In what appears to be the first jury verdict under the Genetic Information Nondiscrimination Act of 2008 (“GINA”), an Atlanta, Georgia area employer has been found liable for compensatory and punitive damages to two of its employees in a case whose facts read like a bad movie script.

The employer operates a warehouse that distributes food to grocery stores.  In 2012, it discovered that someone had left feces on its warehouse floor and (sickeningly) on top of canned goods.  According to the plaintiffs’ complaint, the employer conducted a “months-long” investigation into the identity of the culprit before management called each plaintiff into a manager’s office and requested that they provided a saliva sample for DNA comparison purposes.  The plaintiffs gave the samples, but they alleged that they were never informed of the rights and protections afforded by GINA.  They sought compensatory damages for emotional pain and suffering as well as punitive damages.

GINA prohibits employers from “request[ing], requir[ing], or purchas[ing] genetic information with respect to an employee or a family member of the employee” except in limited circumstances, such as for an employer-offered health and wellness program or for genetic monitoring of the biological effects of toxic substances in the workplace.  GINA also outlaws adverse employment actions based upon an employee’s genetic information.  According to Congress, “[b]ecause some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of that genetic information.”  GINA is the government’s solution to that problem.

The plaintiffs may have been “relieved” when their DNA tests proved, as they maintained all along, that they were not in fact the “devious defecators” – a term coined by the federal judge who oversaw the trial of the case.  Now, however, they must be overjoyed after the jury returned a verdict for almost $500,000 in compensatory damages and a whopping $1.75 million in punitive damages to be shared by both employees.  Although the jury’s damage award may be found to exceed statutory punitive damages caps and ultimately reduced, the verdict sends a clear message to employers to never collect, and indeed to not even ask for, what might be considered genetic information without first consulting with counsel.

And no, the jury did not determine who soiled the warehouse floor.