Many HR professionals still assume GINA only applies to rare or extreme situations. When the topic comes up, some remember the infamous “Devious Defecator” case but dismiss it as an outlier that could never happen in a normal workplace. That assumption is risky. Recent enforcement actions show that GINA violations are happening in ordinary HR conversations, not just bizarre investigations—and employers are still paying the price.

The “Devious Defecator” case comes from Lowe v. Atlas Logistics Group Retail Services (2015). In this case, employees at a warehouse facility were suspected of repeatedly defecating in the workplace. To identify the individual, the employer collected DNA samples from employees and compared them to DNA taken from the feces found at the facility. The court held that DNA testing is genetic testing under GINA, and that the employer’s investigative motive did not matter. The case became one of the most well-known examples of how far an investigation can go—and how quickly it can cross a legal line.

What many HR professionals miss is that GINA violations today are far more subtle. In recent EEOC actions, employers ran into trouble not because they conducted DNA testing, but because they asked about family medical history, genetic conditions, or related information during employment decisions. These questions often came up during benefits discussions, pharmacy programs, or medical-related conversations. Even when employers believed they were acting reasonably, the EEOC made it clear: genetic information is protected, and intent does not excuse the violation.

This is where HR must be especially careful. GINA violations frequently occur indirectly, when well-meaning HR professionals ask follow-up questions without realizing they’ve crossed into prohibited territory. ADA discussions, FMLA certifications, wellness initiatives, and benefits administration all create opportunities for accidental overreach. HR’s role is not to gather “helpful” information—it is to manage risk while staying within the boundaries of the law.

Common HR Situations Where GINA Risk Appears

• Asking about family medical history during hiring or onboarding
• Requesting additional medical details beyond what is job-related
• Wellness or benefits programs that collect health background information
• Pharmacy or health-plan initiatives tied to genetic conditions
• Managers asking follow-up questions after an employee mentions a relative’s illness

To keep GINA violations out of the workplace, HR should also rely on a clear compliance checklist.

GINA Compliance Checklist for HR

• Do not ask about family medical history in employment decisions
• Avoid follow-up questions that go beyond job-related medical needs
• Keep ADA, FMLA, and benefits processes clearly separated
• Train HR and managers on what qualifies as genetic information
• Never pressure employees to disclose medical or genetic details
• If genetic information is received inadvertently, do not use it and document appropriately

GINA may not come up every day, but when it does, the consequences can be serious. From the Devious Defecator case in 2015 to recent EEOC enforcement actions, the message is consistent: investigations and HR processes have limits. Strong HR professionals understand those limits, respect them, and protect their organizations by making thoughtful, compliant decisions.

Elga Lejarza

Founder & CEO

HRTrainingClasses.com

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