Railroad Will Pay $2.2 Million to Settle Worker DNA Testing Case

The Brave New World envisioned by Aldous Huxley got a setback this week when the Burlington Northern Sante Fe Corp. settled a case charging it illegally tested workers for genetic defects.

The Brave New World envisioned by Aldous Huxley got a setback this week.

Burlington Northern Santa Fe Corp. (BNSF) will pay $2.2 million to 36 employees to settle charges brought by the Equal Employment Opportunity Commission (EEOC) that it illegally tested workers for genetic defects. The railroad tested or attempted to test the workers, who claimed to have job-related carpal tunnel syndrome, for genetic predisposition to carpal tunnel.

EEOC Chair Cari M. Dominguez said the BNSF case was the first-ever EEOC litigation challenging genetic testing under the 1990 Americans with Disabilities Act. The EEOC claimed the tests violated the ADA. The ADA prohibits employers from requiring medical exams unless they are needed to determine whether a worker can perform a particular job.

"While the EEOC did not find that (Burlington Northern) used genetic tests to screen out employees, employers should be aware of the EEOC''s position that the mere gathering of an employee''s DNA may constitute a violation of the ADA," EEOC Commissioner Paul Steven Miller said in a statement.

The EEOC first learned about the genetic tests when several BNSF employees filed charges with the EEOC alleging that the railroad required them to submit to a medical examination that included a blood test for a specific genetic marker. The workers further alleged that certain employees faced possible discipline for refusing to submit to the medical examination.

In response to the charges, the EEOC sought a preliminary injunction in February 2001 to prohibit any further testing until such time as the EEOC had completed its investigation. At that time, BNSF, which employees 39,000 workers, agreed to suspend testing.

"We think that the mediation process worked well and achieved a reasonable conclusion of this matter, although we continue to believe that none of the company''s actions were contrary to the law," said Matthew K. Rose, chairman, president and CEO of BNSF. "As we said on Feb. 12, 2001, at no time did the company use, or intend to use, any genetic test to screen our asymptomatic employees. We are pleased with the Commission''s acknowledgment, that BNSF did not engage in genetic screening of asymptomatic employees for any employment action, which should correct any public misimpression about this matter."

Bills to ban DNA discrimination on the job appear to have stalled in Congress. Senate Majority Leader Tom Daschle (D-SD), who sponsored one of the bills, says the BNSF case highlights the fact that one, nationwide law is necessary to protect workers'' rights.

"The current patchwork of state laws concerning genetic information is confusing, inconsistent and inadequate," said Daschle.

"This particular case illustrates the great potential for the misuse of genetic testing in the workplace," said Dr. Robert Goldberg, former president of ACOEM. "Genetic testing involves the most private, confidential information about oneself, and should not be used to support discrimination in employability or insurability. Federal agencies are already barred from using genetic information in hiring and promotion practices; such guidelines should extend to all employers."

The $2.2 million will be paid within 90 days and will be split among the 36 workers according to how much of the testing process they endured, according to the EEOC.

by Sandy Smith (ssmith@penton.com)

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