Employers: Don’t Ask Your Employees for Their DNA

Yaralyn Mena and Edgar M. Rivera, Esq.

Atlas Logistics Group Retail Services (Atlas), which operates warehouses for the storage of products sold at a variety of grocery stores, found itself in a bizarre situation after discovering human feces on the floor of one of its warehouses. Apparently, an Atlas employee had been defecating in the warehouse, resulting in the destruction of grocery products. Atlas had no idea who the “devious defecator” was, and no employees were coming forward with any information. The ongoing incidents provoked Atlas to conduct an in-house investigation. In a misguided effort to identify the perpetrator, Atlas subjected several employees, including Jack Lowe and Dennis Reynolds, to cheek swabs to check their DNA against that found in the feces. Atlas told Mr. Lowe and Mr. Reynolds that if they refused to be tested, they would be disciplined. Lowe and Reynolds complied; they were not matches, and the serial defecator presumably remains at large.

Lowe and Reynolds sued Atlas pursuant to the Genetic Information Non-Disclosure Act (GINA). Under GINA, employers cannot attain, or require employees to disclose, employee genetic information for any employment purpose, including hiring, firing, promotions, and training. Lowe and Reynolds alleged Atlas violated GINA by requiring them to take the cheek swab with the intent to extract DNA and sending that genetic information to a third party. Atlas did not inform the employees of their rights under GINA and told them not to tell other employees of the request for their DNA sample.

Atlas moved for summary judgment, arguing that the information it requested and obtained was not “genetic information” covered by GINA. U.S. District Judge Amy Totenberg concluded that it was, denying Atlas’ motion for summary judgment to dismiss Lowe’s and Reynolds’ claims and granting Lowe and Reynolds summary judgment as to liability. After a trial on the issue of damages, the jury awarded the plaintiffs $2.2 million to Lowe and Reynolds, consisting of $475,000 in emotional distress damages, and approximately $1.75 million in punitive damages for the employer’s blatant violation of Lowe’s and Reynolds’ protected rights. Dion Kohler, Atlas’ attorney, is adamant that his client did not knowingly or recklessly violate the law, proclaiming, “It’s not over.”

Congress passed GINA to prevent discrimination against employees through genetic information. This assurance of confidentiality encourages employees to receive genetic testing for health reasons without having to fear disclosing any results to their employers. Employers also do not have the right to ask employees for genetic information about any member of their family. GINA also protects employees from harassment in the workplace based on genetic information such as a disease an employee may have.

During the Presidential Commission for the Study of Bioethical Issues on “Privacy and Progress in Whole Genome Sequencing,” experts argued that unauthorized access to one’s genetic information is itself a dignitary violation. Although calculating the quantity of that harm is difficult, employees must be aware that GINA protects them from such violations.

If you believe your employer has required to your provide genetic information, please contact The Harman Firm, LLP.