United States District Court for the Northern District of Georgia Finds Employer Liable for Violation of Genetic Information Nondiscrimination Act ("GINA") in the Case of the "Devious Defecator" - Lowe V. Atlas Logistics Group Retail Services, LLC 1

United States District Court for the Northern District of Georgia Finds Employer Liable for Violation of Genetic Information Nondiscrimination Act ("GINA") in the Case of the "Devious Defecator" - Lowe v. Atlas Logistics Group Retail Services, LLC1 - On May 5, 2015, the Honorable Amy Totenberg of the United States District Court for the Northern District of Georgia partially granted Plaintiffs Jack Lowe and Dennis Reynold's motion for summary judgment finding Defendant Atlas Logistics Group Retail Services, LLC's request for genetic information from the Plaintiffs to be a violation of GINA.2 In so holding, the court found that the definition of "genetic information" within GINA includes a buccal swab test administered by employers to match unidentified genetic material to its employees.3 On June 22, 2015, a jury awarded plaintiffs $2.225 million in damages.4 Lowe v. Atlas Logistics Group Retail Services, LLC is the first case to find a defendant liable for a GINA violation and the first jury award under GINA's private right of action.5In 2012, Atlas Logistics, a transportation and storage servicer for the grocery industry, began an internal investigation after numerous instances of human feces were found in one of its warehouse facilities.6 Atlas's Loss Prevention Manager narrowed down the list of possible suspects by "comparing employee work schedules to the timing and location" of the feces.7 Plaintiffs Jack Lowe and Dennis Reynolds were among those considered as possible defecators, and both consented to buccal swab tests.8 After collecting DNA samples from the Plaintiffs' mouths, Atlas contracted a forensic laboratory to compare the Plaintiffs' DNA to a fecal sample found in the warehouse.9 The Plaintiffs agree that Atlas did not possess the intent nor the ability to "(1) uncover information about an individual's propensity to develop a disease in the future, (2) discover whether an individual's offspring has a genetic mutation that would result in a health condition with physical manifestations, or (3) collect or analyze medical information" with the genetic test used.10 Within weeks of collecting DNA samples, the forensic laboratory determined that neither Plaintiffmatched the fecal sample tested.11On March 27, 2013, shortly after receiving their exculpatory notice from the forensic laboratory, both Plaintiffs filed complaints with the Equal Employment Opportunity Commission ("EEOC") alleging GINA violations.12 The EEOC determined that based on the underlying facts, Atlas was not in violation of GINA.13 On July 22, 2013, both plaintiffs filed civil claims within the ninety-day statutory deadline following the EEOC's decision.14 On October 30, 2014, the Plaintiffs filed a motion for partial summary judgment and the Defendant filed a motion for summary judgment.15Congress enacted GINA in 200816 as a comprehensive new civil rights legislation prohibiting employers and insurers from discriminating "on the basis of genetic information."17 Congress stated that the purpose of passing a prospective protection against the discriminatory use of genetic information was to "allay . . . concerns" about the increase in genetic testing in modern society, "thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies."18 GINA's prospective scope is unique among civil rights statutes because its application is predominately theoretical and not in response to past or current events.19GINA requires plaintiffs to establish that a defendant: (1) is a qualified employer that (2) requested or disclosed (3) plaintiff's "genetic information."20 The parties only disputed whether Atlas's actions qualified as a prohibited "genetic test" within the definition of "genetic information" as defined by rule 29 C.F.R. 1635.3(c)(i).21 Atlas argued that GINA only prohibits genetic tests that identify propensity for disease, and thus the test that Atlas administered is not governed by GINA. …