Workplace Genetic Testing Lawsuit Settled

The Equal Employment Opportunity Commission settled its first court action challenging the use of workplace genetic testing\r\nunder the Americans with Disabilities Act.

The Equal Employment Opportunity Commission (EEOC) settled its first court action challenging the use of workplace genetic testing under the Americans with Disabilities Act of 1990 (ADA).

EEOC was suing Burlington Northern Santa Fe Railway (BNSF) to end genetic testing of employees who filed claims for work-related injuries based on carpal tunnel syndrome.

"EEOC sought the preliminary injunction to prevent irreparable harm to employees who faced the impossible choice of potentially losing their jobs or revealing their genetic makeup," said Ida Castro, EEOC chairwoman. "Our swift action in this case allows BNSF employees subjected to genetic testing to continue work free of retaliation and future invasions of privacy in violation of the ADA."

According the lawsuit, BNSF''s genetic testing program was carried out without the knowledge or consent of its employees, and at least one worker was threatened with termination for failing to submit a blood sample for a genetic test.

Under the terms of the settlement, BNSF admits it tested certain employees for a genetic marker, and the company "agrees it will not request employees to undergo genetic tests, will not discipline any employees for refusal to submit to genetic tests and will preserve all records in its control."

In its ongoing investigation of the initial charge filings, EEOC said it may seek compensatory and punitive damages up to $300,000 per individual for a class of claimants ranging from 20 to 30 BNSF workers who were either subjected to genetic testing or retaliated against for failing to submit to such tests.

"The commission will continue to respond aggressively to any evidence that employers are asking for or using genetic tests in a manner that violates the ADA," said Paul Steven Miller, EEOC commissioner, who in July 2000 testified before Congress on genetic discrimination.

Congress has not acted on the matter. Senate Minority Leader Tom Daschle, D-S.D., filed a bill for a third consecutive year to ban genetic discrimination from the workplace and health insurance plans.

The bill has been assigned to the Health, Education, Labor and Pensions Committee, which has not acted.

It is unclear how often genetic information is gained and used in the workplace.

A survey of 2,133 employers last year by the American Management Association found that seven use genetic testing for either job applicants or employees.

by Virginia Sutcliffe

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