Thursday, August 6, 2015


Devious defecator case
Opens DNA Pandora's Box


Thanks to Advisen FPN, I came across The Case of the Devious Defecator.

Hercule Poirot (Agatha Christie), Lord Peter Wimsey (Dorothy L. Sayers), Miss Marple (Agatha Christie), Philip Marlowe (Raymond Chandler), Sam Spade (Dashiell Hammett), Sherlock Holmes (Arthur Conan Doyle), and even Chief Inspector Jacques Clouseau (Blake Edwards) could not solve this case. See Famous sleuths, below

But it did cost the defendant $2.25 million (that may be reduced on appeal).

THE CASE REVOLVES AROUND the Genetic Information Nondiscrimination Act (GINA).

I am not a lawyer and I don't play one on tv, but after a quick scan of the Act it seems to be somewhat ambiguous.

A food vendor repeatedly found feces in the warehouse. In order to determine who (or what) was making these "deposits" a number of actions were taken, leading the defendant (the vendor) to two primary suspects.

The vendor asked the two suspects to allow a cheek swab to compare their DNA with DNA from the evidence. The DNA proved the two suspects were innocent.

However, the two men filed suit claiming the taking of their DNA samples violated the provisions of the Act. Georgia Federal District Judge Amy Totenberg agreed.

The sequence of events is laid out in a Washington Post article titled Test for ‘devious defecator’ was unlawful, judge rules. The defendants told the court that they felt compelled to submit to the DNA swabs in order to keep their jobs.

The following is a cut-n-paste from the Act:

    (4) Genetic information (A) In general The term ‘‘genetic information’’ means, with respect to any individual, information about—
    (i) such individual’s genetic tests,
    (ii) the genetic tests of family members of such individual, and
    (iii) the manifestation of a disease or disorder in family members of such individual.

    (7) Genetic test (A) In general The term ‘‘genetic test’’ means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.
    (B) Exceptions The term ‘‘genetic test’’ does not mean an analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes.

    § 2000ff–1. Employer practices

    (a) Discrimination based on genetic information It shall be an unlawful employment practice for an employer
    (1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or
    (2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee

According to the defendant, the DNA testing performed to confirm or deny a match between the suspects and the feces did not violate the law since it did not consider genotypes, mutations, or chromosomal changes.

THE BOTTOM LINES for the defendant are two:

  1. The police DO have the authority run DNA testing and what the defendant SHOULD have done was report the frequently found feces to the police and let the police investigate.
  2. Seek legal advice before doing anything that has not been cast into legal concrete; if a law can be interpreted, seek the opinion of a "higher authority." In this case, the EEOC. The EEOC enforces the federal laws that prohibit employment discrimination, including Title II of GINA. See 42 U.S.C. 2000ff. The EEOC published a final rule implementing the statute on November 9, 2010. See 29 C.F.R. part 1635 (2011) titled PART 1635—Genetic Information Nondiscrimination Act Of 2008,


Famous sleuths: Excerpted from Top 10 Fictional Detectives; tv detectives (e.g., Jim Rockford, Lt. Columbo, and Sgt. Joe Friday to name just three.

Pandora's box, alternatively, Pandora's jar: Pandora's box is an artifact in Greek mythology, taken from the myth of Pandora's creation in Hesiod's Works and Days. The "box" was actually a large jar given to Pandora ("all-gifted", "all-giving") that contained all the evils of the world.

Today the phrase "to open Pandora's box" means to perform an action that may seem small or innocent, but that turns out to have severely detrimental and far-reaching consequences.

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