Atlas Logistics Group Retail Services (Atlanta), LLC (“Atlas”) operates warehouses for the storage of products sold at a variety of grocery stores. So one could imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses.1 To solve the mystery of the devious defecator, Atlas requested some of its employees, including Jack Lowe and Dennis Reynolds, 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. Lowe and Dennis were not a match. With the culprit apparently still on the loose, Lowe and Dennis 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.Well, yesterday, a jury awarded the plaintiffs $2.25 million in Lowe & Reynolds v. Atlas Logistics Group Retail Services. Volokh Conspiracy has a great post on it, with some excerpts from closing arguments.
I can understand the employer's frustration. Something had to be done about "the devious defecator." But DNA testing is a blatant violation of GINA, so I'm not sure what the employer was thinking. According to the above-linked order, the employer claimed that the DNA analysis was not covered by GINA because it did not reveal the employees' propensity for disease.
Forgive me for being so blunt... but this sounds like a pretty stupid argument. GINA prohibits "genetic testing" and specifically defines "genetic testing" to include "analysis of human DNA." 42 U.S.C. § 2000ff(7). So their argument was that their analysis of DNA was not covered by a statute that prohibits, literally, "analysis of DNA"? Huh?
GINA is still pretty new, so we're trying to figure out how to value these claims. How much should employers compensate an employee for unlawfully analyzing his DNA? Apparently, the jury in this case valued it at $2.25 million.