Wacky Wednesday: “Devious Defecator” Problem Does Not Release Employer From GINA Obligations

On Monday, jurors awarded Plaintiffs Jack Lowe and Dennis Reynolds $2.25 million dollars in a GINA (Genetic Information Nondiscrimination Act) action brought against their employer, Atlas Logistics Group Retail Services.

The background facts reveal that supervisors became frustrated trying to figure out who was leaving piles of feces around the facility. Oddly, their frustration does not seem unreasonable. The supervisors suspected two individuals and with HR and union representatives present, pulled them aside and requested to swab the inside of their mouth to obtain a genetic analysis that could then be compared with the DNA in the feces. The two individuals, Reynolds and Lowe, alleged they feared for their job and complied. Word quickly spread of the test and the two allege they were the objects of humiliating jokes. The two men were ultimately cleared—their DNA not being a match to the feces, and kept their job with the company, but sued alleging a GINA violation. Atlas never discovered who was responsible for the acts.

In May, the Court found that the test, while it did not reveal any medical information, did fall under GINA. Although the employer did not obtain any information regarding medical conditions (nor was it seeking any such information), a GINA violation was still found to occur, which would appear to extend the law much further than what Congress appears to have envisioned. This case is one of only a few GINA cases to go to trial and provides an interesting analysis of how extensively the law could be interpreted. It is unclear whether Atlas will appeal.