February 25, 2020

February 24, 2020

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Sometimes You Just Cannot Make This Stuff Up: Employment Matters

Warning: The following is true. Some readers may find the content disturbing. Reader discretion is advised.

We have previously stated, although in somewhat tongue-in-cheek fashion, that labor and employment is the “TMZ” of the legal world. While that metaphoric comparison may be open for debate, many human resources professionals and employment law practitioners know that we are great company at cocktail parties because of the stories we can tell (while, of course maintaining proper confidentiality). A recent decision by the federal district court in Atlanta not only provides the kind of fodder for such stories, but may also become notable as one of the first court interpretations of the Genetic Information Non-Disclosure Act (GINA) and leave an indelible mark on future interpretations of that law.

We noted years ago that GINA was one the newest areas of federal anti-discrimination focus, but as perhaps one of the least known anti-discrimination laws and one of the newest, there has, at least so far, been little court interpretation and guidance regarding the law. GINA prohibits the use of genetic information in making employment decisions and precludes employers from “requesting, requiring or purchasing” genetic information except in very limited circumstances. The recent federal case provides one of the first demonstrations of how the law will play out in the real world.

The facts of the recent case involve some dirty conduct on the part of employees in a warehouse and an employer’s attempt to flush out the wrongdoers. Lest you question whether we are exaggerating, we offer the following rundown of the facts, taken directly from the text of the court’s decision:

[The employer] operates warehouses for the storage of products sold at a variety of grocery stores. So one could imagine [the employer’s] frustration when a mystery employee began habitually defecating in one of its warehouses. To solve the mystery of the devious defecator, [the employer] requested some of its employees, including [Employee 1] and [Employee 2] to submit to a cheek swab. The cheek cell samples were then sent to a lab where a technician compared the cheek cell DNA to DNA from the offending fecal matter. [Employee 1] and [Employee 2] were not a match. With the culprit apparently still on the loose, [Employee 1] and [Employee 2] filed suit under the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., which generally prohibits employers from requesting genetic information from its employees.

To identify the dastardly defecator, the company tasked its loss prevention manager with conducting an investigation. By matching employee assignments and the placement of the poop, the LP manager identified multiple suspects, who were each asked to submit to a test in which the inside of their cheeks (facial only) were wiped and their samples submitted for testing. Short tandem repeat (STR) analysis can be used to compare DNA from one sample (the cheek swabs) to another (the “sample”) for identification purposes.

Two employees whose cheek swab samples did not match the DNA found in the poop filed charges of discrimination with the EEOC. They contended that the company’s conduct violated GINA by illegally requiring the employees to provide their genetic information. In response, the employer argued that because STR analysis cannot determine an individual’s propensity for disease or disorder, it was not the type of test prohibited by GINA. The EEOC issued a Notice of Right to Sue, and the case plopped in front of a federal judge on cross motions for summary judgment.

The court rejected the employer’s argument that the tests did not constitute a request for genetic information within the meaning of GINA because the test performed can only be used for matching samples and not predicting one’s propensity for disease. Instead, the judge looked to the plain meaning of GINA, which among other things defines genetic test as “an analysis for human DNA, RNA, chromosomes, proteins or metabolites…” Clearly, the test mandated by the employer fell within this definition.

As all good stories do, this case should not only leave its mark in the memory of its readers, it also provides a valuable training moment. The lesson for employers with more than 15 employees is that GINA provides yet another legislative proscription which must be considered when hiring, monitoring, and investigating employee behavior. Genetic analysis is not the way to catch crappy employees, no matter how stinky the circumstances of employee misconduct may appear.

© 2020 Foley & Lardner LLP


About this Author

Mark J. Neuberger, Of Counsel, Miami Lawyer, Foley Lardner, Non profit Attorney
Of Counsel

Mark J. Neuberger is of counsel and a litigation lawyer with Foley & Lardner LLP. His practice involves the representation of management in all areas of employment law, including general labor and employment guidance to clients. He regularly represents clients in the health care, hospitality, manufacturing and not-for-profit industries. He is a member of the firm’s Labor & Employment and Private Equity & Venture Capital Practices as well as the Health Care Industry Team. Mr. Neuberger also serves on Foley’s national Pro Bono Legal Services Committee.