Jury Awards $2.2 Million to Employees Over DNA Tests in Violation of GINA in “Devious Defecator” Case

A federal court jury in Georgia recently awarded $2.22 million to two employees in what is believed to be the first jury verdict in a Genetic Information Nondiscrimination Act (“GINA”) employment case since the law went into effect in 2008. Dubbed the “devious defecator” case by the court, Lowe v. Atlas Logistics Group Retail Services (Atlanta), LLC involved an employer’s testing of two employees’ facial cheek (or “buccal”) swabs to identify whether either was the individual who had been repeatedly defecating on the employer’s premises. All jokes aside, the decision is notable, not only because it is one of the few, if only, jury verdicts awarded under GINA, but because it serves as an important warning to employers that GINA may apply more broadly than some initially believed, while also possibly providing a blueprint for other courts on how to interpret the statute.

Factual Background

The events leading up to the lawsuit require little introduction. As aptly set forth in the first paragraph of the court’s opinion:

Atlas Logistics Group Retail Services (Atlanta), LLC (“Atlas”) operates warehouses for the storage of products sold at a variety of grocery stores. So one could imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses. To solve the mystery of the devious defecator, Atlas requested some of its employees, including Jack Lowe and Dennis Reynolds, to submit to a cheek swab. The cheek cell samples were then sent to a lab where a technician compared the cheek cell DNA to DNA from the offending fecal matter. Lowe and [Reynolds] were not a match. With the culprit apparently still on the loose, Lowe and [Reynolds] filed suit under the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., which generally prohibits employers from requesting genetic information from its employees.

Background of GINA

GINA makes it illegal to discriminate against employees or applicants because of genetic information. The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment. GINA also prohibits employers from requesting, requiring, or purchasing the genetic information of a potential or current employee, or his or her family members. GINA defines genetic information as “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.” In turn, “genetic test” is defined as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes,” but does not include an “analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes.”

The law does provide a number of exceptions, however, including, but not limited to (i) the inadvertent acquisition of genetic information, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness; (ii) genetic information obtained as part of health or genetic services, such as wellness programs, offered by the employer on a voluntary basis; and (iii) family medical history acquired as part of the certification process for FMLA leave. Where an employer does have the genetic information of an employee, the employer must keep it confidential and in a separate medical file.

The Lowe Court’s Decision

Both parties moved for summary judgment. The issue before the court was whether the term “genetic information” as used in GINA encompassed the type of testing Atlas had requested. Atlas argued that the information it requested concerning the plaintiffs’ DNA analysis did not constitute “genetic information” as defined in GINA because, according to Atlas, “genetic information” refers only to information related to “an individual’s propensity for disease,” and, because it was undisputed that the testing Atlas had requested did not reveal such information, there could be no violation of GINA.

The court quickly rejected this argument: “This proposed definition of ‘genetic tests’ – a definition which limits genetic tests to those related to one’s propensity for disease – renders other language in GINA superfluous, and should thus be rejected.” Atlas also argued that the EEOC regulations promulgated under GINA, and which provided a list of examples of genetic tests, supported a narrow interpretation of the statute so as to exclude testing that did not reveal an individual’s propensity for disease. The court rejected this argument, too, because, although tests like the one requested by Atlas (the “PowerPlex21”) was absent from the EEOC’s list, that did not mean the test was not the type of test contemplated by GINA. Moreover, because at least two of the EEOC’s examples involved testing that also did not relate to one’s propensity for disease, if the court applied Atlas’s narrow definition of “genetic tests,” those examples “would go beyond the scope of the statute.”

Notably, the court ruled that it did not have to decide whether the plaintiffs even objected or were coerced into providing the samples, as Atlas’ mere request for the samples was enough to trigger a violation of GINA. “The Court’s decision turns on whether Atlas requested genetic information, not whether [the plaintiffs] voluntarily gave a DNA sample,” the court concluded.

The court therefore granted the plaintiffs’ partial summary judgment as to liability, and sent the matter of damages to a jury. The jury later awarded the plaintiffs a total of $475,000 for emotional pain damages, and also found that Atlas acted with “malice and reckless indifference” to the plaintiffs’ federally-protected rights and imposed $1.75 million in punitive damages.

Conclusion

While the intent of GINA was to protect employees with a propensity for or family history of certain genetic diseases from discrimination and harassment in the workplace, the Lowe decision demonstrates that at least one court has been willing to interpret the statute more broadly than perhaps was intended. Lowe also serves as a real-life example (albeit one from the “You Can’t Make This Stuff Up” category) that highlights the potentially serious implications for employers who violate GINA. Because the statute is still relatively new, and case law interpreting the statute is still developing, employers considering obtaining any genetic information for any purpose would be wise to consult with counsel before they attempt to do so, less they wish to find themselves in a messy situation like the employer in Lowe. For answers to any questions regarding this blog or with regard to GINA, genetic information, or genetic testing of your employees, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

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