Posted on 06/25/2015 at 11:16 AM by Russell Samson
A federal jury in Georgia recently awarded two men damages totaling $2,225,000.00 because their employer violated the federal Genetic Information Nondiscrimination Act of 2008 (GINA). Lowe et al v. Atlas Logistics Group Retail Services (Atlanta), LLC, Case # 1:13-cv-02425, arose when a company that provided warehousing for grocery stores had a problem: Someone was habitually defecating in one of its warehouses. Perhaps having watched too many CSI / NCIS shows where laboratory testing yields quick and accurate results, the company required some employees to provide a DNA sample through a cheek swab. The collected employee specimens were to be compared to the DNA of the workplace defecator (no doubt that DNA came by way of a different kind of cheek). GINA absolutely prohibits employers from discriminating in employment based on genetic information.
GINA also provides that it is illegal for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee (except in very limited circumstances). GINA defines the term genetic information to include information about an individual's genetic tests, or the genetic tests of members of the individuals family, or the manifestations of a disease or disorder in family members. Further, a genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes. The Georgia federal judge in this case determined that what the employer had done fit within the statutory definition of genetic test. So the employer, by attempting to track down the defecator through DNA analysis, violated GINA. Neither of the [two plaintiffs] turned out to be the devious defecator, and indeed, nobody was caught or fired as a result of the employers investigation. But what if the DNA of at least one of the employees had matched that of the defecator? Because GINA prohibits an employer from discharging an employee based on genetic information, it appears the entire investigation was doomed from its inception. Even if the defecator had been identified through the testing, s/he could not have been disciplined if the identification process was unlawful. Although the two plaintiffs had no loss of employment, or even of income, each claimed to have suffered great emotional distress by being required to have the inside of his mouth swabbed to obtain a DNA sample. As compensation, the jury awarded $250,000.00 to one and $225,000.00 to the other. The remaining $1.75 million was awarded by the jury as punitive damages. Given the amount of damages awarded by the jury, I smell an appeal. (Yes, that was purposeful.) The employer has already filed a motion to reduce the damage award, arguing that GINA caps total compensatory and punitive damages at $300,000 for each complaining party.
See 42 U.S.C. §2000ff6(a)(3) and 42 U.S.C. §1981a(b)(3). But beyond the $600,000 cap, there are attorney fees and costsboth the employers own costs to defend and the employers liability for the plaintiffs costs to prosecute. It may bear watching to see if an appellate court agrees with the judges apparent conclusion that the statutes definition of a genetic test extends to specimen collection to obtain cheek cells (as opposed to specimen collection to obtain saliva) for DNA testing, and to the actual laboratory testing, which was undertaken solely to compare the DNA of donors and that of a perpetrator to identify a person who engaged in workplace misconduct. In the meantime, Iowa employers who do not wish to make themselves a test case in the Eighth Circuit should steer clear of employee DNA specimen collection or DNA testing, especially for investigatory purposes. DNA testing may work great on television for catching criminals or clarifying paternity (you are not the daddy). But this case teaches that DNA testing cant be used to catch a wrongdoer in the workplace. But I would be remiss before ending this post if I didnt so I do urge you to go back and re-read the excerpt of the definition of genetic information in 42 U.S.C. §2000ff(4)(A)(iii). It specifically includes information about the manifestation of a disease or disorder in family members of such individual. Employers may wish to include training on GINA for managers generally.
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