Discrimination Based on Genetic Information? There’s an Act for That

June 8, 2015

Seven years ago, Congress passed a law which prohibited employers from discriminating against people with genes that increase their risk for costly diseases. The Genetic Information Nondiscrimination Act (“GINA” or the “Act”) makes it illegal “for an employer to request, require, or purchase genetic information with respect to an employee.” 42 U.S.C. §2000ff et seq.

Since the passing of the Act, no case has ever gone to trial until now. The case of Lowe et al v. Atlanta Logistics Group Retail Services, LLC, 1:13-CV-2425 is set for trial June 17, 2015 in Atlanta’s Northern District of Georgia.

The facts in this case of first impression are bizarre and address whether an effort by an employer to detect wrongdoing with the help of DNA evidence violates GINA.

Defendant, Atlas Logistics Group Retail Services, LLP (“Atlas”) operated a warehouse outside of Atlanta which provides grocery items to metro-Atlanta stores. Defendant was having a peculiar problem: someone was leaving piles of feces around the facility. After launching an investigation, Defendant’s supervisors suspected employees Dennis Reynolds and Jack Lowe (“Plaintiffs”). Based on this suspicion, Defendant asked Plaintiffs if they would provide a DNA test so that it could compare the DNA of the suspects to that of the feces. Plaintiffs, fearing for their jobs, submitted to this request. After comparing the DNA tests, the DNA did not match and Plaintiffs were cleared. The two men then filed Charges of Discrimination with the EEOC and ultimately sued the Defendant for discrimination under GINA.

On a cross motion for summary judgment, the Court denied Defendant’s motion for summary judgment and granted Plaintiffs’ cross motion for summary judgment as to liability under the Act. The issue on summary judgment was whether DNA analysis qualified as a “genetic test” under the Act. 42 U.S.C. §2000ff(A)-(B).

Defendant argued that the interpretation of “genetic test” excluded analyses of DNA if they did not reveal an individual’s propensity for disease. The Court rejected this argument holding that the DNA analysis of Plaintiffs clearly falls under the definition of a “genetic test” since it included “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.” 42 U.S.C. §2000ff(7). The Court stated that “a genetic test is a genetic test” and held that Defendant’s request of Plaintiffs’ DNA and the comparison of that DNA to the fecal DNA found in the warehouse constituted a violation of GINA. The Court’s Order can be found here.

If your prospective employer or employer has asked you to provide any genetic information as a condition of hiring or continued employment please contact our firm immediately at 404-873-8048 or firm@pcwlawfirm.com.

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