Railroad Settles Genetic Testing Case
The Burlington Northern & Santa Fe Railway Co. agreed to a court order Wednesday that prohibits the company from conducting genetic tests on workers, settling the first legal challenge of the practice by the U.S. Equal Employment Opportunity Commission.
But the nation’s second-largest railroad faces an ongoing investigation by the EEOC and possible lawsuits over allegations that it violated the Americans With Disabilities Act by subjecting 20 workers’ blood samples to genetic testing.
“I don’t want to speculate on what might happen after their investigation,” said Patrick D. Hiatte, a spokesman for the Fort Worth-based railroad. “It’s our position that we did not violate the ADA.”
Laurie Vasichek, a Minneapolis-based EEOC attorney overseeing the case, said the order and ongoing investigation should serve as a warning to companies that attempts to conduct unwarranted genetic tests on workers can have swift consequences.
“It shows how quickly the EEOC is prepared to act to stop this kind of testing,” she said. “Under the Americans With Disabilities Act, employers are restricted in even asking for medical examinations. The only time they can ask for medical exams of current employees is if those exams are job-related or consistent with business necessity.
“The [Burlington Northern] allegations were that they were violating this prohibition under the ADA against medical tests.”
The case is considered an important test of the EEOC’s ability to use the Disabilities Act against genetic testing in the workplace. It is one of only a few such instances of workplace genetic testing that have come to light and the first to result in an EEOC court action.
The railroad said it conducted the genetic tests as part of medical investigations of 35 workers’ claims that their jobs had caused carpal tunnel syndrome, a wrist condition commonly associated with repetitive work and the nation’s most frequently reported occupational injury. The railroad said it completed the tests on 20 of the workers.
The tests were meant to find a genetic marker that allegedly predisposes a person to carpal tunnel. Experts, however, including the doctor who discovered the marker, said the DNA screen is of little or no value in determining whether an individual case of carpal tunnel syndrome is hereditary or brought on by repetitive motion.
In January, at least three workers complained to the EEOC that they suspected their blood had been genetically tested without their knowledge or consent. A fourth worker refused to have his blood drawn. The railroad ordered him to a disciplinary hearing, and he complained to the EEOC.
The commission responded by asking a federal judge to force the railroad to halt the genetic testing. Three days later, on Feb. 12, the railroad announced that it had unilaterally stopped the program.
The formal agreement with the EEOC submitted to the court Wednesday prohibits the railroad from asking workers to submit to genetic tests of any kind.
It also bars the company from threatening or retaliating against any worker who objected to the genetic test or who participates in the ongoing investigation. The railroad also must preserve documents, blood samples and analyses related to the genetic tests that may become part of the investigation.
According to a separate settlement last week in a lawsuit brought by the Brotherhood of Maintenance of Way Employes union, the railroad must ultimately destroy the blood samples and records of the tests. The union settlement also includes a pledge by the railroad to support a congressional bill to prevent genetic testing of workers.
Neither settlement involved monetary damages. But if the EEOC concludes that the railroad violated the Disabilities Act, the affected workers could sue for damages.
