Can I be fired based on genetic information revealed during a fitness-for-duty exam?

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Question:

I took leave from my job for knee surgery. When I was ready to return to my job as a warehouse foreman, my company asked me to take a fitness-for-duty exam. After the exam, my doctor sent my employer a detailed write-up of my condition and status -- including that I have rheumatoid arthritis. My company put off returning me to work for a couple of weeks, then told me not to come back. My written termination letter and severance package state that I was laid off, but my manager told me that the company didn't want me back because they were worried my physical condition would continue to worsen and I would need more surgery (with the time off and health insurance costs that requires). They hired someone else to replace me. Is this legal? 

Answer:

Based on the facts you've stated, it sounds like you may have a genetic discrimination claim. Discrimination based on genetic history, information, markers, and so on was made illegal in 2008 by the Genetic Information Nondiscrimination Act (GINA). GINA also prohibits employers from requesting or gathering genetic information on employees in the first place. Although the law recognizes that employers might receive this type of information accidentally, employers must take steps to try to limit these mistakes. It sounds like your employer may not have followed the rules about gathering information -- and certainly broke the law if it made a job decision based on your genetic information.

Although GINA prohibits employers from gathering genetic information about employees and applicants, it creates some exceptions for situations in which information is learned accidentally or in the course of otherwise legitimate activities. One of these exceptions may apply to you. If an employer receives genetic information in response to a lawful request for medical information (such as a fitness-for-duty exam), it will be considered inadvertent, and therefore not illegal. However, this exception applies only if the employer tells the doctor or other information provider, ahead of time, not to reveal genetic information. If your employer told your doctor not to provide genetic information, but your doctor ignored the request and revealed your rheumatoid arthritis anyway, your employer won't be at fault for getting the information in the first place. 

However, whether your doctor or your employer was at fault for the disclosure, your employer has clearly violated the law if its decision to fire you was based on your genetic condition. If the exception applied and your employer wasn't in the wrong in gathering your information, it still has an obligation to keep that information confidential and may not use the information in making employment decisions. That your manager knew about your condition makes it seem likely that your employer didn't keep it confidential. And, if your employer really did decide to fire you because of your genetic information, that's against the law. 

To make a legal claim against your employer, you must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces laws prohibiting discrimination. You can learn more about how to file a charge at our Asserting Your Rights Against Discrimination page

 

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