The subhede for this post has been updated to clarify that GINA protects against genetic discrimination.
It's one thing to say that there are laws in place to protect people against genetic discrimination, but it's another thing entirely to successfully enforce those laws, write Jennifer Wagner and Dan Vorhaus at Genomics Law Report. The case of EEOC v. Nestle Prepared Foods — in which a worker filed "a charge of genetic discrimination in employment" against Nestle because he says the company used the information it collected during a medical examination to terminate his employment — shows that enforcing laws like the Genetic Information Nondiscrimination Act of 2008 will be challenging, Wagner and Vorhaus write. When the Equal Employment Opportunity Commission sought information from Nestle on any other employees who may have been fired after having a medical examination for job fitness, a court refused to force the company to turn over the documents, even after EEOC argued that they could prove a pattern of genetic discrimination at the company. The judge disagreed, Wagner and Vorhaus say, calling the information requested "irrelevant," adding that the EEOC subpoena amounted to a "fishing expedition."
"Cases with direct evidence of discrimination are unusual, and most alleged victims have little choice but to try to prove individual disparate treatment claims using circumstantial evidence to show either a pretext or mixed-motive for the employment decision at issue," Wagner and Vorhaus add. "While GINA expanded the scope of federally prohibited discrimination to include the use of genetic information by certain employers, including family history, GINA did not address the burden shifting involved in establishing that discrimination has actually occurred." This case, they say, is a reminder that GINA is still new, and people who want to use its protections are still feeling their way through the courts — learning how to use the law will take time.