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Sunday, January 23, 2011

The Genetic Information Nondiscrimination Act and The Mentalist

A recent episode of The Mentalist showed the very first violation of the Genetic Information Non-Discrimination Act (GINA) that I’ve seen on TV. If you don’t know about GINA, it’s the law that says employers can’t discriminate based upon the genetic information of an employee. I think The Mentalist crossed that line in the latest episode. I talked about this from a writer’s perspective previously. But now, wearing my lawyer hat, I want to talk about why it’s a violation.

GINA says:

(a) Discrimination Based on Genetic Information.--It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or

(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

The writers didn’t mean to have their character violate the law. But they did it all the same. In the latest plotline, Internal Affairs is investigating the department because a very bad guy burst into flames in his jail cell. He needed killing, as any one of the cops would tell you. This episode focused on CBI Agent Rigsby. I won’t rant about the fact that he was meeting with the IA investigator without his union rep (it’s wrong, wrong, wrong!). Okay, a little rant.

No, this rant is about the fact that the investigator looked into Rigsby’s past and found that his father had quite a colorful criminal past. The investigator then announced that criminal behavior can be genetic and that he was looking into Rigsby as a result of his association with his father. Hello? Can you say lawyers and lawsuits?

The term “genetic information” is defined under the Act as:

(A) In general.--The term “genetic information” means, with respect to any individual, information about--

(i) such individual’s genetic tests,

(ii) the genetic tests of family members of such individual, and

(iii) the manifestation of a disease or disorder in family members of such individual.

Here, the investigator decided that Rigsby’s father’s criminal behavior was a manifestation of a genetic disorder. Once the investigator decided that Rigsby’s father, and therefore Rigsby, had a genetic condition, he can’t discriminate against him because of it. Specifically, he can’t “classify [him] in any way that would deprive or tend to deprive [him] of employment opportunities or otherwise adversely affect the status of the employee . . . .” That includes putting him under the microscope in an investigation, questioning him about other incidents from years ago, and harassing him.

I adore Simon Baker and will continue watching just for his smile (and the mostly excellent writing) but please stop this ridiculous plot line (and for God’s sake, get Rigsby a union rep) before I throw a shoe at the TV screen.

From a lawyer’s perspective, I hate it when shows get the law wrong because my clients learn what they know about employment law from TV way more than they learn it from reading their handbooks or (sadly) this blog. And most shows get this stuff laughably wrong. So, dear workers of the world, it’s fiction! Don’t rely on TV shows for legal advice. Ever.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.