The 'devious defecator' case shows why employers should never ask for DNA
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Version 0 of 1. If someone poops on the floor at work, can your boss test your DNA to see if you’re the culprit? That is what Federal District Judge Amy Totenberg was asked to decide in the case of the “devious defecator.” In 2012, the longhaul transportation and storage company Atlas Logistics discovered that someone had been defecating in its warehouse and suspected it was a disgruntled employee. The company wanted to analyze the “offending fecal matter” – and their employees’ DNA via cheek swabs – to identify the culprit. Two employees, Jack Lowe and Dennis Reynolds, sued. They claimed that Atlas violated the little-known Genetic Information Nondiscrimination Act (Gina) by taking their genetic information. (Neither Lowe nor Reynolds was a match. The true devious defecator remains at large.) While the facts are certainly bizarre, this case raises important and unique issues about how workplace privacy can relate to discrimination. Most employment discrimination statutes outlaw adverse employment actions – they bar employers from hiring, firing or otherwise disadvantaging workers on the basis of one’s race, sex or religion. Gina forbids merely asking for genetic information. Gina prohibits discrimination on the basis of genetic information in health insurance and in employment. And it is an odd anti-discrimination law to be sure. Neither genetic discrimination, nor workplace genetic testing, is currently a widespread phenomenon. When Congress passed the statute in 2008 it was not reacting to a longstanding history of discrimination. Instead, it was attempting to assuage concerns about the misuse of genetic information, hoping it would make people more comfortable participating in genetic research and taking advantage of genetic medicine, often cited as the next frontier in healthcare. But according to the law, both as written and as interpreted in the case, an employer runs afoul of Gina even if it never receives – let alone acts upon – genetic information. From this perspective, Lowe v Atlas Logistics is a landmark case: an anti-discrimination case in which there was no traditional discrimination. Neither Lowe nor Reynolds lost their jobs nor suffered any other adverse employment action. To the contrary, the DNA that Atlas took from the employees exonerated them of any wrongdoing. Atlas argued that the information it obtained from the cheek swabs was not “genetic information” under the statute because it did not reveal anything about the plaintiffs’ propensities for disease. Judge Totenberg disagreed. Turning to the plain language of Gina, which defines genetic information to include an “individual’s genetic tests” without any qualification, she ruled in favor of the plaintiffs. The case will go to trial on the issue of damages with jury selection starting on Monday. Yet lawsuits require plaintiffs to have suffered some kind of cognizable harm before they can have their day in court. So what is the harm at stake in this case? One answer could simply be the traditional dignitary harms associated with invasions of privacy. Lowe and Reynolds stated that they feared for their jobs and felt humiliated by the genetic testing. Another, and in my opinion, more interesting possibility is that when Atlas unlawfully asked its employees for their DNA, it harmed them by making them vulnerable to subsequent discrimination. By obtaining Lowe’s and Reynolds’ DNA, Atlas gained potential access to an immeasurable amount of information about the men. Genetic information can reveal all kinds of things about an individual: their likelihood of disease, their ancestral background, their familial relationships and perhaps even their susceptibility to injury. Once an employer acquires an employee’s genetic information, it could theoretically mine that data to learn additional information, including information about the individual that the person himself may not know. Gina’s privacy protection supports the law’s anti-discrimination goals by prohibiting employers from obtaining the very information they would use to discriminate. Put simply, privacy stops discrimination before it starts. Protecting genetic privacy is essential to capitalizing on the genetic and genomic revolutions in research and medicine. Unlike many other potential grounds for discrimination, genetic testing is opt-in: people must first take genetic tests before they can be disadvantaged on the basis of the results of those tests. Individuals will avoid genetic testing if they fear potential discrimination – that’s why safeguarding genetic privacy is so crucial. |