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'Devious defecator' test violated US genetic discrimination law

8 June 2015
Appeared in BioNews 805

A company that conducted genetic tests on its employees for a disciplinary investigation violated US genetic anti-discrimination law, an Atlanta judge has ruled.

Supervisors of a grocery goods warehouse were concerned when a mysterious employee began 'habitually defecating' in the warehouse. The warehouse launched an investigation and narrowed down the suspects to two employees based on their working schedules. Both the employees, Dennis Reynolds and Jack Lowe, were then asked to submit cheek swabs for genetic testing. Fearing that they might lose their job, both men complied with the request.

The result of the genetic tests showed that they were innocent - their DNA did not match that in the faeces. However, they decided to sue their employer after word spread and both men became the objects of humiliating jokes.

Reynolds and Lowe argued that the company had violated the Genetic Information Nondiscrimination Act (GINA), which makes it 'an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee'.

Atlas Logistics Group Retail Services, the company running the warehouse, objected, saying that the purpose behind GINA is to deter genetic discrimination in an employment context. It argued that since the test used in this case, the Short Tandem Repeat (STR) Analysis, was not capable of showing the employee's genetic predispositions to diseases, its actions fell short of violating GINA's intent.

Federal district judge Amy Totenberg disagreed, ruling in favour of the employees. Following a detailed analysis of the relevant provisions in GINA, she noted the plain and unambiguous language used meant that it covers all kinds of situations where a genetic test is used, no matter what the employer's intent was in obtaining such genetic samples.

Judge Totenberg also rejected Atlas's arguments that STR analysis was not 'genetic test' as defined under GINA, and found Atlas's remaining argument to be 'unpersuasive'. She granted summary judgment in the employees' favour and ordered a trial on damages before a jury, scheduled to take place at another date.

Speaking to The New York Times, Professor Lawrence Gostin of Georgetown University commented: 'It's really a bizarre case... But beyond the comical it touches on some quite serious issues. Anyone in the future thinking about using a genetic test in ways that can embarrass or harm an individual will have to confront the fact that it violates federal law.'

'While the employer here was taking the DNA for identification purposes, once it gained access it could have theoretically tested for all kinds of other things, including issues related to health, and used that information to discriminate,' said Professor Jessica Roberts of the University of Houston Law Center.

The 'devious defecator', as Judge Totenberg referred to the suspect, was never identified.

‘Devious Defecator’ Case Tests Genetics Law
The New York Times |  29 May 2015
Jack Lowe and Dennis Reynolds v. Atlas Logistics Group Retail Services
Barrett & Farahany LLP |  5 May 2015
Test for ‘devious defecator’ was unlawful, judge rules
The Washington Post |  30 May 2015
Workplace Mystery, DNA Testing, and GINA
genomeweb |  1 June 2015
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