Federal Court Establishes Broad Scope of Genetic Privacy Under Genetic Information Nondiscrimination Act (GINA)

In a first of its kind case involving the scope of genetic privacy afforded by federal law, a federal court has ruled that an employer violated the Genetic Information Nondiscrimination Act (GINA) when it requested DNA samples from two employees for an internal investigation. In Lowe v. Atlas Logistics Group Retail Services (N.D. Ga) a grocery distributor in Atlanta, Georgia (Atlas) was confronted with several instances where it appeared that an employee had defecated on a grocery warehouse floor. In order to determine the culprit, Atlas requested DNA samples from two employees suspected of committing these acts. The employees provided saliva for the DNA testing, but were excluded as suspects. However, the employees went on to sue the company for violating GINA, the federal law which prohibits employers from using genetic information they may acquire to discriminate in hiring, promotion or firing decisions. Employers are also barred from requesting genetic information of employees except in very limited circumstances. Until this case, there was almost no contemplation of scenarios where an employer might request genetic information for a forensic purpose in the context of actual employment (most allegations of GINA violations concern employer access to medical genetic information). However, the plaintiffs alleged that the Atlas request, albeit for non-medical purpose, violated a general GINA prohibition on employer access to genetic information. Atlas contended that the requested genetic information was not covered by GINA, and that the statute was intended to apply only to the gathering of disease-related medical information. The federal judge disagreed and sided with the plaintiffs, finding that Atlas had indeed violated GINA:

If all the Court considers is the language of GINA, the undisputed evidence in the record establishes that the DNA analysis at issue here clearly falls within the definition of “genetic test.”

Now, a federal jury has awarded $500,000 in compensatory damages and $1.75 million in punitive damages to the two plaintiffs. This case is likely to remain somewhat idiosyncratic in its facts, but it signals a broad interpretation for the protection afforded to employees by GINA, which should insulate them from any attempt by employers to use genetic information for general retainment purposes, even when the DNA information is non-medical in nature. Of course, the plaintiffs alleged that the acquisition of their genetic information for arguably limited purposes still allowed an employer the possibility of testing that DNA sample for other medically-related information, or to keep the sample for such purposes later; one could imagine scenarios where an employer might try to obscure the purpose for testing by hiding behind a forensic pretext. This case makes that less likely. Thus, the case is notable as the first GINA case in federal court to interpret the scope of subject matter encompassed by the statute; its conclusion that GINA is to be read broadly sets a genetic privacy baseline. To date, GINA has been largely been invoked not in private litigation, but in complaints submitted to the Equal Employment Opportunity Commission (EEOC) (see here).