In 2008, Congress passed GINA , the Genetic Information Nondiscrimination Act. At the time it was passed it seemed odd, because there didn’t seem to be whole lot of genetic information discrimination going on. In fact, lawyers and employers commented that it was a solution looking for a problem.
GINA makes it “an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee.” GINA prohibits the use of genetic information in employment, prohibits the intentional acquisition of generic information about applicants and employees, and imposes strict confidentiality requirements. According to the U.S. Equal Employment Opportunity Commission, genetic information generally includes information about an individual’s genetic tests, genetic tests of a family member, and family medical history.
For years, employers were vindicated with the utter lack of any momentum under this law. Last year, of the discrimination charges filed with the EEOC, the agency charged with enforcing GINA, only 0.4 percent of the charges filed contained a GINA allegation.
Seven years after the passage of GINA, however, no one is laughing at a $2.2 million verdict that was just handed down against Atlas Logistics, an Atlanta grocery warehousing firm, for GINA violations. The case arose after Atlas was trying to find the identity of the person(s) habitually defecating in one of its warehouses. “To solve the mystery of the devious defecator” (the judge wrote in denying summary judgment), Atlas requested the two plaintiffs to submit to a cheek swab so it could compare the DNA from cheek cells to that of the “offending fecal matter.” The two plaintiffs were not a match, but nonetheless sued under GINA, claiming that the collection of the DNA was a prohibited act under the law.
Atlas claimed that the lab analysis of the DNA was not covered by GINA. Atlas argued that “genetic information” referred “only to information related to an individual’s propensity for disease.” The court considered whether the term “genetic information” as used in GINA encompassed the information Atlas requested in this case. The court ruled in favor of the plaintiffs on summary judgment, holding that the DNA analysis conducted by an external lab on behalf of Atlas consisted of an evaluation of “genetic information” in violation of the law.
With this ruling, the issue for the jury was only how much must the company pay for its violation. Turns out, a whole lot. On June 25, 2015, an Atlanta jury awarded one plaintiff $250,000 and the other $225,000 to compensate them for “emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-monetary loss.” In addition, the jury awarded the plaintiffs $1.75 million against Atlas after concluding that Atlas “acted with malice or with reckless indifference to the Plaintiffs’ federally protected rights such (that) punitive damages should be assessed against them.”
And that’s what a $2.2 million verdict looks like. Anyone with common sense must know that this verdict demonstrates how difficult it is to run a business in America. Here is a case where an employer, desperate to find out who was engaging in this disgusting and inappropriate conduct, used the means it deemed appropriate and available to render a finding. It used no intrusive methods – just a swab in the cheek. GINA was likely the last thing on their minds.
Employers need to realize that they have to get it right 100 percent of the time, and if they don’t, a heavy hand will render a heavy verdict. There is a likelihood here that the verdict will be reduced due to a mandatory cap, or that the matter will be appealed and reversed. We are walking in new territory with GINA.
However, this law has started to creep into the employer’s business in ways of wellness programs and other means. So on the one hand the government forces employers to provide health care, leave for medical reasons and reasonable accommodations. On the other, it tells employers to back off from intruding into the medical histories of their employees. Indeed, the Department of Labor just updated its Family and Medical Leave Act forms to include a GINA disclaimer.