My colleague, Marc Herman, returns today to talk about a subject that doesn’t get a lot of attention but may as the technology makes genetic information more accessible. But just because it’s more accessible, doesn’t make it right. Particularly if you suspect something “smelly” in your workplace.
It’s not often that it comes up, but at a recent presentation, I discussed the implications of the Genetic Information Nondiscrimination Act, 2008––“GINA”––with the audience.
A slight digression is necessary: GINA, a federal law, prohibits employers from making any employment-based decision (such as hiring, firing, disciplining, and promoting) based upon one’s genetic make-up. What is more, in an effort to preempt such conduct, GINA significantly restricts employers’ ability to obtain genetic information about employees and job applicants.
Back to the presentation: many members of my audience, despite hyperbolic, yet entertaining, fictional hypotheticals, found it incredibly difficult to imagine a real-life situation whereby an employer would actually violate GINA––my audience happened to be sticklers for realism.
Slightly disheartened that my hypotheticals lacked the believability factor of a John Grisham novel, I set out to locate a real-life GINA case that perfectly captured the substance of GINA, and exemplified the potential consequences of a violation. . . today, my quest was complete.
(Editor’s note: Eric Meyer of The Employer Handbook appears to be one of the first to talk about the case but it’s too good to pass up.)
Jack Lowe and Dennis Reynolds sued their Georgia employer––Atlas Logistics Group Retail Services, LLC (“Atlas”)––for alleged violations of GINA. See Lowe v. Atlas Logistics Group Retail Services, LLC .
The plaintiffs alleged that they were coerced, under the threat of discipline, into submitting cheek-swabs to assist Atlas in identifying a particular employee. Why?
Because the employer suspected an employee was regularly, and shamelessly, defecating in one of Atlas’s shipping warehouses. According to the employer, the saliva sample was necessary to help identify fecal matter and track down the serial offender.
(The best footnote is from the court: “Apparently, this problem is not as rare as one might imagine.”)
After suing their employer for GINA violations, a Georgia Federal District Court concluded that the cheek-swab constituted a “genetic test” in violation of GINA; and a federal jury awarded the plaintiffs over $2,000,000.
So there you have it––a real-life case that highlights the serious implications stemming from a GINA violation.
. . . and, in case you’re wondering, neither of the plaintiffs was the serial defecator.
(Editor’s note again: Amazingly, this isn’t the first time “poop” has come up on the blog. Specifically, you may recall the case from April 2008, in which an employee was given “The Book of Poop”.)