Featured Guest Blogger
March 1st, 2010
Adria B. Martinelli is a Labor & Employment lawyer, representing and counseling employers and management regarding all types of employment matters. She specializes in pregnancy and family responsibility discrimination, and has presented on these topics to national audiences. Please note that the views of our guest bloggers do not necessarily reflect the views of the Sloan Work and Family Research Network.
In November of 2009, the Genetic Information Nondiscrimination Act went into effect. Title II of the Act, which applies to employers, amends Title VII to prohibit employment discrimination on the basis of genetic information. The Act was intended to address a very specific concern that the advancement of genetic science would lead to employment (and insurance) discrimination based on an individual’s potential to contract a certain disease, and reflected in genetic markers. However, the language of the Act has a far broader reach, and one which may well become one of the more useful weapons 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 (1) similar state laws have existed for years without a single case filed under them and (2) the lack of evidence that employers in large numbers were seeking out genetic information on their employees, due to its expense and incremental value as a predictor at this stage of scientific advancement.
The key to GINA’s applicability to work-family/caregiver scenarios is in 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 in between). 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.
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.
GINA’s Application to Caregiver Scenarios
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.
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.
