Message From the Chair
Benjamin I. Fink, Berman Fink Van Horn PC
The marquis event of our section every year is our Advanced Employment Law seminar. This year, that seminar is scheduled for Friday, March 27, 2015. We have lined up a great panel of speakers and we believe it will be highly informative and educational.
We hope that you can make it to the seminar. The seminar will provide 6 CLE hours, including 3 Trial Practice hours, 1 Ethics hour and 1 Professionalism hour. If you are short on your hours and need to complete your requirements for 2014, this is a perfect opportunity for you to do so. I look forward to seeing you at the March seminar.
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The Impact of GINA on the Ability of Employers to Perform DNA Identification Tests on Their EmployeesBy Benjamin A. Stark, Barrett & Farahany LLP
Imagine a scenario straight out of the movies: A major corporation discovers that security at its laboratory has been compromised. Somebody broke in, stole some corporate secrets and escaped. But wait! It appears the thief cut himself on the way out and left a blood sample. Our hero, a dedicated corporate executive, believes the thief was an employee of the corporation. And he is determined to use sophisticated DNA identification technology to find the dastardly thief.
Our hero hires a nationally renowned laboratory to conduct the DNA identification tests. He has each suspected employee come to a meeting and requests that each such employee voluntarily submit a sample of his or her DNA to the laboratory. Each employee, not wanting to look like they have something to hide, agrees to submit a DNA sample. The samples are sent to the lab, and our hero instructs the lab to compare the employees' DNA samples to DNA in the thief's blood sample and report to him whether there is a match. He specifically instructs the lab not to provide any other information that could be gleaned from the employees' DNA, including whether they possess a genetic predisposition to disease.
Months later, one of the tested employees - whose DNA sample did not match the DNA in the blood sample left by the thief - sues the company, alleging her rights were violated under the Genetic Information Nondiscrimination Act of 2008 ("GINA"), 42 U.S.C. � 2000ff, et. seq. Our hero is shocked. "But I didn't discriminate against anybody!" he says. "How could I have violated GINA?"
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You can Have a Baby or you can Have a Job; Not Both
By Elizabeth "Lily" Brown Tillery, Barrett & Farahany, LLP
WHAT IS PREGNANCY DISCRIMINATION?
For the seasoned employment attorney, the answer to the above-posed question may seem obvious. The basic notions of what constitutes pregnancy discrimination are, more or less, those echoed by the perhaps slightly oversimplified concept encapsulated in the title of this article. But in truth, the answer is not always as clear as it may seem. To properly examine the question of what constitutes pregnancy discrimination, we must begin where all - or at least most - legal questions venture first: to the guiding code section(s).
In the matter of pregnancy discrimination, the governing law is the Pregnancy Discrimination Act of 1978 ("PDA"); a 1978 amendment to Title VII of the Civil Rights Act of 1964 ("Title VII").1 In pertinent part, the PDA provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work."2 Setting aside the medically sterile aftertaste of the phrase "affected by pregnancy" being used to describe the process of creating a new life, what are the practical and legal ramifications of this code section? At the start, we have our most fundamental answer to our proffered question. Pregnancy discrimination is treating a pregnant employee in an adverse way as a result of her pregnancy, and as compared to her qualifying coworkers.
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