Dive Brief:
- A recent federal district court decision may become notable as one of the first court interpretations of the Genetic Information Non-Disclosure Act (GINA), and leave an indelible mark on future interpretations of that law, according to the National Law Review.
- GINA prohibits the use of genetic information in making employment decisions and precludes employers from “requesting, requiring or purchasing” genetic information except in very limited circumstances.
- GINA is a relatively new area of federal anti-discrimination focus and at least so far, there has been little court interpretation and guidance regarding the law.
Dive Insight:
This EEOC claim may be based on GINA, but what led to to triggering the lawsuit is, for lack of a better term, gross. It also goes directly to how difficult it can be for employers to uncover and punish employee wrongdoing without crossing a legal line to get there.
The story: an anonymous warehouse employee repeatedly was defecating in the workplace, and the employer's loss prevention manager investigated. He used matching employee assignments and the placement of human waste to ID multiple suspects, who were each asked to submit to a test in which the inside of their face cheeks were wiped and samples submitted for testing.
When neither suspect's genetic code was a match, the two employees brought a discrimination lawsuit with the EEOC, specifically GINA. The employer argued in court that the cheek swabs technically did not test for disease or a disorder (which seemed to be the intent of the law), so GINA was not applicable. The EEOC disagreed.
A court next rejected the employer’s argument, according to the National Law Journal analysis. When the judge looked to the meaning of GINA, which among other things defines genetic test as “an analysis for human DNA, RNA, chromosomes, proteins or metabolites…” the test mandated by the employer fell within this definition.
It's an interesting start for GINA in the employment law world. But the case does show that HR and employers really need to check every possible angle before conducting invasive tests in the workplace, no matter how disgusting the transgression.
