Well, that stinks! Doo-doo creates a discrimination claim.

Did I ever tell you about the one in college we called “The Mad Pooper”? (Actually, we didn’t use the word “Pooper.” We used another word that better expressed our distaste for this individual).

It was during my freshman year of college. More often than not after a night of revelry and intoxication, which generally fell on a day that ended in “Y,”  a phantom defacator would infiltrate our co-ed bathrooms and leave a calling card — or, more accurately, a bowel movement — right in the middle of the floor. 

[…and cue music]

It was bad enough, the next morning, that you’d have to take a shower in three inches of standing water. (Good thing for “shower shoes” ***sigh***). But, walking into the bathroom and seeing not a Baby Ruth staring back at you from someplace other than center mass in a bowl of porcelain was never a pleasant way to start the day.

In hindsight, if I’d had my way, we’d have cheek-swabbed the entire dorm until we DNA-confirmed The Mad Pooper. However, to my knowledge, this unidentified deucer remains at large.

Que sera.

The modern-day version of The Mad Pooper.

Really, Judge Amy Totenberg’s opinion in Lowe v. Atlas Logistics Group Retail Services (Atlanta), LLC, needed no build-up from me. Here’s the first paragraph (first footnote is hers; second is mine):

Atlas Logistics Group Retail Services (Atlanta), LLC (“Atlas”) operates warehouses for the storage of products sold at a variety of grocery stores. So one could imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses.,1 To solve the mystery of the devious defecator, Atlas requested some of its employees, including Jack Lowe and Dennis Reynolds,2 to submit to a cheek swab. The cheek cell samples were then sent to a lab where a technician compared the cheek cell DNA to DNA from the offending fecal matter. Lowe and Dennis were not a match. With the culprit apparently still on the loose, Lowe and Dennis filed suit under the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., which generally prohibits employers from requesting genetic information from its employees.

1Apparently, this problem is not as rare as one might imagine. See Ashtari, EPA Employees Asked To Stop Pooping In The Hallway, Huffington Post (June 26, 2014 10:59 AM).

2Not this Dennis Reynolds; another Dennis Reynolds.

So, did the employer violate GINA?

In a word, yes:

[GINA] makes it an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee….the Court determines that the unambiguous language of GINA covers Atlas’s requests for Lowe’s and Reynolds’s genetic information and thus compels judgment in favor of Lowe and Reynolds. This case is not one of the rare instances where overwhelming extrinsic evidence demonstrates a legislative intent contrary to the text’s plain meaning.

Employer takeaway.

Two words: Pepto-Bismol video surveillance.

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