June 8, 2015

GINA and the Case of the "Devious Defecator": Broad Prohibition Impacts Nonprofit Employers

4 min

UPDATE: On June 22, 2015, a federal jury awarded more than $2.2 million to the plaintiffs, an amount that will likely be reduced to $600,000 in accordance with statutory maximums.

A federal judge in Georgia has ruled that the federal Genetic Information Nondiscrimination Act of 2008 (GINA)'s prohibition against collecting an employee's genetic information includes genetic information that has nothing to do with the employee's predisposition to illness or disease. You will be hearing about this case, and you won't forget it once you do, because the case all began with human feces.

GINA prohibits employers – including nonprofit organizations, from making employment decisions based on an employee's or applicant's genetic information. 42 U.S.C. § 2000ff et seq. It also prohibits employers, except in rare circumstances, from even requesting, requiring, or purchasing such genetic information. 42 U.S.C. § 2000ff-1(b). GINA broadly defines the "collection" of genetic information to include verbal "collection" of information, such as asking employees about their family medical history. The consequences of violating GINA are very real.

The Case of the "Devious Defecator"

The "requesting information" prong was the issue in the case dubbed affectionately by the presiding judge as the mystery of the "Devious Defecator." The mystery in Jack Lowe and Dennis Reynolds v. Atlas Logistics Group Retail Services (Atlanta), LLC? Which employee was moving his/her bowels around the company's grocery warehouse. To "get to the bottom" of the mystery, the company required two employees to submit cheek swabs and sent those swabs to a lab where the DNA on the swabs was tested against the mystery "night soil." The lab results exonerated the employees. Feeling humiliated, the employees filed charges with the EEOC. The EEOC dismissed the charges, finding that the cheek swabs did not violate GINA.

The employees then sued in federal court, contending that the DNA taken from their cheeks constituted "genetic information," which the company was prohibited from "requesting or requiring" and "disclosing" under GINA. The company responded that the DNA test conducted by the lab does not determine a person's predisposition for any illness, and thus the test result did not constitute "genetic information" forbidden by GINA.

The court ruled in favor of the employees. Judge Totenberg explained that "genetic information" under GINA includes even genetic test results that are unrelated to any predisposition to illness. GINA's definition of "genetic information" includes "with respect to any individual, information about (i) such individual's genetic tests…."

This ruling is important. It means that GINA's prohibition against acquiring "genetic information" is broader than what some might have thought. According to the judge's decision, this employer had no intention of acquiring health-related "genetic information" about these employees, but nonetheless violated GINA. As a result, the company is now facing the damages phase in federal court in Atlanta, Georgia.

Limited Exceptions under GINA

Beware of the broad reach of GINA. Nonprofit employers – and all employers – are generally not permitted to request, require, or acquire genetic information, unless they meet one of the limited exceptions:

  • Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member's illness.
  • Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by an employer on a voluntary basis if certain specific requirements are met.
  • Family medical history may be acquired as part of the certification process for FMLA leave (or leave taken under similar state or local laws or pursuant to an employer policy) where an employee is asking for leave to care for a family member with a serious health condition.
  • Genetic information may be acquired through commercially and publicly available sources such as newspapers and other mass media, as long as nonprofits are not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and online discussion groups that focus on issues like the genetic testing of individuals and genetic discrimination).
  • Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in a workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
  • Acquisition of employees' genetic information by employers that engage in DNA testing for law enforcement purposes as a forensic lab or for the identification of human remains is permitted, but the genetic information may be used only for analysis of DNA markers for quality control to detect sample contamination.

GINA's intent was to protect those with a propensity for, or family history of, certain genetic diseases, but the Jack Lowe decision demonstrates that at least one court reads it more broadly, rather than risk employers accessing genetic information they arguably should not have—such as their employees' DNA profiles. Nonprofit employers should think about this the next time they find a biological mystery at the office.