Devious Defecation

Devious Defecator.EmailJudge Amy Totenberg called this case, “The mystery of the devious defecator.” Judge Totenberg is a federal district court judge who ruled on the case filed against Atlas Logistics by two employees after they were required to submit to a cheek swab.

Atlas provides shipping and storage services for the grocery industry. In 2012, someone began defecating in a common area in the warehouse, a practice to which Atlas objected. Unable to identify the culprit, Atlas enlisted technology in its quest to confine bodily functions to the restroom. Thereafter, it performed cheek swabs on several suspected employees, including Jack Lowe and Dennis Reynolds. The cheek cell samples were then sent to a lab to be compared with the DNA from the fecal matter found on the floor.

Lowe and Reynolds were not matches; however, their coworkers ridiculed them as a result of the testing. Their feelings hurt, Lowe and Reynolds filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) under the Genetic Information Nondiscrimination Act (GINA), which prohibits employers from requesting genetic information from employees or applicants. EEOC dismissed the charges, stating there was no violation of the statute. Not satisfied with this result, the plaintiffs then filed a civil suit under GINA. The company unsuccessfully argued that GINA only prohibits requests for information relating to an individual’s propensity for disease. Atlas was not interested in that information, but was merely trying to track down the “poopetrators” of workplace misconduct. The Judge, however, disagreed and ruled that according to the plain language of GINA, a much broader range of testing was covered by the law. According to the judge, the testing done by Atlas did not fit into the narrow exceptions under the law. The jury then awarded the two employees $475,000 in compensatory damages and $1.75 million in punitive damages, an award that most likely will be reduced to the statutory limits of $600,000.

Although GINA is still a relatively new law, having been enacted in 2008, the number of GINA cases brought against employers is on the rise. GINA is a civil rights statute enforced by the EEOC and generally prohibits employers with 15 or more employees from discriminating against employees on the basis of their genetic information, requesting an employee’s genetic information, or retaliating against an employee who has opposed a practice that is unlawful under GINA. Luckily, GINA provides a “safe harbor” for employers when they receive genetic information in response to a request for health related information, such as a fitness for duty exam. However, in order to take advantage of this safe harbor, employers must warn the medical provider not to provide genetic information.