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HR Focus: GINA and "The Mystery of the Devious Defecator"

Volume 14, Issue 14
July 6, 2015

I love cases with weird facts! And this one has the added benefit of providing an example of a violation of the Genetic Information Nondiscrimination Act (GINA). When I do training on non-discrimination and harassment, I have all sorts of fun and interesting examples of other forms of discrimination - sex, race, age, etc. But not genetic information - at least not until now...

In Lowe v. Atlas Logistics Group Retail Servs. (Atlanta), LLC, the court described the situation as "the mystery of the devious defecator." Apparently, an unknown employee was habitually defecating in one of the company's warehouses. (The court noted that "Apparently, this problem is not as rare as one might imagine," citing to a 2014 Huffington Post article, "EPA Employees Asked to Stop Pooping in the Hallway.") To try to solve the mystery, the company identified which employees were working in the location and at the time of the "defecation episodes." The company then retained a lab to conduct cheek swab testing for DNA analysis, in order to identify the culprit.

Two of the tested employees (neither of whom was the culprit) subsequently brought suit against the company for violation of GINA, which makes it "an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee." The company tried to argue that the information sought was not "genetic information," which it interpreted to mean "information related to an individual's propensity for disease." The court, however, pooh-poohed this crappy argument. The court noted that the plain meaning of the statutory language was not so limited. In addition, the legislative history of the statute established that the company's limited reading of genetic information had been advocated by a small group of legislators but was rejected by Congress. Also, the EEOC's GINA regulations contemplate that genetic testing can occur for reasons other than the identification of disease.

Bottom line - the court found that the testing violated GINA, and the company's defense ended up in the toilet.

[Post Script: A jury awarded the employees $2.2 million in damages!]

This HR Focus article was prepared by Fiona W. Ong of Shawe Rosenthal LLP, a member of the Worklaw® Network, which first appeared in The Labor & Employment Report on June 24, 2015. Reprinted with permission.

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