When the Sh*t hits the Ban

30 June 2015 by Rosalind English

Jack Lowe and Dennis Reynolds, Plaintiffs v Atlas Logistics Group Retail Services

The first prosecution under the 2008 US Genetic  Information Nondiscrimination Act (GINA) has won $2.25 million jury damages for the individuals involved .

I have posted about genetic discrimination here and here. In the US some of these problems have been foreseen and legislated against: GINA prohibits discrimination against healthy individuals for employment decisions or health insurance purposes on the basis of genetic information alone; it also prevents employers and insurance providers from demanding or using information from genetic tests.

The law does include limited exemptions, however. Forensic laboratories can ask workers for their DNA to check that employees’ genetic material does not contaminate the genetic samples that they analyse.

Background facts

Now GINA has been tested in somewhat inelegant circumstances.  A company in Georgia, Atlas Logistics Group Retail Services, attempted to discover who had been defecating in their grocery distribution warehouse. This was obviously not only an unpleasant nuisance, it also had economic ramifications for the company. The defecations occurred numerous times and necessitated the destruction of grocery products on at least one occasion. Atlas therefore sought to compare DNA from the faecal matter with cheek swab DNA samples taken from two of their employees.

The cheek cell samples were then sent to a lab where a technician compared the cheek cell DNA to DNA from the offending fecal matter. Lowe and Dennis were not a match. With the culprit apparently still on the loose, Lowe and Dennis filed suit under GINA.

Arguments before the court

In the District Court, they contended that because Atlas had illegally requested and required them to provide their genetic information and illegally disclosed their genetic information, it had violated GINA, which makes it “an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee.”

The defendant company countered that the plaintiffs’ case should be struck out because  the information the company requested concerning Lowe’s and Reynolds’s DNA analysis did not constitute “genetic information” as defined in GINA. According to the defendant’s interpretation of GINA, “genetic information” refers only to information related to an individual’s propensity for disease.

The legal question before the District Court was whether the information requested and obtained by Atlas was “genetic information” covered by GINA. For the reasons that follow, the Court concluded that it was.

If all the Court considers is the language of GINA, the undisputed evidence in the record establishes that the DNA analysis at issue here clearly falls within the definition of “genetic test.” The defendant had ignored the more general pronouncement of GINA’s purpose: to
“establish a national and uniform basic standard” of unacceptable use of genetic information in health insurance and employment, in order “to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research and new therapies

The case then went to full trial before a jury in the federal court. As the PHG Foundation points out, this was the first such case to go to trial, although there have been previous unsuccessful attempts to use the legislation.

Outcome of the litigation 

Lawyers representing argued that GINA did not apply in this instance, because the company used the two employees’ genetic samples in an attempt to identify the ‘devious defecator’ — not to learn about either man’s medical profile. The jury rejected the argument and awarded the employees $2.25 million.

The PHG report comments that

Whilst the damages awarded by the jury seem seriously disproportionate to the ‘injury’ suffered by the employees, the case is an important one as a demonstration that the law will be enforced in appropriate circumstances.

Last week’s edition of Nature announces this “devious defecator case” as a “landmark for US genetic privacy law”.  The article notes that

One of the first legal challenges under GINA was filed in 2010 by a Connecticut woman who argued that she had been fired because she had an increased risk of breast cancer. According to reports, Pamela Fink tested positive in 2010 for mutations in the BRCA2 gene that are associated with increased cancer risk. After undergoing preventive breast surgery and reconstruction, she was dismissed from her job and later filed a discrimination charge.

The case has since been settled.

As I mentioned in my previous post, the  United Kingdom has not attempted to build a legal framework equivalent to the blanket ban imposed by GINA has no equivalent legal framework in the UK, although genetic testing of individuals without their consent is illegal. Insurance companies have for the moment agreed a voluntary moratorium on the use of genetic test results for insurance purposes in most cases.
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Related posts:

• Can we keep our genomes quiet? Some suggestions from the US
• Can an individual claim ownership of life’s instructions?
• Can morality be explained by science?
• DNA, home testing and fuzzy human rights
• Should we outlaw genetic discrimination?
• What is genetic discrimination, and when and how can it be prevented?