Live

Watch CBSN Live

Can an employer ask for your DNA?

Is it ever OK for an employer to request a DNA sample from an employee? That question is at the center of the case of the "devious defecator," which is back in court today.

The case involves an Atlanta company called Atlas Logistics, which operates warehouses for products sold at grocery stores. In 2012, someone began repeatedly defecating in one of its warehouses. To sniff out the culprit, Atlas requested that several of its employees have their cheeks swabbed to compare their DNA to that of the unwanted deposits left on the floor.

Employees Jack Lowe, a forklift operator, and Dennis Reynolds, a deliveryman, were subjected to genetic testing. They were exonerated by their DNA and kept their jobs; the guilty party was never caught. The two men, however, filed suit under the Genetic Information Nondiscrimination Act of 2008 (GINA). The Act states that it is "...illegal for an employer to request, require, or purchase genetic information with respect to an employee."

"The law was designed to protect people's privacy and longevity in the workplace," CBS News legal analyst Rikki Klieman explains. It assures that workers cannot lose their jobs because of genetic discrimination or because DNA shows they might develop a costly medical condition.

Although Klieman believes the employer was "doing something very benign," and did not use the DNA with any intent to look at the men's genetic traits, Lowe and Reynolds claimed they were subjected to humiliation and discrimination.

"The law is really black and white," Klieman said. "It says that you can not take this genetic test."

U.S. District Court Judge Amy Totenberg agreed. She issued a summary judgment ruling last month in favor of the workers, saying that the DNA test they were subjected to qualified as a test that revealed genetic information, which the GINA law states is illegal.

Today the case returned to court to begin the penalty phase, with a jury weighing how severe a punishment the company should face.

Nita Farahany, a law professor and bioethicist at Duke University, tells CBS News, "The judge got it right." She said that GINA is written in plain language that clearly covers what the company did. "In this case, they required genetic testing," she said. "It's a violation to even ask for it, despite what you did with it." (Farahany's sister, Amanda Farahany, is one of the lawyers representing the workers.)

Further, the company could have easily avoided this controversy by skipping DNA testing and simply installing video cameras in the warehouse to catch the culprit; or they could have contacted local law enforcement officials to deal with the issue. "Police investigating it as a crime could have gotten genetic samples," Farahany said. "That wouldn't violate GINA."

How genetic testing helped one family fight cancer

The outcome of the penalty phase will be significant since it's the first case of its kind where an employer could have to pay damages.

"The amount of damages may not be substantial at all because it really is about their humiliation," Klieman said, "not so much about their invasion of privacy."

Farahany said that figuring out the cost of Atlas' wrongdoing is fascinating from a bioethicist's standpoint and important for the future of genetic testing. "People have access to all sorts of information about us," she said. "[Yet] we have no sense in how we monitor or value an invasion of privacy."

Currently, a handful of senators in Congress are working on potential changes to GINA to expand it to protect individuals in situations involving educational institutions and long-term healthcare, including life insurance companies. While Farahany says so far there have not been widespread incidents of misuse of genetic information, she believes that it is entirely possible that "we get to a place where there's much broader genetic testing." She says the law needs to keep ahead of the threat: "We want to prevent people from having fear."

"Ultimately we all worry about our DNA being out there," Klieman said. "And if it's out there someone can test it for any purpose that they want and we don't want that to happen as a society."