Railroad to Pay $2.2 Million in DNA Test Case
Illegally Testing Workers for Genetic Defects 

PETER SZEKELY / Reuters 8may02

WASHINGTON -- Burlington Northern Santa Fe Corp. agreed on Wednesday to pay $2.2 million to settle charges of illegally testing workers for genetic defects in the government's first case against workplace DNA discrimination.

While the company, one of the country's biggest railroads, denies it violated the law, the case was a milestone in the brave new world of medical privacy battles and DNA-based job discrimination.

The U.S. Equal Employment Opportunity Commission, or EEOC, had charged Burlington Northern with genetically testing or seeking to test 36 employees -- mostly track workers who said they had job-related carpal tunnel syndrome -- without their knowledge as part of a comprehensive diagnostic exam.

The EEOC also charged that employees who refused to take the test faced possible discipline.

The commission said the tests violated the 1990 Americans with Disabilities Act, or ADA, by subjecting the unknowing employees to DNA analyzes of whether they were genetically predisposed to carpal tunnel syndrome, a painful hand and wrist condition often caused by repetitive motion.

"While the EEOC did not find that (Burlington Northern) 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," EEOC Commissioner Paul Steven Miller said in a statement.

The ADA bars employers from requiring medical exams unless they are needed to determine whether a worker can perform a particular job or poses a threat to anyone, EEOC attorney Laurie Vasichek said in an interview.

President Bush (news - web sites) used one of his weekly radio addresses last June to declare his support for legislation forbidding employers and insurance companies from denying jobs or health coverage to people based on their genetic makeup.

BILLS PENDING IN CONGRESS

Although bills to ban DNA discrimination on the job and in health insurance are pending in Congress, there has been little or no movement on them in the past year.

Senate Majority Leader Tom Daschle, who sponsored one of the bills to ban genetic discrimination, said the Burlington Northern-EEOC dispute underscores the need for a nationwide law to safeguard workers' genetic information.

"The current patchwork of state laws concerning genetic information is confusing, inconsistent and inadequate," the South Dakota Democrat said in a statement.

Burlington Northern, which has 39,000 employees, had said it started the genetic testing in March 2000 when it gave medical examinations to workers who filed claims of work-related carpal tunnel syndrome.

The company, one of the few U.S. employers to admit to using genetic tests, voluntarily suspended its program in February 2001, a few days after the EEOC sought a court order against the company. In an interim settlement with the EEOC last April, the company agreed not to resume the testing.

After the EEOC determined last July that Burlington Northern had violated the ADA, attorneys for both sides began negotiating the settlement with an outside mediator.

Both sides said they were satisfied with the settlement, which is subject to court approval.

"Without the willingness of (Burlington Northern) to mediate and bring prompt closure, this case could have taken years to litigate," said EEOC Chair Cari Dominguez.

"We think that the mediation process worked well and achieved a reasonable conclusion of this matter, although we continue to believe that none of the company's actions were contrary to the law," said Burlington Northern Chief Executive Matthew Rose.

The $2.2 million is expected to be paid within 90 days and will be split among the 36 workers according to how much of the testing process they endured, Vasichek said.