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.