Railroad will pay $2 million to workers it genetically tested

WASHINGTON -- Burlington Northern and Santa Fe Railway Co. will pay $2.2 million to 36 employees the railroad sought to genetically test in secret, settling the first federal challenge involving such testing and privacy.

The Fort Worth, Texas-based railroad was accused in February 2001 of violating the Americans with Disabilities Act by testing or attempting to genetically test workers without their knowledge after they had submitted work-related injury claims.

But the Equal Employment Opportunity Commission said in Wednesday's announcement of the mediated settlement of that lawsuit that it did not find any evidence the railroad used the tests to screen workers. The commission did say that collecting workers' DNA "may constitute a violation" of the disabilities law.

The railroad denies that it violated the law or engaged in discrimination. "We continue to believe that none of the company's actions were contrary to the law," said Matthew K. Rose, chairman, president and chief executive of the company.

The railroad agreed not use genetic tests in required medical exams of its employees. It will provide more ADA training to its medical and claims employees, and will have management review the company's major medical policies and practices. Test samples will be returned to workers and medical records will be purged of any reference to genetic tests.

It is not clear how often genetic information is collected, obtained or used by employers.

Nearly two-thirds of major U.S. companies require medical examinations of new hires, according to a 2001 survey by the American Management Association. Fourteen percent conduct tests for susceptibility to workplace hazards, 3 percent for breast and colon cancer and 1 percent for sickle cell anemia, while 20 percent collect information about family medical history.

In 28 states, there are laws limiting the ability of employers to collect, use or disclose genetic information, according to the National Conference of State Legislatures. But the scope and content vary considerably. No federal law exists.

An advocacy group that supports people with genetic disorders expressed disappointment that the railroad case had not gone to trial. The settlement still requires federal court approval.

"I wish there had been a court decision because this is going to be an issue down the road, more and more," said Nancye Buelow, a board member of Washington-based Genetic Alliance. "We need some concrete laws and some concrete court decisions so that more people will come forward."

EEOC Chairwoman Cari M. Dominguez said that without the railroad's cooperation, the case "could have taken years to litigate."

The case began when a track maintenance worker in Nebraska, Gary Avary, filed a work-related injury complaint.

The railroad told him he was required 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.

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, a strain injury to the wrist, hand and arm thought to be caused by repetitive motion, between March 2000 and February 2001. The company contacted 36 of those workers, telling them they had to have a medical exam. Blood was drawn from 22 of the workers and testing was completed on 15 at the time the EEOC sued.

The tests were intended to determine which workers might be genetically inclined to develop carpal-tunnel syndrome, with the hope of denying them workers' compensation benefits.

The railroad agreed to stop the testing in April 2001 after the EEOC suit, but the agency continued to investigate workers' claims. The workers were not told the nature of the tests, nor was their permission obtained, and at least one worker alleged that refusal led to termination threats.

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On the Net:

Equal Employment Opportunity Commission: http://www.eeoc.gov/

Burlington Northern Santa Fe: http://www.bnsf.com/