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By:  Dan Cohen – 12/30/15

The Genetic Information Nondiscrimination Act (GINA) was signed into law on May 21, 2008.  GINA protects individuals against discrimination based on their genetic information in health coverage and in employment.  Title II of GINA makes it illegal for employers to use a person’s genetic information when making decisions about hiring, promotion, and other terms of employment. GINA also prohibits employers from requesting, requiring or purchasing genetic information and strictly limits the disclosure of genetic information. According to the EEOC, an employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work.

Genetic information means information about an individual’s genetic tests, the genetic tests of family members of the individual, as well as the manifestation of a disease or disorder in family members of the individual (i.e. family medical history). Genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, if the analysis detects genotypes, mutations, or chromosomal changes. Since its inception, most employers have struggled to figure out how GINA would impact the workplace beyond prohibiting them from seeking out family medical history information during post-offer medical examinations.

In Lowe v. Atlas Logistics Group Retail Services, LLC, Case No. 1:13-cv-2425 (ND GA 2015), a federal court in Georgia provided employers with a real life example of how GINA impacts the workplace. Atlas Logistics, which provides long-haul transportation services for the grocery industry, learned that one or more operators of their vertical reciprocating conveyors was defecating in one of its warehouses. Through its investigation, Atlas narrowed the list of possible employees to Jack Lowe and Dennis Reynolds. Atlas then retained the services of an outside lab to perform a comparison of cheek swabs from the two employees to the fecal matter that had been collected from the warehouse. The lab’s analysis was used to compare DNA from one sample to another, but could not be used to determine an individual’s propensity for disease or disorder. The test results did not produce a match, but were communicated to Atlas.

Lowe and Reynolds filed charges with the EEOC, which were dismissed. They then brought suit under GINA, alleging that Atlas had illegally requested and required them to provide their genetic information and had illegally disclosed it. The question for the court was whether the information requested and obtained by Atlas was “genetic information” under GINA. The Court answered this question in the affirmative. According to the Court, the request fell within GINA’s definition of a genetic test. The Court rejected Atlas’ contention that a “genetic test” should exclude testing that does not reveal an individual’s propensity for disease. The jury then returned a verdict of $2.2 million in damages for the plaintiffs, though the test results had no impact upon them.

Most employers would want to know which one or group of its employees was anonymously defecating in its workplace. But, I doubt any would want to spend $2.2 million to find out, or as Atlas Logistics learned, not to find out at all. This was probably a job for some good old-fashioned surveillance cameras. Because GINA is still relatively new, and case law interpreting the statute sparse, employers looking to obtain any genetic information for any purpose should consult with counsel first, less they wish to find themselves in a messy situation like Atlas Logistics. In any case, remember, don’t play CSI at work if it involves DNA testing.