEOC).

A spokesman for MXenergy emphatically denied the allegations and will not comment further.

The allegation has sparked public interest in the US because, according to legal experts, it is one of only a few to invoke breach of the new federal Genetic Information Nondiscrimination Act 2008 (GINA) which prohibits employers and health insurers from considering an individual's genetic test results or genetic information in reaching decisions.

Fink explained that the reason she has gone public with this complaint is because '…I want people to know and feel comfortable… getting these tests and doing what they can to remain healthy'. Her lawyer, Gary Phelan, said that Fink's case sends an important message to employers that 'you can't use someone's genetic history against them'.

Fink and her two sisters tested positive as carriers of the BRCA2 mutation in 2004. Both her sisters developed breast cancer, and following several biopsies and false alarms, Fink underwent the double mastectomy.

Fink worked for MXenergy for almost four years and had glowing performance reviews up until she disclosed her genetic tests. Following this, she received negative performance reviews and claims that her responsibilities were increasingly removed, until her employment was ultimately terminated in March.

Phelan said it's common for employers to claim a worker is performing poorly when they wish to terminate the employee for some other reason.

The EECO will investigate the complaint and try to negotiate settlement over six months. If it does not settle, Phelan has stated that Fink will apply for EEOC approval to pursue the claim in court.


Conn. woman alleges genetic discrimination at work
Associated Press |  29 April 2010
Fairfield Woman Claims Gene Discrimination After Breast-Cancer Test |  29 April 2010
Fairfield woman claims genetic test led to firing |  29 April 2010
Fink claims genetic discrimination in firing
NECN |  29 April 2010
Genetic nondiscrimination law invoked
Nature blogs |  29 April 2010
2 July 2010 - by Catherine Casserley 
People with a genetic predisposition to health problems may experience prejudice from employers, prospective employers or insurers due to a perception that they will develop a condition that could seriously affect their work and life. But can present UK legislation protect them against this potentially discriminatory treatment given that it is based on perceived - not actual - disability?
23 November 2009 - by Ben Jones 
The US Genetic Information Non-Discrimination Act 2008 (GINA) has come into force introducing new protection against discrimination on the basis of genetic predisposition to disease. The act, signed into law in March of last year by President Bush, outlaws the usage of 'genetic information' to discriminate in the provision of health insurance and prohibits the usage of such information in the making of employment-related decisions such as hiring, firing or promoting....
26 May 2009 - by MacKenna Roberts 
Last week, following ten years of debate, the upper house of the German Parliament (the 'Bundesrat') provided the final stage of legislative assent to a strict framework of laws aimed at preventing the misuse of genetic tests. The legal impact is far-reaching setting stringent limits on paternity...
13 August 2007 - by Antony Starza-Allen 
Proposed legislation geared to protect individuals in the US against genetic discrimination has been blocked by Senator Tom Coburn, who is concerned over it's 'lack of precision' and 'unintended consequences' if the bill becomes law. The Genetic Information Non-discrimination Act (GINA) would make it illegal for employers...
1 May 2007 - by Katy Sinclair 
The first coherent US legislation prohibiting genetic discrimination could be law within months. The House of Representatives has passed the Genetic Information Non-discrimination Act (GINA), which will prevent the public from being disadvantaged on the basis of their DNA. The bill will now progress to the Senate...
21 February 2005 - by BioNews 
The US Senate has unanimously approved a bill that would ban employers and insurers from using genetic information. Senators voted 98-0 in favour of the bill last Thursday, although it now faces an uncertain future in the House of Representatives. In 2003, the Senate passed a nearly identical bill...
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