Sunday, July 5, 2015

Genetic Information Is Where You Find It--The Expansive GINA

Here's an worth-reading case out of the Eleventh Circuit that deals with the little-known Genetic Information Nondiscrimination Act, better known as "GINA". I say "little-known" not because the statue is obscure - in fact it's received plenty of publicity- but because employers as a whole seem manifestly unaware of the significant implications of the law. The case provides a useful standard for employers, and a cautionary tale about how even relatively straightforward employer enquiries can trigger statutory liability.

Plus the facts of the case are pretty entertaining. The employer shipped and stored food products for grocery stores in the area. Someone or someones unknown with a terrible sense of humor, or a bad sense of bathroom etiquette, began defecating in the company's warehouse. This is not exactly a practice that you want to encourage, particularly when you are shipping foodstuffs. The company launched an immediate investigation

Part of that investigation involved taking DNA swabs from employees in the affected warehouse and comparing them to, well, samples. The two plaintiffs were subject to this procedure, and were found not to be the culprits. However, they filed charges with the EEOC alleging that the employer violated GINA because it required them to provide genetic information and then illegally disclosed that genetic information to others.

The case eventually reached federal court, where both sides moved for summary judgment. The plaintiffs argued that the employer's use of DNA testing in the investigation was a plain violation of the language of GINA, which makes it an unlawful employment practice for "an employer to request, require, or purchase genetic information with respect to an employee." The employer argued that the term "genetic information" in the statute referred only to information relating to someone's propensity for disease or illness.  This, of course, was precisely what GINA was aimed at, but the court, apparently using proper methods of statutory construction, and not the Supreme Court's method in the King v. Burwell decision, went with the plain language of the statute. The court found that the request for genetic information from the employees was a GINA violation and entered judgement for the employees.

It's worth looking at the opinion for a nice view of how statutes are supposed to be reviewed by courts, but also as a general warning to employers that any type of genetic inquiry, forensic or otherwise, is suspect under this law. Moreover, off-hand comments about family traits are prohibited, as well. See my earlier blog post about how the NFL apparently violates this rule.

Most companies remain blissfully unaware of the requirements of the statute. This opinion is a nice wake up call for all of us.

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