Employees Required To Take DNA Test Awarded $2.2 Million Under GINA

by Steve Bogue

Bogue, A. Stevenson
(402) 341-3070

The Genetic Information Nondiscrimination Act of 2008 (GINA) makes it an unlawful employment practice for an employer to request, require or purchase genetic information with respect to an employee. Nonetheless, because an unknown number of employees had been defecating in one of its warehouses, necessitating the destruction of grocery products on at least one occasion, a company proceeded to narrow down the list of employees who might have been involved by retaining an outside lab to analyze employees’ DNA and match it to fecal material. The lab found no matches.

The subsequent lawsuit filed by employees in Lowe v. Atlas Logistics Group Retail Services claimed that GINA was violated when the employees were tested for DNA to determine whether they had defecated in the employer’s warehouse. The complaint was greeted dismissively and with a fair amount of derision by many. A jury saw it differently and awarded damages to the employees including $1.75 million in punitive damages, which are damages designed to punish reckless or malicious conduct by an employer. The employer’s argument that a genetic test should be construed to mean a test only for the propensity for a disease was rejected.

The case is one which will not be viewed, in retrospect, to be a landmark legal decision. It involves odd facts, which, viewed from a distance, could even be described as “silly.” Nonetheless, and if it does carry a message to employers, it is that any testing of an employee’s DNA for any purpose related to their employment or employment benefits should be avoided unless the employer has obtained a legal opinion on the practice.

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