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How Genetic Discrimination Works


Devious Defecation
Surrounded by members of Congress, U.S. President George W. Bush signs the Genetic Information Nondiscrimination Act of 2008 during a ceremony in the Oval Office at the White House.
Surrounded by members of Congress, U.S. President George W. Bush signs the Genetic Information Nondiscrimination Act of 2008 during a ceremony in the Oval Office at the White House.
Mark Wilson/Getty Images

In May 2008 President George W. Bush signed a new law into effect: the Genetic Information Nondiscrimination Act (GINA). It's pretty self-explanatory: GINA was designed to prevent health insurers and employers from discriminating against American citizens based on their genetic information. Legislators were motivated, in part, by the desire to ease citizens' fears about having their DNA tested. After all, in some instances, DNA testing could help improve the health outcomes of individuals with certain genetic predispositions.

Important as it is, GINA is limited in scope. It says nothing about life insurance, for instance, or educational organizations such as the Palo Alto school board. That's why the Chadams used the ADA and not GINA to argue their case.

Nevertheless, GINA can be, and has been, used in court. In one of the first cases in which GINA was cited, a woman named Pamela Fink claimed she was fired from her job because she had tested positive for the BRCA 2 gene mutation that indicates an increased risk of developing breast cancer. The case was settled out of court.

Oddly enough, the first time a GINA case actually went to trial had to do with excrement.

Dateline: Atlanta, Georgia. The warehouses operated by Atlas Logistics Group Retail Services are filled with groceries waiting for delivery to a variety of stores in the area. They were also being stocked with felonious feces from an anonymous contributor. That's to say, somebody was pooping where they shouldn't.

Unable to track down the offender, Atlas requested that two suspected employees fork over their DNA via cheek swabs. The company then compared the DNA from the swabs with that found in the errant poo. No positive results, and the employees were peeved. In 2013 they sued, putting GINA to the test. The law says employers can't use their employees' genetic information to hire, fire, promote or demote them.

Atlas argued that GINA wasn't pertinent in the case because they hadn't asked for the swabs to learn anything about their employees' medical history, but rather to identify an offender. The jury didn't buy it. If the DNA of the employees had matched the poo, it was clear the two men would have faced consequences amounting to demotion or firing, either of which is illegal under GINA. The jury awarded the employees $2.25 million in damages [source: Beck].

The U.S. Equal Employment Opportunity Commission (EEOC) enforces anti-discrimination laws. In 2010 they cited GINA in 201 (or 0.2 percent) of the cases they filed. That number rose to 333 (or 0.4 percent) by 2013 and then fell to 257 (0.3 percent) in 2015. Those are relatively small numbers, and for the most part, employers don't seem to be using genetic information in ways that violate GINA, so it appears that the law is working. Or is it?


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