If you haven’t seen GATTACA, you should. It foretells a future in which discrimination based on genetic information is rampant. The case today eerily echoes GATTACA’s depiction of forensic investigation based on collection of DNA. Had the claim arisen after November 2009, the Plaintiff undoubtedly would have raised (and perhaps succeeded on) a Genetic Information Nondiscrimination Act claim (see previous post on GINA problems of proof). GINA has only six exceptions for the acquisition of genetic information by an employer. None is met here. Instead the employee was told that unless he provided a DNA sample for the employer’s internal investigation, he would be terminated. Because his claim arose from DNA testing in 2006, he instead relied unsuccessfully on an invasion of privacy claim and a state-statute-based claim on acquisition of genetic information.
Collection of DNA by Employers: Privacy in the Pre-GINA Era
Tate v. Woman’s Hosp. Foundation, 2011 WL 150200 (La. 2011)
Plaintiff was employed by defendant Hospital in its maintenance department. In 2006, one of plaintiff’s co-workers reported to a supervisor that someone “put urine in his toolbox.” Defendant commenced an investigation into the incident. When no one admitted responsibility, defendant instructed all of the maintenance department employees to submit to DNA testing, and advised that their employment would be terminated if they declined to provide samples (in the form of saliva swabs) for the DNA testing. Plaintiff informed defendant he was not responsible for the incident, and that he opposed the DNA testing. Nonetheless, plaintiff ultimately signed a DNA collection and analysis authorization form, although he included the handwritten notation: “Protest. I [think] this DNA testing is illegal.” Defendant retained ReliaGene Technologies, Inc. (“ReliaGene”) to perform the testing. Plaintiff’s DNA sample swab was returned to him. ReliaGene retained an electronic copy of plaintiff’s DNA profile in its computer database, along with a paper copy for accreditation purposes. The testing was inconclusive. Several months later, plaintiff filed the instant suit against defendant, alleging intentional infliction of emotional distress, defamation, abuse of rights, and invasion of privacy. Defendant moved for summary judgment. The district court granted summary judgment in favor of defendant, and dismissed plaintiff’s suit with prejudice. A divided five-judge panel on appeal found no error except on the district court’s judgment with regard to plaintiff’s invasion of privacy claim, concluding there was a genuine issue of material fact as to whether plaintiff’s consent to DNA testing was vitiated by the duress as a result of the threat of losing his job if he did not submit a DNA sample. The sole issue presented on appeal was whether defendant is entitled to summary judgment on plaintiff’s claim for invasion of privacy. The court found that because he consented to the testing, Plaintiff cannot establish invasion of privacy as a matter of law, and the court of appeals erred in reversing summary judgment. (On the GINA-analogous state claim, the Court read the context and legislative history of the state statute to prohibit an employer from using genetic information for discriminatory purposes, but not as a general prohibition on the use of genetic testing by an employee in a non-discriminatory context).