The Genetic Information Nondiscrimination Act is a relatively obscure law that was enacted in 2008 by Congress to prevent use of genetic information in employment practices. It had not been tested to any degree of notoriety until recently when a federal court jury awarded $2.2 million to a pair of employees who had filed suit against their employer.
The two employees worked for Atlas Logistics Group Retail Services, LLC, a warehouse operation that handled grocery products for Kroger. Unfortunately, Atlas had experienced a string of occurrences of someone defecating in the aisles of the warehouse. Atlas suspected two employees of being the possible defecators and requested that they provide saliva samples to test for a DNA match.
The employees complied, were cleared of guilt, and filed a complaint with the Equal Employment Opportunity Commission. The EEOC found no probable cause of a violation of GINA, and the employees then filed suit in the United States District Court for the Northern District of Georgia.
GINA prohibits employers from discriminating against employees based on genetic information or from using genetic information in employment decisions. In addition, it prohibits employers from requesting, requiring, or purchasing genetic information.
The court allowed the case to go to trial after denying Atlas’ motion for summary judgment. Even though the EEOC had ruled against the employees, it had done so in a somewhat lukewarm fashion. It stated that it was unable to conclude that the information collected violated GINA. It went on to say that its decision did not certify that Atlas was in compliance with the Act.
Atlas contended that genetic information was not collected in the saliva samples. Rather, it was simply to match the DNA of the saliva and the fecal matter. Atlas believed that genetic information would have to include information about a person’s tendency toward disease or health issues. The court disagreed, finding that such a narrow definition of genetic information would render other provisions of GINA superfluous.
This first significant case under GINA will serve as a warning to employers not to venture into the genetic world when implementing personnel practices and policies. From this ruling, it can reasonably be assumed that courts will take a dim view of any use of DNA, and the information to which it can point, for employment purposes.
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