Crime Scene Investigation – Don’t Try This at Work

By Gillian McKean Bidgood

Are you impressed by how conclusively the tests on CSI and similar shows solve their investigators’ cases? Apparently the Loss Prevention Manager for Atlas Logistics Group Retail Services, LLC was. When he was charged with the unenviable task of discovering which employee(s) were defecating in the company’s grocery warehouse, he decided to turn to DNA.

Atlas hired a lab to swab the cheeks of employees who were scheduled to work when the incidents occurred and compared the DNA of the employees to the DNA that was left behind by the offender(s). The lab did not analyze the DNA samples to identify any propensities for disease, but the testing did identify genotypes and mutations. Two of the employees tested then protested and filed Charges of Discrimination with the Equal Employment Opportunity Commission and filed what, by all accounts, is the first lawsuit under the Genetic Information Nondiscrimination Act (“GINA”) to go to a jury.

The employees who sued were not a DNA match with the samples in the warehouse, and they did not allege genetic discrimination. Rather, the case focused on GINA’s prohibition against employers requesting, requiring, or purchasing genetic information, including genetic tests, from and about employees. The statute defines genetic tests as “analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.”

The employees and Atlas filed cross-motions for summary judgment. Atlas argued that the DNA testing it performed was not prohibited by GINA because the testing did not analyze propensity for disease. However, the trial court rejected Atlas’s argument based on the broad wording of GINA. Because the testing analyzed DNA, the trial court found that Atlas had requested or required genetic testing and granted summary judgment for the employees.[2]

In June, the trial court held a jury trial on damages. On June 22, 2015, a jury awarded the employees a total of $2.23 million. A whopping $1.75 million of that verdict was punitive damages. The remainder, $475,000, was for emotional distress damages. Atlas may challenge this verdict as exceeding the caps on awards under GINA.

Even if Atlas succeeds in reducing the verdict, this case is a cautionary tale for employers. The summary judgment ruling indicates that courts will not take kindly to requesting genetic information as part of a workplace investigation. Further, because GINA prohibits purchasing genetic information, an employer acts at its peril if it pays for genetic testing or test results even if the employee volunteered the sample. Additionally, the jury’s verdict shows that juries expect employers to know and follow the law – and may not be very forgiving of violations.

Like any cautionary tale, this tale can only be effective if it is shared. Employers should use this case as an opportunity to remind management, human resources, and risk management employees about the limitations imposed by GINA. In order to avoid violating other laws while complying with GINA, employers should also remind employees of the federal, state, and local laws on audio and visual surveillance.