EEOC Settles, Warns On Genetic Testing Case

May 9, 2002 ( Burlington Northern Santa Fe has agreed to pay 36 employees a total of up to $2.2 million to settle a genetic-testing case with the Equal Employment Opportunity Commission - and the EEOC used the occasion to caution employers about the use of genetic tests.

“Without the willingness of BNSF to mediate and bring prompt closure, this case could have taken years to litigate. Instead, the parties were able to work collaboratively to bring this matter to an amicable resolution that satisfied the interests of all the parties concerned,” said EEOC Chair Cari M. Dominguez.

Test ‘Case’

The suit, filed by the EEOC in February of 2001, alleged that Burlington Northern violated the Americans with Disabilities Act of 1990 (ADA) by genetically testing or seeking to test employees without their knowledge or consent.

The company suspended the testing a few days after the EEOC filed the suit  – and two months later said it wouldn’t conduct any more genetic tests on workers.  The EEOC had claimed the policy violates the ADA since the exam is not job-related, or “consistent with business necessity.”   

The railroad was testing employee blood samples for Chromosome 17 deletion, which some studies suggest could predispose a person to some forms of carpal tunnel syndrome.  The test might show that the injury was not work-related.  The tests were intended to determine which workers might be genetically inclined to develop carpal-tunnel syndrome, possibly resulting in the denial of workers’ compensation benefits.

Blood Sampling

The case began when Gary Avary, a track maintenance worker in Nebraska, filed a work-related injury complaint.  The railroad required him to take a medical exam in which several vials of blood would be drawn. His wife, a nurse, questioned what tests required so much blood, and after numerous inquiries, was reluctantly told the exam might include some genetic workups, according to the Associated Press.

Avary refused and contacted a lawyer, his union and the EEOC, which sued to stop the tests.

About 125 railroad workers had filed reports of work-related carpal tunnel syndrome between March 2000 and February 2001. The company contacted 36 of those workers, telling them they had to have a medical exam – blood was actually drawn from 22 of the workers and testing was completed on 15 at the time the EEOC sued.

Cautionary Note

Yesterday the EEOC said it didn’t find evidence the railroad used genetic tests to screen out employees – and Burlington Northern reiterated that at no time did it use, or intend to use, any genetic test to screen workers. It also agreed to provide enhanced ADA training to its medical and claims personnel, as well as have senior management review of all significant medical policies and practices.

The commission cautioned employers generally to be aware that gathering a worker’s DNA might constitute a violation of the ADA.  EEOC Commissioner Paul Steven Miller noted that: “While the EEOC did not find that BNSF had 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.”

The settlement requires the approval of the U.S. District Court for the Eastern District of Wisconsin.