INFORMATION PRIVACY LAW BLOG POST
Professor Ira Rubinstein
Esteban Rubio
February 28, 2017
The Secret Pooper Aftermath
There has not been a more significant case for genetic information privacy than Lowe v. Atlas Logistics Group Retail Services 102 F.Supp.3d 1360 (GA, 2015). Although it was decided in 2015, it has significant importance as the first case to go to trial and obtain a favorable decision after being rejected by the Equal Employment Opportunity Commission (EEOC)
Atlas Logistics involved a company that sought DNA tests of its employees to obtain information and identify of a “pooper” who routinely used the companies’ facilities to leave its feces. The company requested petitioners to submit to cheek swabs in 2012 to analyze them for genetic comparison with the stool samples. After the testing, Lowe and Reynolds sued the company under Genetic Information Nondiscrimination Act (GINA) for considering that the use of its genetic information was unlawful.
Atlas was arguing that GINA was not applicable because they were not seeking medical information of employers but rather trying to find the “mystery pooper”. However, the Court sided with petitioners by stating the clear language of GINA made it unlawful for employers to request, require, or purchase genetic information with respect to an employee and more so to do for dismissing people.
In today’s world in which genetic information is easily accessible and obtainable and where employers seek – and do obtain – information from every possible source, having a restraint on employees is more relevant than ever.
Atlas Logistics set an example both for companies and the EEOC. The EEOC saw its decision challenged and required to reinterpret its view about genetic information; companies looked at an example of high monetary cost – which in Atlas were of 2.25 million in damages.
The EEOC is still actively enforcing GINA because companies still try to obtain genetic information – but using deceiving mechanisms -. Such was the case in a recent 2016 settlement between BNV Home Care Agency and the EEOC, EEOC v. BNV Home Care Agency, Inc., Case No. 1:14-cv-05441-JBW-RML.
According to the EEOC, BNV engaged in the unlawful practice of collecting employees’ and applicants’ genetic information by asking them questions about their family medical history on an employee health assessment form. Such a request was considered illegal because you cannot obtain impermissible genetic information using health assessment forms and requesting family information.
“Forcing employees and applicants to provide genetic information in order to maintain or obtain their jobs is clearly against federal law, and EEOC will continue to combat this form of discrimination,” EEOC Acting New York District Director Judy Keenan said in a statement regarding this settlement.
For more information:
https://www.eeoc.gov/eeoc/newsroom/release/11-1-16a.cfm