Gene Testing Halted, Burlington Northern Now Braces for ADA Test

April 23, 2001 ( - Having just reached a settlement with the Equal Employment Opportunity Commission, Burlington Northern will now have to fend off an EEOC investigation of age-based discrimination complaints.

The Fort Worth, Texas-based railroad just reached a settlement with the EEOC that barred it from testing employee DNA or retaliating against workers who challenged the practice.

With that issue resolved, the EEOC will now turn its attention to complaints that the railroad’s practice violated the Americans With Disabilities Act, according to Laurie Vasichek, an attorney with the EEOC’s Minneapolis office, according to a report from the Associated Press.

Burlington Northern denies in the settlement agreement that it violated the act. However, if the EEOC finds violations of the act, it could seek damages of up to $300,000 per employee.

The affected workers are reportedly preparing their own suits under different state and federal laws. Those complaints argue that their employer violated their privacy and didn’t tell them it was testing their genes.

Test Basis

Last Wednesday, Burlington Northern issued a statement saying that it had requested genetic tests for about 35 employees who had claimed their carpal tunnel injuries were work-related. About 20 of the workers submitted to the test, according to the railroad.

The tests were conducted as part of a broad medical examination based on the findings of a study which suggested there may be a genetic factor in some cases of carpal tunnel syndrome, a painful disorder of the hands and wrists.

Specific Focus

This is the first genetic testing case that the EEOC has brought against an employer under the Americans With Disabilities Act. While the ADA doesn’t prohibit employer-directed medical tests on their workers, it does limit those tests to specific conditions, such as determining the ability to perform a specific job.

In court documents, the EEOC argued that Burlington Northern’s testing didn’t pass muster, since the genetic test wouldn’t measure a worker’s current ability to perform a job, but rather might predict a potential physical problem.

The agency said that such a test would result in a company discriminating against an employee by acting on the basis of genes that might cause a problem in the future.

– Nevin Adams