POOP IS GINA PROTECTED
(GUEST AUTHOR)- Is it lawful for an employer to collect genetic information from an employee, even if for non-discriminatory reasons? According to a recent a decision out of the Northern District of Georgia, the answer is no. Lowe v. Atlas Logistic Groups Retail Services, LLC (May 5, 2015). Lowe involves a truly bizarre fact pattern – an unknown person was defecating in a factory and the company could not figure out the culprit. After narrowing the suspect to several employees, the company requested DNA swabs that could compare to the … evidence … left on site. Two innocent employees who complied with the request filed suit under the Genetic Information Non-Discrimination Act (GINA). Despite the fact that the company requested the DNA swabs for non-discriminatory reasons, and did not use the swabs to collect information on the employees (only to compare to the evidence), the company was found to have violated the statute and was ordered to pay damages.
As this case makes clear, GINA is a strong statute prohibiting (with limited exceptions) not just the collection of genetic information such as DNA, but also the collection of family history of diseases or disorders that lead to such information. As indicated by this court decision, the collection of genetic information need not be for a discriminatory purpose to violate the statute. Indeed, under the statute employers cannot even request such information. GINA was enacted in 2008, and thus is a relatively new statute. Obviously, the courts will continue to interpret and apply the statute but, in the meantime, union officials should be aware of these important new employee protections as should managers and LR Specialists.
(Our thanks to this attorney from the DC area, a former member of NTEU General Counsel and Negotiations shops, but now in private practice. The Headline is ours; the scholarship is his.)