U.S. Asks Court to Stop Railroad From Genetic Testing

The U.S. Equal Employment Opportunity Commission for the first time asked a court Friday to stop a company from testing its employees for genetic defects, setting up an unprecedented legal battle over medical privacy in the workplace.

In a petition filed in U.S. District Court in the Northern District of Iowa, the commission asked that Burlington Northern Santa Fe Railroad be ordered to stop using such tests on blood from employees who have filed claims for work-related injuries based on carpal tunnel syndrome.

The railroad, in response, is considering telling the court that it will stop the testing for 60 days, said Richard Russack, a company spokesman. He said the company will use that time to “evaluate the situation.”

The debate over biological screening in the workplace has intensified as scientists unravel the human genetic code, but the controversy has largely been theoretical so far. As a result of the EEOC lawsuit, the company has become one of the first to acknowledge having used genetic testing on its employees, according to the agency’s lawyers. Concern that such tests could be used to weed out workers based on their genetic predispositions to injury or disease has led 22 states to ban the use of genetic screening for making employment-related decisions.

In December, Montgomery County, Md., became the first local jurisdiction in the nation to pass a bill forbidding job discrimination based on a person’s genetic code. The EEOC argues that basing employment decisions on the results of genetic tests, such as those used by the railroad, violates the federal Americans With Disabilities Act.

“As science and technology advance, we must be vigilant and ensure that these new developments are not used in a manner that violates workers’ rights,” said EEOC Chairwoman Ida Castro.

Russack, the railroad’s vice president of communications, said that “there may have been instances” when the company asked employees to submit to genetic testing. He said the company had not required employees to do this.

The EEOC’s action came just three days before scientists are scheduled to announce the results of their first comprehensive analysis of the full human genetic code, work that is expected to quickly lead to discovery of new disease genes and development of new predictive genetic tests.

Although hundreds of genetic tests have been available for medical and research purposes for years, it’s unclear how prevalent genetic testing is in the workplace. However, there has been increasing concern that employers or insurance companies could use tests to discriminate in situations such as hiring or providing health-care coverage.

A year ago, then-President Clinton signed an executive order prohibiting federal departments and agencies from making employment decisions based on protected genetic information. And next week, Sen. Tom Daschle (D-S.D.), Sen. Edward Kennedy (D-Mass.) and Rep. Louise Slaughter (D-New York) plan to introduce legislation to prohibit the use of genetic information as a basis of discrimination in employment and in health insurance.

The EEOC alleges that the railroad requires workers who have submitted claims of work-related carpal tunnel syndrome to provide blood samples, which are used for a genetic test. The test seeks to identify a genetic defect that some experts believe can predispose a person to forms of carpal tunnel syndrome--a musculoskeletal disorder that causes pain and numbness in the hand or wrist. The condition is thought to be caused by repetitive motion.

The EEOC also alleges that employees were not informed of the genetic test or asked to give their consent. The agency also alleges that the company has threatened to fire one employee who refused to provide a sample because he suspected it would be used for such a test.

Separately, the Brotherhood of Maintenance of Way Employees, which represents the railroad workers, has filed a lawsuit against Burlington Northern and Athena Diagnostics, one of the companies that tested the workers’ blood. The union asked the same court to prohibit Athena from testing the workers’ blood because the workers had not given their consent.

Max Gershenoff, an Athena spokesman, said he would not comment on pending litigation but added, “It is Athena Diagnostics’ policy to only accept samples from physicians.”

The union said the railroad collected samples from 125 employees and 18 of those samples have been subject to the genetic tests.

Railroad worker Gary Avary suffered from carpal tunnel syndrome and required surgery, according to the EEOC. After submitting a claim to the railroad for compensation, Avary submitted medical information as proof of his injury, according to the EEOC. The company then sent him a letter saying he would need to be examined by another doctor so the company could obtain “objective” information, according to a copy of the letter.

Avary contacted the second physician, who told him he would need to submit a blood sample, according to the EEOC. His wife, Janice Avary, said she asked the doctor’s office about this blood test. Through conversations with a doctor, Avary found out that her husband’s blood would be submitted for genetic testing, she said.