In a previous post we discussed the Northern District of Georgia’s decision in Lowe v. Atlas Logistics Group Retail Services, LLC, (N.D.Ga. May 5, 2015), holding that an employer violated the Genetic Information Nondiscrimination Act (“GINA”) by obtaining DNA samples from two employees it suspected of repeatedly defecating in a company warehouse.  Last week, a jury awarded the plaintiffs in that case $2.23 million in damages, consisting of $475,000 in emotional distress damages and $1.75 million in punitive damages based on the employer’s reckless indifference to their federally protected rights.  The case’s facts certainly offer a bizarre combination of the ludicrous and the revolting, but they also demonstrate the significant costs to employers of failing to comply with GINA.

Although Lowe appears to be the first case in which an employer conducted DNA testing of employees in connection with a disciplinary investigation, GINA also prohibits a wide range of less invasive activities, such as internet searches, eavesdropping, searching personal belongings and asking health-related questions that are likely to elicit genetic information about an employee.  Given the scope of GINA’s prohibitions, all employers should update their training policies for managers and supervisors to include best practices for avoiding GINA violations.

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