We would like to thank Adam Bennett, one of Porter Wright’s summer law clerks, for his significant contributions to this blog post.

If a recent federal court case is any sign of the times, employers should think twice before engaging in their own forensic crime scene style investigations of employee questionable behavior—even if the employee is suspected of repeatedly defecating in public areas of the workplace. Employers sometimes forget that the Genetic Information Nondiscrimination Act (GINA) prohibits requesting employee genetic information. Any improper request for employee genetic information is likely to lead to legal woes and a lot of dollars flushed down the drain.

A federal court jury recently granted two former employees of Atlas Logistics Group Retail Services LLC a $2.23 million award. Lowe v. Atlas Group Retail Servs. Atlanta, LLC, No. 1:13-CV-2425-AT (decision denying summary judgment to employer here). Atlas was determined to track down a serial defecator with a penchant for seeking relief in the open areas of a company warehouse. Its loss prevention manager compared employee work schedules to the timing and location of the defecation episodes in order to create a list of employees who may have been responsible. After creating a list of suspects, Atlas requested cheek swabs from the mouths of the two employees to run DNA analysis. Atlas hoped to link the DNA samples to the “evidence” of the wrongdoing. The two employees complied but sued under GINA after they were found innocent. (Apparently the culprit remains on the loose.)

Except in extremely limited circumstances set forth in EEOC regulations, GINA makes it unlawful for an employer to request, require, or purchase an employee’s genetic information. Based on the statutory language, Atlas violated GINA when it asked the employees for a cheek swab.  The violation occurred even though the former employees voluntarily complied with the request. The employees’ case survived summary judgment and went to trial where they prevailed.

While the facts of this case might be humorous and sensational, GINA is no laughing matter. In 2013, Fabricut Inc. was forced to pay out $50,000 to an applicant when the applicant filed suit based on a pre-employment medical examination and questionnaire. The questionnaire requested information about the applicant’s medical history, including questions about the existence of cancer, tuberculosis, diabetes, and mental disorders in her family. While the medical examination might have been justifiable, the questionnaire violated GINA. More recently, Founders Pavilion, a nursing and rehabilitation center, settled a discrimination lawsuit with the EEOC for $370,000 because it too requested applicant medical history as part of its pre-employment medical examination process. The Fabricut and Founders Pavilion cases represent more typical GINA cases and the type of wrongdoing GINA set out to prohibit.

Employers that request genetic information of applicants and employees must be aware that these requests will come at a high price.