A federal jury has concluded that an Atlanta grocery warehousing firm must pay two employees a combined $2.2 million for forcing them to submit to a buccal cheek swab to determine if their DNA was a match to feces being left throughout the facility.

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Employees Jack Lowe and Dennis Reynolds declined a combined $200,000 settlement offer from Atlas Logistics Group Retail Services. Instead, they forged ahead with the first damages trial resulting from 2008 civil rights legislation that generally bars employers from using individuals' "genetic information" when making hiring, firing, job placement, or promotion decisions.

Atlas Logistics claimed the "genetic information" at issue wasn't covered by the Genetic Information Nondiscrimination Act (GINA). Atlas Logistics asserted that GINA excludes analyses of DNA, RNA, chromosomes, proteins, or metabolites if such analyses do not reveal an individual’s propensity for disease.

US District Judge Amy Totenberg, however, refused to toss the case, which she described as the search for the "devious defecator" who left "offending fecal matter" across the Atlanta-area warehouse that sorted and delivered products for grocery stores. The judge ruled that the "plain meaning of the statute's text" is satisfactory for the case to go forward despite the tests at issue not revealing disease propensities.

Following the Monday verdict (PDF) Atlas said it was mulling an appeal. On Tuesday it filed papers demanding that the combined verdicts be reduced (PDF) to $300,000 for each plaintiff. The law caps damages at $300,000 each, Atlas said in court papers.

The two plaintiffs were singled out because their work schedules coincided with the timing and location of what the court termed the "defecation episodes."

The warehouse firm hired Speckin Forensic Laboratories to perform the buccal swab samples of the plaintiffs to compare them against the fecal matter left on site. Speckin recommended Short Tandem Repeat (STR) analysis. The tests cleared Lowe and Reynolds.