The Genetic Information Nondiscrimination Act (GINA) of 2008, 42 U.S.C. § 2000ff et seq., protects employees from privacy violations and discrimination in employment based on information obtained through DNA tests and other procedures. It also prohibits employers from requiring employees to submit DNA samples, with narrowly defined exceptions. Some states have similar laws, such as New Jersey’s Genetic Privacy Act of 1996, N.J.S.A. § 10:5-43 et seq., which amended the New Jersey Law Against Discrimination to prohibit employment discrimination based on “genetic information,” N.J.S.A. § 10:5-12(a). Few court decisions have considered the scope of these laws’ protections, however. A recent court decision and jury verdict, however, in Lowe, et al v. Atlas Logistics Group Retail Svcs. (Atlanta), LLC, No. 1:13-v-02425, complaint (N.D. Ga., Jul. 22, 2013), suggests that these laws could provide an very effective defense against discrimination and employer intrusions into employee privacy.
Congress enacted GINA in 2008, so the statute has not amassed much of a track record in the court system. The Equal Employment Opportunity Commission (EEOC) has brought suit under GINA in several cases around the country for a wide range of practices:
– In EEOC v. Fabricut, Inc., the EEOC alleged that an employer violated GINA by allegedly refusing to hire a job applicant it thought had carpal tunnel syndrome, and by asking for her medical history. The employer settled the suit for $50,000.
– A class discrimination suit against a New York nursing home, EEOC v. Founders Pavilion, Inc., claimed that the employer unlawfully requested genetic information from job applicants. The defendant settled for $370,000. A lawsuit against another New York nursing home with similar allegations, EEOC v. BNV Home Care Agency, is still pending.
– A lawsuit against several seed and fertilizer companies for alleged medical and genetic information inquiries during the hiring process, EEOC v. All Star Seed, Inc., et al., resulted in a $187,500 settlement.
The facts of the Lowe case are, to be blunt, gross. The plaintiffs’ employer, a grocery warehousing company, discovered that someone had been defecating on the warehouse floor. The judge presiding over the case described it as the “mystery of the devious defecator.” The company required both plaintiffs to submit saliva samples, which would then be compared to a sample of the material left in the warehouse. Although the DNA samples cleared both plaintiffs of any wrongdoing, and the plaintiffs faced no other adverse action from the employer, they believed the employer had violated their rights under GINA.
The plaintiffs’ lawsuit stated causes of action for unlawful collection and unlawful disclosure of genetic information under GINA. 42 U.S.C. §§ 2000ff-1(b), 2000ff-5(b). In May 2015, the district court granted summary judgment for the plaintiffs on liability, finding that the defendant violated the plaintiffs’ GINA rights. A jury awarded the plaintiffs $250,000 and $225,000 in compensatory damages after a trial in June, along with $1.75 million in punitive damages. The defendant has moved to reduce damages, claiming they are capped at $300,000 per plaintiff. 42 U.S.C. § 1981a(b)(3).
If you need to speak to an employment discrimination lawyer in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at 646-867-7997.
More Blog Posts:
EEOC Examines Risk of Discrimination in Wellness Programs Offered by Employers Under the Affordable Care Act, The New Jersey Employment Law Firm Blog, May 27, 2015
What Duty Does an Employer Have to Protect Employees from Infectious Diseases? The New Jersey Employment Law Firm Blog, October 24, 2014
New York City Court Dismisses Lawsuit Alleging Height Discrimination, Holding that Adult Height is Not a Protected Genetic Characteristic, The New Jersey Employment Law Firm Blog, March 20, 2013
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