Beginning in 2012, an unknown number of employees of Atlas Logistics began defecating in Atlas’ Warehouse. The defecations occurred numerous times and necessitated the destruction of grocery products on at least one occasion. Atlas subjected two employees to DNA testing to determine if they were the culprits. Neither was the mystery pooper.
On May 5, 2015, a federal court in Georgia held that Atlas’ testing of the two employee suspects violated the Genetic Information Nondiscrimination Act (“GINA”). On June 22, 2015, a federal jury awarded the two employees $2.2 million. GINA was enacted May 21, 2008. GINA prohibits a broad range of invasive actions that reveal genetic information or one’s pre-disposition to health conditions such as: internet searches regarding health matters, asking health-related questions and inadvertent receipt of health information. In light of the broad spectrum of prohibitions, employers should review their policies, practices, and management training to ensure compliance with GINA.
While this case, Lowe v. Atlas Logistics Group Retail Servs. Atlanta, presents an extreme set of facts it reminds employers to generally avoid DNA testing or undertaking efforts that may reveal information protected by GINA. Other traditional investigatory techniques were available to Atlas, such as fact based interviews and video surveillance of common areas.
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