Not All Poop is Created Equally

A recent case from the United States District Court for the Northern District of Georgia is a good reminder for employers about a lesser known law known as The Genetic Information Nondiscrimination Act of 2008 (“GINA”). The law prevents employers from collecting DNA from employees. The law states that, “It shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee.” 42 U.S.C. 2000ff-1(b).

In the case, a company was finding piles of feces in the aisles of its grocery store and on canned goods. In an effort to find out who the pooping pillager was, the company asked employees for DNA samples by having them submit to a cheek swab. Two employees who submitted to the cheek swab test sued their employer, and after a jury trial, was awarded an astonishing $2.2 million. The jury broke down the award as follows: $475,000 in compensatory damages for mental pain and suffering, and $1.75 million in punitive damages. Although the employer was simply trying to figure out who was depositing excrement in its store, its actions clearly violated GINA.

Employers should also be aware that in such a situation there is more than one way to skin a cat. Instead of taking DNA samples of its employees after the fact, the employer most likely could have solved its crappy situation by installing surveillance cameras in the store.

– Weber, Crabb & Wein, P.A.