The Legality of DNA Testing in the Workplace

The Human Genome Project was a collaborative venture to map the entirety of human DNA. It finished in 2003, and in the 17 years since, we’ve luckily avoided falling into a society that uses genetic information to discriminate against its citizens. But the potential is there. To help prevent genetic discrimination, Congress passed the Genetic Information Nondiscrimination Act of 2008 (GINA). Let’s take a look at this law and how it protects employees from discrimination, including employer requests for DNA testing. The Genetic Information Nondiscrimination Act of 2008 GINA has two parts. Title I concerns genetic discrimination within the health insurance context. Title I of GINA prohibits health insurance companies from denying coverage or increasing someone’s insurance costs based on genetic information. Title II of GINA deals with genetic discrimination of employees in the workplace (and is the section we’ll focus on in this article). Under GINA, an employer may not use an individual’s genetic information to make employment decisions concerning:

Hiring
Firing
Promotions
Fringe benefits (including health insurance)
Training
Harassment
Any other aspect of employment

The term, “genetic information” includes information from an individual’s genetic tests, the information from a genetic test from the individual’s family member and information concerning an individual’s family medical history. GINA also prevents an employer from asking, requiring or purchasing genetic information with respect to a current or future employee (or an employee’s family member). In other words, subject to a few exceptions, if your employer is covered by GINA, it may not ask you to take a DNA test. The exceptions include:

An employer accidentally obtaining an employee’s genetic information. This could happen if the benefits coordinator from human resources overhears two employees talking about the results from their 23andMe personal genetics tests.
The employer asks for genetic information as a part of genetic or health services offered by the employer. The genetic information must be for a service that is reasonably designed to promote the health of an individual. An employer may not ask for genetic information simply to decide how much to charge an employee for health insurance benefits.
The genetic information is necessary to certify leave pursuant to the Family and Medical Leave Act of 1993.
The employer obtains the information through publicly available documents.
Subject to certain conditions, an employer needs the information as a part of a genetic monitoring program that checks the biological effects of toxic substances in the workplace.
The employer is in the business of conducting DNA testing for identifying human remains or for law enforcement and the genetic information from employees is needed to check for DNA sample contamination.

Many, but not all, employers are bound by GINA’s mandates. In addition to private employers with 15 or more employees, covered employers include local, state and federal governments, employment agencies and labor organizations. GINA also has confidentiality requirements and an anti-retaliation provision. Employers that may lawfully request or possess an employee’s genetic information must keep that information confidential and separate from the employee’s general personnel file. Finally, employers may not engage in any form of retaliation against a prospective or current employee who takes any step to oppose genetic discrimination as prohibited by GINA. This means if an employee files a discrimination complaint, cooperates with a discrimination investigation or participates in a GINA lawsuit, the employer may not fire, bully, demote or reduce the pay of that employee. Enforcing GINA Enforcement of GINA violations generally follows the same process as complaints under Title VII of the Civil Rights Act of 1964 (Title VII). This means the U.S. Equal Employment Opportunity Commission (EEOC) enforces the Title II provisions of GINA and employees have 180 days to file a charge (complaint) with the EEOC. This deadline may be longer in certain situations, although it’s far shorter for federal employees, who only have 45 days to contact an EEO Counselor if they feel their GINA rights have been violated. Along with the reporting process, the potential damages an employee may recover for GINA violations parallels what’s available under Title VII. In cases where the employee can show the employer intentionally discriminated against them because of their genetic information, an employee may be able to recover the following types of damages or legal relief:

Reinstatement
Back pay
Front pay
Compensatory damages (includes pain and suffering and emotional distress)
Punitive damages
Attorney’s fees and court costs

There are caps on some of these damages. For example, the maximum a plaintiff can recover for both punitive and compensatory damages is $300,000. This limit applies to employers with more than 500 employees. For smaller employers, the following limits apply:

15 to 100 employees: $50,000
101 to 200 employees: $100,000
201 to 500 employees: $200,000

To see how these damage limits apply, as well as look at an example of employees exercising their rights under GINA, let’s take a look at the very famous cases involving the “devious defecator.” Lowe v. Atlas Logistics Group Retail Services Atlas Logistics Group Retail Services (Atlas) was in the business of operating warehouses and transport trucks for the grocery industry. Atlas noticed that someone (or a group of people) was going around and defecating on grocery store products in one of Atlas’ warehouses. After doing some investigating, Atlas created a list of possible suspects, which included Jack Lowe (Lowe) and Dennis Reynolds (Reynolds). Atlas asked both of them to submit to a DNA test so Atlas could confirm if their DNA matched the feces samples left in the warehouse. Lowe and Reynolds agreed to be tested, but only out of fear of losing their jobs. Despite being exonerated by the DNA tests, they became subject to embarrassing jokes in the workplace. Both Lowe and Reynolds sued Atlas for violating their rights under GINA. Before a trial could be held, both sides filed motions for summary judgment. The judge decided these motions in the plaintiffs’ favor. The judge concluded that Atlas had violated GINA when asking the employees to take the DNA test, but sent the case to a jury to decide what damages the plaintiffs would receive. The jury came back with a hefty award - $250,000 for Lowe, $225,000 for Reynolds and $1.75 million in punitive damages for both Lowe and Reynolds. But given the damage award caps, both Lowe and Reynolds’ awards were reduced to $300,000 each. However, they were able to recover attorney’s fees and court costs amounting to more than $500,000. Atlas filed an appeal, but voluntarily dismissed it soon after agreeing to pay the more than $1 million judgment to both plaintiffs. The Bottom Line GINA is a fairly new law, but it seems to have enough teeth to provide practical protections for employees. Some states, such as Virginia, also have their own laws outlawing genetic discrimination in the employment setting.

The Legality of DNA Testing in the Workplace

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