It is a lesson that should be loud and clear for employers across the nation. Genetics, DNA and employee privacy are not things to be taken lightly, or at all for that matter. In this case, the unfortunate experience of Atlas Logistics Group Retail Services can literally be summed up as the poop heard round the (risk management) world.
And with a jury awarding two employees $2.25 million dollars, it was very expensive poop.
Perhaps I should start at the beginning. Atlas Logistics Group Retail Services is a grocery distributor, and they had a major problem to contend with. Someone was leaving piles of human feces around one of their warehouses. I think we can all agree that is a pretty crappy problem to have, and understand that extraordinary measures would have to be taken to identify the party responsible for, um, delivery. They weren't exactly leaving a calling card with each deposit. For a warehouse handling groceries and foodstuffs, this could raise a pretty big stink.
The company attempted to identify what a judge would eventually label the “devious defecator” by compelling employees to undergo DNA testing. Two men who underwent the DNA swab, and who were cleared of suspicion because of it, sued the company, and were awarded the multimillion dollar sum on June 17th.
Clearly something went wrong here.
First, the men sued under a law passed by Congress in 2008, the Genetic Information Nondiscrimination Act, (GINA), which prohibits employers and insurance companies from discriminating against people with genes that increase their risks for costly diseases. That law was the basis for the lawsuit, contending that the tests could provide private medical information to the employer; information that could be used to discriminate against the men at some point in the future. This is the first case under the Federal law to go to trial, but experts believe that the case extends the original intent of the law a great deal.
You see, Congress probably never envisioned the need for a genetic investigation to identify a phantom crapper.
Another potential issue at stake in this case was that the testing was not uniform, in that every employee was not checked. According to the New York Times, the company “pulled aside two laborers whom they suspected. The men, fearing for their jobs, agreed to have the inside of their mouths swabbed for a genetic analysis that would compare their DNA with that of the feces.”
Both men claim they quickly became “the objects of humiliating jokes”.
I must be clear, taking genetic information from your employee directly violates federal law, and a broad “no exceptions” search of all employees may have been no more legal. However, it seems to me that it was the singling out and naming of suspects that really caused the big stink here; well, the second big stink here. What caused this situation to reach the courts, national attention, and of course this blog was likely the environment surrounding the allegations; allegations and alleged harassment by co-workers that would not have occurred if everyone was in the same pot, so to speak.
Apparently the company asked their Loss Prevention Manager to identify the troublesome turdster. He allegedly reviewed employee work schedules, and identified workers who may have been present when the loaves were liberated. He then “asked a forensics lab to compare the DNA of men the company suspected with the DNA of the feces to see if there was a match.” These men sued because they became the focus of a targeted search, and the reason for the effort didn't help matters.
For it's part, Atlas contends that the test “provided no medical information about the employees and that both kept their jobs and suffered no discrimination.” The case, however, hinged on whether the DNA samples constituted genetic information, even though they were not checked for, or in fact revealed, disease genes or other risk factors. Alas, GINA says an employer may not ask for or buy an employees genetic information, and clearly the court flushed that particular defense.
GINA is a relatively obscure and previously untested law. Any number of loss prevention managers may be completely unaware of the ramifications of violating its requirements. That is unfortunate, as any loss prevention manager worth their salt doesn't really want a multi-million dollar albatross of a lawsuit hung around their neck. That is not the sort of thing one mentions on one's resume. I do think the forensics lab involved may have some culpability here. If genetic testing is your business, it would seem to me that someone in your organization could have told the customer they were potentially entering a legal cesspool.
It is interesting to note that the devious defecator was never identified, and potentially lives to publicly poop again. He (or she) has seemingly gone dormant, or possibly constipated, for the time being. If it were to reoccur, I have several suggestions on how the person (or persons; it could be a street pooping gang) can be identified.
Extra security cameras would be a good start. Also, keep your eye peeled for someone carrying a newspaper, magazine or other reading material back into the deep dark recesses of the warehouse. Or, you could just give the janitor a baseball bat. I suspect the poor schlub who has to clean that crap up would track down the poop perp in a heartbeat. Problem solved.
Employers be warned. If you encounter a phantom crapper in the workplace, leave the cotton swabs in the first aid kit. Trying to secure your employees DNA will end up landing you in a lot more crap than you were originally dealing with in the first place.