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Friday, November 2, 2012

EEO Roundup: GINA Cases in the Forecast?

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Since the Genetic Information Nondiscrimination Act (GINA) took effect Nov. 21, 2009, there hasn't been as much litigation activity under the employment provisions of the statute as some may have anticipated. That could be about to change, with the Equal Employment Opportunity Commission leading the way.

During a recent employment law seminar, Elizabeth Grossman, the regional attorney for EEOC's New York office, mentioned that the agency soon will become more active in GINA litigation, even hinting that the commission may have some GINA enforcement actions already in the queue.

The dearth of GINA decisions to date has no doubt left employers and employees--and their lawyers--somewhat in the dark as to how the key employment provisions of the statute will be interpreted by the courts. The statute provides generally that it is illegal to discriminate against employees or job applicants because of genetic information, which includes information regarding an employee or applicant's genetic tests or the genetic tests of his or her family members.

With EEOC likely to be pursuing litigation on substantive GINA issues in the near future, some of the dark may soon be lifted.

Other recent EEO developments included:

  • The U.S. Court of Appeals for the Fifth Circuit holding that a fired church music director could not litigate his age and disability discrimination claims against the Catholic Diocese of Austin, Texas, because his job was covered by the "ministerial exception."
  • A state appeals court ruling that a heterosexual delivery driver in Washington did not present an actionable claim under state law based on a co-worker repeatedly calling him "Big Gay Al"--a reference to the TV show South Park--because perceived sexual orientation is not a protected status under Washington's anti-discrimination statute.
  • A federal district court finding that Baltimore County, Md., violated the Age Discrimination in Employment Act by requiring public employees age 40 and older to contribute a higher percentage of their salaries to the county's defined benefit pension plan than younger employees contributed.
  • The U.S. Court of Appeals for the Second Circuit ruling that a federal trial court abused its discretion when it denied EEOC's request for an injunction, at least to the extent that the commission sought to bar a fired grocery store manager who engaged in sexual harassment from working at or visiting the Oswego, N.Y., store where the harassment occurred.
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