In June 2015, food safety proponents were horrified at the $2.2M jury verdict against an employer who used voluntary DNA testing to determine which of its employees had been intentionally adulterating food stored in its warehouse. While the facts of the case are bizarre and the verdict more than surprising, the decision does not pose an impediment to a food facility’s ability to effectuate a comprehensive food safety program. Instead, the case serves as a reminder that other legal rights and duties continue to exist that cannot be trampled or ignored in the quest to continually heighten the safety of this country’s food supply systems.
The case, Lowe v. Atlas Logistics Group Retail Services (Atlanta), LLC, sitting in the Northern District of Georgia, arose when Atlas Logistics Group Retail Services (“Atlas”) discovered that human feces were intentionally being left in the aisles of its grocery warehouse distribution center. Atlas investigated and created a list of employees who it believed could potentially be responsible, based upon work shifts, areas of responsibility, etc. Given the nature of the “adulteration” that threatened the food products, Atlas asked the select list of employees to submit to a voluntary DNA test. Both Jack Lowe and Dennis Reynolds consented to the DNA test and both had results which exculpated them. Neither were thereafter terminated or in any way reprimanded. Both then filed claims with the EEOC and later filed a lawsuit against Atlas under the federal Genetic Information Non-Discrimination Act (GINA) that prohibits employers from requesting, requiring or purchasing genetic information relating to employees. Finding that asking employees to submit to a voluntary DNA test was a violation of GINA, the Georgia jury awarded $475,000 in compensatory damages for mental anguish and damage to reputation and another $1.75M in punitive damages.
The GINA was drafted to prohibit employment discrimination and health insurance consequences on the basis of genetic information. Congress expressed concerns about the misuse of genetic information available about employees through healthcare, citing numerous examples of inappropriate uses of genetic information against certain groups in this country’s past. To that end, GINA prohibits employers from even asking for genetic information, except in six very limited exceptions. While GINA was obviously not drafted with the facts of this lawsuit in mind, it was prepared to protect legitimate personal privacy rights.
At first glance, the result seems absurd. Food was being adulterated, rendering them unsafe and potentially putting consumers at risk. The responsible defecator(s) could potentially be identified by DNA results. Atlas asked a narrow list of employees for a voluntary DNA sample. At first glance, the scenario seems a reasonable action to be taken by the facility owner under the circumstances. But the employees testified that the DNA test was not “voluntary” because they feared loss of their jobs if they did not cooperate. The employees also testified they were concerned whether their DNA results would be stored or used for other purposes. Remember that even state and federal law enforcement have rigid limitations on the collection and use of DNA evidence.
With so much effort being invested to improve the safety of this country’s food supply systems, we cannot forget this isn’t the only game in town. This country has long struggled with the balancing of the rights of individuals with those for the common good of society. And as science develops at a rate of speed much faster than laws can keep up, the balancing of those rights is often left to the court system to decipher when Congress has yet to clarify the overlaps. What is clear is that our history is replete with examples of new laws, social concerns and efforts to protect the common good that may step on the rights of individuals, intentionally or not, until the conflict and balancing of those competing interests are brought before a court of law.
As an example of the competing interests of society’s common good with individual rights, the recent outbreak of Ebola in this country created a massive medical effort to prevent the spread of the disease and creation of a pandemic. In an effort to protect society as a whole from the disease, the confidential HIPPA (Health Insurance Portability and Accountability Act) rights of affected individuals were at times violated and in some cases released publically. Lawsuits are pending.
A topic hotly debated and yet to be resolved is the right of parents to choose whether to vaccinate their children. Parents argue that it is their personal right to choose what medical care (i.e., vaccinations) to subject their children to, and, in some instances, it involves implications of religious freedoms. The growing backlash centers on the rights of society and, in particular, other children to not be subjected to life-threatening diseases. No blanket answer or law has yet been determined. But the debate and its solution will require a balancing of those personal and societal rights.
Likewise, the new laws insuring the safety of the food supply in this country are widely acknowledged as necessary for the protection of the good of consumers in this country as a whole. But in the rush to implement the Food Safety Modernization Act and associated regulations, let us not lose sight that there are other pre-existing laws and rules that already exist, laws that often protect the rights of individuals and cannot be disregarded in our zealous effort to reach these new goals. To the extent these laws and rights conflict, there will be litigation to come, which will require courts to determine how these rights can be balanced.
On a lighter note, the Georgia trial court in the Atlas case granted a motion for remittitur last week and reduced all damages awarded by the jury to $300,000 for Mr. Lowe and $300,000 for Mr. Reynolds. Still not a bad day at the office.
Kathy Hardee, Esq., is co-chair of the Food & Agriculture Industry Group at Polsinelli, PC, which is composed of a team of attorneys from every legal practice area and who each have a focused background in the food industry.