HDR thirdshift

A (ahem) sticky situation to be avoided

A recent decision of the United States District Court for the Northern District of Georgia illustrates the importance of employee privacy protections even in the face of the most foul sorts of conduct.

In Lowe v. Atlas Logistics Group Retail Servs. (Atlanta), LLC (decided on May 5, 2015), the defendant employer, a logistics company, maintained several warehouses for the distribution of grocery store items. One or more of the company’s employees, for reasons not given in the court’s order, determined that it would be appropriate to make a habit of defecating in one of the defendant’s warehouses. This, of course, presented health and safety concerns, as well as forcing the company to destroy items that had become tainted by the offending excrement.

Apparently unknown to the devious defecators, would-be Encyclopedia Browns have new tools at their disposal. The company hired a genetic testing laboratory to perform mouth swabs of all of the company’s employees at the warehouse. The lab then performed a so-called “short tandem repeat” (STR) analysis on the mouth swabs and the DNA samples conveniently provided by the offenders. STR analysis cannot determine whether someone has a particular gene sequence or might exhibit a particular trait; rather, it simply compares the spaces between an individual’s genes, which vary widely from person to person. This comparison is useful as an identification tool.

Two employees (who, so far as the investigation determined, had appropriate potty training) filed charges with the Equal Employment Opportunity Commission (EEOC) under the Genetic Information Nondiscrimination Act. GINA generally prohibits an employer from requesting, requiring, or purchasing genetic information about an employee. 42 U.S.C. § 2000ff-1. Although the EEOC decided not to pursue the action, it issued a right-to-sue letter to the plaintiffs, who sued their employer in the federal court.

Despite the company’s argument that GINA’s legislative history demonstrated Congressional intent to limit the term genetic information to information about individual’s propensity for disease, the court held that this argument contradicted the plain language of the statute and that Congress rejected limiting GINA in the manner the company suggested.

We hope the facts of this case aren’t something you encounter in the day-to-day operation of your business. However, companies should be on notice that obtaining genetic information, even in the face of extreme provocation, about their employees or potential employees (or their families, for that matter) is a prohibited practice under federal law.

The defendant in this case could have either put a stop to or discovered the source of the defilement of its warehouse with the installation of video cameras; and, in all honesty, the underlying facts here seem to speak to some deep-seated labor unrest that the company could have handled in a more productive manner than demanding cheek swabs from its employees.

Update as of June 22, 2015: At trial, a jury awarded the two plaintiffs $225,000 and $250,000 in compensatory damages and punitive damages of $1,750,000. Although it is likely that the court will reduce these awards as in excess of Title VII’s statutory maximums, the jury still sent a strong message to employers seeking to obtain genetic material from their employees.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.


© 2015

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Tuesday, 21 August 2018

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