An Atlanta district court found that an employer violated the Genetic Information Nondiscrimination Act (GINA), as well as an EEOC regulation, when it requested DNA from its employees. According to GINA, but for certain exceptions, “[i]t shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee” 42 U.S.C. § 2000ff–1(b).
An Atlanta-based employer, Atlas Logistics Group Retail Services (Atlas), manages warehouses used for the storage of grocery products, which are eventually sold at a variety of grocery stores. When an anonymous Atlas employee (or employees) decided to repeatedly defecate in one of the employer’s warehouses, Atlas wanted to figure out the identity of this “devious defecator.” In order to do just that, Atlas first asked its Loss Prevention Manager to conduct an investigation, which resulted in a list of employees whose work schedules corresponded with the defecation incidents. This list included the names of two employees, Jack Lowe and Dennis Reynolds. Atlas consequently requested a DNA cheek swab from both employees. The employees’ DNA samples were then sent to a lab to be compared to the fecal samples collected from the warehouse. The lab analyzed the samples, using a test that can determine identity but not an individual's propensity for disease or disorder.
Lowe and Reynolds’ DNA did not match the sample collected from the warehouse and they subsequently filed suit pursuant to GINA. The court contemplated whether the DNA collected from the two employees qualified as the “genetic information” covered by GINA, or whether “genetic information” was limited to the analysis of an individual’s propensity for disease. The court found the statutory language to be unambiguous, concluding that the test conducted by the lab qualified as a “genetic test” under GINA and, as a result, the DNA collected from the two employees qualified as “genetic information.” The court also held, for substantially similar reasons, that the employer violated an EEOC regulation, promulgated under GINA in accordance with 42 U.S.C. § 2000ff–10. The court gave the employees leave to proceed with the remaining claims in their suit. Lowe v. Atlas Logistics Grp. Retail Servs. (Atlanta), LLC, No. 1:13-CV-2425-AT, 2015 WL 2058906 (N.D. Ga. May 5, 2015).
This case serves as yet another example of the privacy protections afforded to employees. Despite the workplace investigation, which narrowed the potential culprits, even a request for DNA solely for identification purposes is a violation of employee rights. Employers are reminded to seek counsel when engaging in workplace investigations.