Two plaintiffs at Atlas Logistics Group Retail Services (Atlanta), LLC (a logistics company for grocery stores), sued, claiming violations under the Genetic Information Nondiscrimination Act (“GINA”). This case is entitled: Lowe, et al. v. Atlas Logistics Group Retail Services (Atlanta), LLC, Civil Action NO. 1:13-CV-2425-AT, United States District Court, Northern District of Georgia.

The plaintiffs, Jack Lowe and Dennis Reynolds, worked in 2012 at Atlas’s Bouldercrest warehouse facility where it stored grocery items to be distributed later to grocery retailers. Beginning in 2012, human defecation appeared numerous times in Atlas’s warehouse. Atlas began an investigation and took various preventative measures. It retained Speckin Labs to help with the investigation.   Atlas called the plaintiffs into the warehouse office, where it requested that the plaintiffs provide cheek swab samples of tissue to a representative of Speckin Labs to compare the plaintiffs’ DNA to the DNA from the defecation samples taken.

Although the parties disputed whether samples were given voluntarily, the testing on said samples established that there were no matches between the plaintiffs’ DNA swabs and the fecal matter sampled from the offending defecation.

In 2013, the plaintiffs filed a lawsuit charging the company with violating their rights under GINA, based on their employer’s having obtained their genetic information. Atlas denied liability. Nevertheless, the court ruled that Atlas’s request for and obtaining of plaintiffs’ genetic information through the swabs was a violation of the law, irrespective of whether the plaintiffs voluntarily responded to the company’s request.

Thus, the sole issue for the jury was the amount of damages, if any, to which the plaintiffs were entitled. In particular, the court instructed the jury to consider awards for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-monetary losses that were the result of Atlas’s request for their genetic information. Atlas denied that plaintiffs suffered any such damages. The court did determine, before submitting the issue of compensatory damages to the jury, that Atlas was not responsible for whatever emotional or other harm plaintiffs experienced as a result of hearing their individual co-workers make independent derisive or mean comments, as such comments could not be attributed to Atlas or its managerial staff. Yet, the court likewise instructed the jury to consider whether the statements made by plaintiffs’ co-workers, as a result of Atlas’s request for plaintiffs’ genetic information, damaged plaintiff’s reputation. Notably, the plaintiffs did not allege harassment based on the GINA violation in their complaint.

The court also instructed the jury to consider awarding punitive damages to punish Atlas for its GINA violation and to deter similar wrongful conduct in the future. Punitive damages would be awarded if the jury found that Atlas acted with malice or reckless indifference to the plaintiffs’ federally protected rights under GINA.

A jury verdict was rendered the same day the trial concluded.  The jury awarded Mr. Lowe $250,000 in compensatory damages and Mr. Reynolds $225,000 in same. The jury then awarded the plaintiffs $1.75 million in punitive damages.

The next day after the jury verdict was rendered, Atlas moved for remittitur pursuant to the statutory damages cap applicable to claims under GINA. The available damages for GINA violations are set forth in 42 U.S.C. § 1981a.   See 42 U.S.C. § 2000ff-6(a)(3). Under 42 U.S.C. § 1981a(b(3), for employers with 500 employees or more in the current or preceding calendar year of the violation, the combined total of compensatory and punitive damages shall not exceed $300,000 for each complaining party. Atlas’s motion for remittitur is pending.

Assuming the motion to remittitur is granted, and many expect it will be, this is still $600,000 in judgments against Atlas. Even with a statutory reduction in damages, the jury verdict should still serve as a warning to employers regarding what can go wrong if GINA is violated.

It has been six years since GINA was made effective law on November 21, 2009, and almost five years since the EEOC issued its final regulations on GINA. GINA is aimed at preventing the misuse of “genetic information” by employers. And, in the wake of the Atlas case, one can see that requesting genetic information can constitute a GINA violation, even if the genetic information requested is not used to make a predictive assessment of an individuals’ propensity to get an inheritable genetic disease or disorder. In the Atlas case, the genetic information was sought pursuant to an employer investigation in which it had a legitimate business interest—preventing future instances of defecation near warehoused food.

It would seem, based on congressional history, that the main intent of GINA is to prohibit employers from making a “predictive assessment concerning an individuals’ propensity to get an inheritable genetic disease or disorder.” Poore v. Peterbilt of Bristol, LLC, 852 F.Supp.727, 730 (W.D. Va. 2012)(quoting H.R.Rep. NO. 110-28, pt. 3, at 70 (2007), 2008 U.S.C.C.A.N. 112, 141. The purpose of GINA being to prevent employers from using genetic information to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against  any employee because of genetic information with respect to the employee.

Nevertheless, despite the seeming purpose of preventing discrimination in employment based on an employee’s genetic information, the statute’s language goes further in not allowing employers to collect genetic information. In fact, the plain language served as the basis for the plaintiffs’ motion for summary judgment as to liability, which the court granted while referring to the still-unknown culprit as the “devious defecator.” The Atlas court held that “the unambiguous language of GINA covers Atlas’s request for Lowe’s and Reynold’s genetic information and thus compels judgment in favor of Lowe and Reynolds.” The court found that this was not one of the “rare instances where overwhelming extrinsic evidence demonstrates a legislative intent contrary to the text’s plain meaning.”

The plain language provides that it is “an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee.” 42 U.S.C. § 2000ff-1(b). Section 2000ff-1(b) lists six exceptions to this general prohibition, none of which applied to the Atlas case. The parties disagreed as to the term “genetic information.” GINA defined “genetic information” as “information about (i) [an] individual’s genetic tests, (ii) the genetic tests of family members of [an] individual, and (iii) the manifestation of a disease of disorder in family members of such individual.” GINA defined “genetic test” as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations, or chromosomal changes.” And, in Atlas, the employer did indeed hire an expert to conduct an “analysis” of the plaintiff’s DNA. Thus, the court ruled that this was a violation of GINA.

The sole issue of damages went to the jury who awarded over $200,000 per plaintiff in compensatory damages and $1.75 million in punitive damages.

As mentioned above, none of the exceptions to GINA applied to Atlas’s investigation. These exceptions, based on EEOC guidance, are as follows:

  • Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.

  • Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.

  • Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition.

  • Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and online discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).

  • Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.

  • Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.

    Since contamination of food supply could violate a law, one could try to argue the applicability of this last exception. However, this exception seems to apply only to the actual forensic labs to use as a baseline for detecting sample contamination. Either way, extreme precaution should be exercised before making a decision that could be construed as a request for an employee’s genetic information.

     


 

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