Burlington Northern and Santa Fe Railway Co. agreed to stop testing its employees for genetic defects as part of a workplace discrimination settlement announced yesterday between the railroad and the U.S. Equal Employment Opportunity Commission.
The settlement -- the first of its kind -- comes two months after the EEOC went to court to ask that the railroad be ordered to halt genetic tests on blood taken from employees who had filed claims for work-related injuries based on carpal tunnel syndrome.
EEOC officials said the settlement should serve as a warning to employers not to use genetic testing to discriminate against workers. In the lawsuit, the EEOC argued that basing employment decisions on the results of such tests violated the Americans With Disabilities Act.
"I think [the settlement] sends a clear message about what not to do to the entire employer community," said EEOC Chairwoman Ida L. Castro. "I think [the settlement] will help experts and laypersons to understand the ramifications of what will be up-and-coming issues concerning how to best use this new science."
A spokesman for the railroad said the settlement confirms what the company had voluntarily agreed to do. Several days after the EEOC case was filed, Burlington Northern had said that it would stop testing employees and that it would not resume testing.
"The settlement is consistent with the practice we've been following," said Burlington Northern spokesman Richard Russack.
Until the Burlington Northern case, filed in U.S. District Court in Sioux City, Iowa, the debate over biological screening in the workplace had been largely theoretical. As a result of the suit, the railroad became one of the first companies to acknowledge having used genetic testing on its employees.
"It's really the first serious look at that issue at all," Washington labor economist Marc Bendick said of the EEOC's case. "It's kind of catching the whole anti-discrimination community flat-footed. We have to update for a whole new set of issues."
The case began when a 45-year-old track-maintenance worker from Nebraska applied for compensation after developing what he said was carpal tunnel syndrome. The company threatened to fire him when he refused to allow a physician to do a blood test, according to the EEOC lawsuit. The worker's wife, a nurse, found out about the tests after asking the doctor why he would need to take so much blood for the sample. Until then, the company had been conducting the genetic tests without employees' knowledge.
The worker's union, the Brotherhood of Maintenance of Way Employees, filed a separate suit in Sioux City against the railroad. The Brotherhood of Locomotive Engineers later joined that suit, which was settled last week. As part of that settlement, the company agreed to consult the unions before trying to implement any genetic testing program. The EEOC settlement expands on that agreement. It also covers all company employees, not just the 25 percent who belong to the two unions.
As part of the EEOC agreement, the company said it would not retaliate against any worker who had refused to submit a blood sample for the tests, or had participated in the EEOC case.
The company also agreed to preserve blood samples and all related documents from the 30 or so workers it tested until the EEOC has finished investigating individual charges of discrimination against the railroad, which is based in Fort Worth. The agency could seek compensation and punitive damages on behalf of those workers who were either subjected to genetic testing or who were retaliated against for refusing to submit to such testing, EEOC officials said.
The settlement could set a precedent for lawmakers and courts to follow, Bendick said. Although hundreds of genetic tests have been available for medical and research purposes for years, it remains unclear how prevalent the practice might be in the workplace. Twenty-two states have enacted legislation that bans the use of genetic screening for making employment-related decisions. The D.C. Council is considering a bill that would protect workers from genetic testing, allowing its use by employers only if employees gave written consent.
In February, shortly after the Burlington Northern case was filed, Sen. Thomas A. Daschle (D-S.D.), Sen. Edward M. Kennedy (D-Mass.) and Rep. Louise M. Slaughter (D-N.Y.) introduced a bill to prohibit the use of genetic information as a basis for discrimination in employment and health insurance coverage.
"This landmark settlement provides important new protection against the emerging threat of genetic discrimination," Kennedy said in a statement yesterday.
"This was the right result. It gives people reassurance that the potential harms of genetic testing are going to be taken very seriously in our society," said Wylie Burke, head of the department of medical history and ethics at the University of Washington in Seattle.
Many scientists said they were baffled by the railroad's genetic test because it tested for a condition that was extremely rare. The test sought to identify a genetic defect that some experts believe can predispose a person to some forms of carpal tunnel syndrome, a musculoskeletal disorder that causes pain and numbness in the hand or wrist. But scientists disagree over whether the test the railroad used is actually an accurate predictor of whether someone will develop carpal tunnel syndrome.
