Plaintiffs Win Big in the “Case of the Devious Defecator”

On June 22, Jurors awarded $2.25 million in damages for plaintiffs Jack Lowe and Dennis Reynolds, whose DNA was unlawfully obtained by their employer, Defendant Atlas Logistics Retail Services (Atlanta), LLC. An Atlanta Judge had already ruled in the case of first impression that Atlas was violating the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., which makes it generally unlawful for employers to discriminate against their employees based on an employee’s genetic information.
Atlas Logistics Retail Services warehouses distribute grocery store products. In this bizarre set of facts, a mysterious employee was defecating in one of Atlas’ warehouses. To try to find the culprit, Atlas tested several employees’ DNA by taking cheek swabs, and sending the information to a lab where the employees’ DNA was compared to the DNA in the fecal matter. Lowe’s and Reynolds’s DNA were not a match, and while Atlas was still trying to find the “devious defecator,” the two filed suit under GINA, claiming that Atlas had unlawfully requested their DNA.
Atlas attempted to argue that the cheek tests are not genetic tests because the comparison was not to obtain information about the employees’ genetic predispositions to disease, but rather a forensic purpose to try find the culprit. However, Judge Totenberg made clear in her opinion that “the unambiguous language of GINA covers Atlas’s requests for Lowe’s and Reynolds’s genetic information and thus compels judgment in favor of Lowe and Reynolds.”
This case sets an important precedent: An employer cannot use an employee’s genetic information for “forensic purposes” or to determine what types of genetic defects they might have. Establishing damages for this case was equally significant because it is difficult to determine what the harm is to the employees, if the genetic information is not used to discriminate against them. Here, the jurors “awarded $475,000 in compensatory damages for mental pain and $1.75 million in punitive damages.”
As the first case under GINA has gone to trial, Judge Totenberg crafted a careful opinion, explaining in detail the legislative history, science, and text to help other courts decide similar issues in the future. As UNC Law Professor John Conley, editor of the Genomics Law Report, pointed out, “This is an application of the law that no one thought of in a million years, but the ruling is not controversial. You can’t use genetic testing for dismissal purposes.”
GINA has been invoked more and more frequently in recent years: it was mentioned over  200 times in 2010 in US Equal Employment Opportunity Commission (“EEOC”) cases, and over 300 times in 2014. Although employers do not generally seem to be abusing people’s genetic information, people still fear an invasion of their privacy by employers or insurance companies.

GINA does seem to truly be a “civil rights law for the 21^st Century.”