Test for 'devious defecator' was unlawful, judge rules

Can an employer require an employee submit to genetic testing to find the "devious defecator" in their warehouse? Not without running afoul of the Genetic Information Nondiscrimination Act ("GINA"), opines Judge Amy Totenberg, in the case of Jack Lowe and Dennis Reynolds v. Atlas Logistics Group Retail Services (Atlanta), LLC. In deciding a cross-motion for summary judgment in favor of the plaintiffs, Totenberg wrote a groundbreaking opinion in a case of first impression about the meaning of a specific provision of GINA.

On Friday, Gina Kolata reported in the New York Times about the case. It is the first case that has gone to trial regarding the specific provision in GINA that prohibits the acquisition of genetic information by employers.

The facts of the case are particularly devious. Atlas operates warehouses for products sold at grocery stores, and a mystery employee (the "devious defecator" so cleverly named by Totenberg), began "habitually defecating in one of its warehouses." To solve the mystery, the company requested some of its employees submit to cheek swabbing to compare their cheek cell DNA to DNA from the "offending fecal matter" left in the warehouse.

Two of the employees (both later exonerated by their DNA tests) filed suit under the Genetic Information Nondiscrimination Act ("GINA"). Represented by attorneys Amanda Farahany, Benjamin Barrett and Ben Stark, from Barrett & Farahany, LLP in Atlanta, they argued that the tests violated GINA. In particular, plaintiffs argued Atlas violated 42 U.S.C. § 2000ff-1(b), which makes it "an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee."

Atlas unpersuasively countered that the cheek tests are not genetic tests because the comparison (a Short Tandem Repeat Analysis "STR analysis," which is used to compare DNA from one sample to another for identification purposes) has a forensic purpose that provides no information about the employees' genetic predispositions to disease. [Totenberg provides a detailed explanation of the tests in her opinion].

To resolve the dispute, Totenberg looked at the plain language of GINA. She found that the "unambiguous language of GINA covers Atlas's request for Lowe's and Reynold's genetic information and thus compels judgment in favor of Lowe and Reynolds." Moreover, "[t]his case is not one of the rare instances where overwhelming extrinsic evidence demonstrates legislative intent contrary to the text's plain meaning."

Atlas claimed that this "straightforward but broad interpretation of GINA is erroneous," and urged the court to interpret genetic tests in a much narrower way. The judge artfully decimated their claim. Atlas's interpretation of genetic tests—limited to tests for predispositions of disease—renders other language in GINA superfluous. And Atlas's "cherry-pick[ing]" of statements made during the legislative process "provides little insight into the overall congressional purpose of the Act." Totenberg's careful analysis led to her conclusion that Atlas's legislative history argument was not "remotely sufficient to justify departing from the plain meaning of the statute's text."

The judge clearly understood the task before her—to not only resolve the dispute between these employees and Atlas but to lay the groundwork for other courts on how to interpret this provision of GINA. She carefully reviewed the text, legislative history, and the science to provide a truly seminal and carefully crafted opinion.

In so doing, she persuasively demonstrates how to interpret 42 U.S.C. § 2000ff-1(b) of GINA, regarding the acquisition of genetic information by employers. The language of this provision is quite broad—perhaps even broader than legislators anticipated. But it's nevertheless unambiguous in its breadth.

This case now puts employers on notice: Whether to detect a devious defecator, or detrimental genetic defects in their employees, an employer cannot require an employee to submit to genetic testing.

But now the real challenge begins—having won liability, plaintiffs now have to establish damages. What is the harm from having an employer acquire genetic information, if it isn't used to make a discriminatory hiring decision? In our deliberations on the Presidential Commission for the Study of Bioethical Issues on "Privacy and Progress in Whole Genome Sequencing," (http://bioethics.gov/sites/default/files/PrivacyProgress508_1.pdf) we heard experts argue that unauthorized access to one's genetic information is itself a dignitary violation. Because GINA does not specify how to calculate damages in 2000ff-1(b), plaintiffs must now quantify the dignitary and other harms that arise from the acquisition of genetic information. Scholars have had a difficult time articulating those harms. Quantifying damages in this case will likely prove even more telling about the effect of GINA than establishing liability itself.

[*Note 6/1/2015: I urged Amanda Farahany (my sister) and Barrett & Farahany, LLP to take this case, as the meaning of 2000ff-1(b) had not previously been litigated. I have also spoken publicly about this case, including a recent Congressional briefing before the opinion was issued. Given the NYT coverage of the case, I am providing this detailed look at this seminal opinion. Also note the additional sister power here: Judge Amy Totenberg is Nina Totenberg's sister!].