Barrett & Farahany is pleased to announce a landmark decision protecting individuals and their rights.
GINA – passed by Congress in 2008 with only a single dissenting vote and signed into law by President George W. Bush – was passed to encourage people to participate in genetic testing. Congress recognized the astounding medical advances made possible by genetic testing, from early detection and prevention of illness to development of more effective therapies. (Consider, for instance, the case of actress Angelina Jolie, who found via genetic testing that she had a genetic predisposition to breast cancer and took action to prevent it.) However, Congress heard testimony that fear of employment discrimination based on genetic information deterred people from receiving such tests and, thus, jeopardized healthcare for all of us. It also heard testimony that Americans do not trust their employers with this information. Thus, Congress passed GINA, prohibiting genetic discrimination and prohibiting employers from acquiring their employees’ genetic information, in order to allay such fears and encourage genetic testing. If Atlas were permitted to create an exception to GINA by claiming it was not seeking health information, it would permit unscrupulous employers to gather damaging genetic information under the guise an innocent investigation. All the old fears of employer abuse of such information would return, people would refuse to get genetic testing, and advances in healthcare would be threatened. Luckily, the Court’s ruling firmly kept GINA’s protections in place.
Background: Atlas Logistics Group Retails Services (Atlanta), LLC (“Atlas”) operates warehouses for the storage of products sold at a variety of grocery stores. In 2012, an employee repeatedly defecated at various locations in the warehouse. In an attempt to find the culprit, Atlas officials separately took employee suspected of the crime – including Plaintiffs Jack Lowe and Dennis Reynolds – into a room and requested they submit DNA samples. (Lowe and Reynolds say Atlas coerced them into submitting the samples, which Atlas denies.) Atlas sent the DNA samples to a laboratory and requested the lab compare them to DNA found in the feces. The lab reported back that Lowe and Reynolds’ DNA did not match that found in the feces. Lowe and Reynolds filed suit against Atlas under the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., which prohibits employees from requesting genetic information with respect to their employees. Lowe and Reynolds moved for summary judgment, asking that the Court hold as a matter of law that Atlas had violated GINA. Atlas also moved for summary judgment, asking that the Court dismiss Lowe and Reynolds’s case and argued it did not violate GINA because the information it requested did not reveal whether Lowe and Reynolds had any genetic predisposition to inheritable diseases. The Court disagreed with Atlas, and found that Atlas was liable and entered judgment against it, and scheduled an immediate trial to determine the amount of damages Atlas owed Lowes and Reynolds.
Court Order: GINA makes it illegal “for an employer to request, require, or purchase genetic information with respect to an employee.” 42 U.S.C. § 2000ff-1(b). The issue was whether the information Atlas requested with respect to Lowe and Reynolds constituted “genetic information” under GINA. Atlas argued that it did not, since the information it requested did not reveal its employees’ propensity for disease. It was used, Atlas claimed, only for identification purposes. In an order on May 5, 2015, Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia rejected Atlas’s argument. Judge Totenberg held that the unambiguous language of GINA did not limit its definition of “genetic information” to information pertaining to predisposition to disease. The Court noted that Congress considered such a limited definition and did not adopt it. The Court also noted that Congress created an exception to GINA for human remains identification labs that use employee DNA to detect sample contamination, an exception that would be unnecessary if “non-health” information was already excluded from GINA’s protection. Finally, the Court rejected Atlas’s argument that snippets from regulations by the Equal Employment Opportunity Commission created a limitation to GINA’s protection that Congress did not intend.