Physical Privacy on February 9th,

Physical Privacy

On February 9th, 2001 the Equal Employment Opportunity Commission filed a lawsuit against the Burlington Northern and Santa Fe Railway Company stating the company had conducted genetic testing on it's employees without consent, one employee was threatened by termination for failing to submit a sample blood test. The Equal Employment Opportunity Commission states these tests were not job related therefore they violated the Americans with Disabilities Act. (The U.S. Equal Employment Opportunity Commission Newsletter)

The case began when a 45-year-old track-maintenance worker from Nebraska, Gary Avary, 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. (Sarah Schafer, Washington Post)

The tests had started the year prior when employees were filing claims against the company stating they had Carpal Tunnel Syndrome, a wrist condition caused by repetitive hand movements that causes pain and numbness in the hand or wrist.. According to Burlington Northern and Santa Fe Railway Company the genetic tests were intended to predict a pre-disposition to carpal-tunnel syndrome. The test however, was not a test for Carpal Tunnel Syndrome but for a disorder called Hereditary Neuropathy with liability to Pressure Palsy (HNPP). (Kristen Philipkoski, Wired News) This disorder has Carpal Tunnel like symptoms but the gene does not predict Carpal Tunnel. "The preponderance of carpal-tunnel symptoms actually does not have a genetic basis," said Phillip Chance, chief of genetics and development. (University of Washington) Chance discovered the gene that causes HNPP while working at the University of Utah. The university later licensed the discovery to Athena Diagnostics which was the company that conducted the testing for Burlington Northern and Santa Fe Railway Company. A spokesman for the Burlington Northern and Santa Fe Railway Company, Richard Russack, stated "The motivation was to determine whether some people had a predisposition to carpal-tunnel or whether something was happening on their job that perhaps we hadn't taken into account, that we could fix so they wouldn't be susceptible." (Kristen Philipkoski, Wired News)

However the lead counsel for the employees union, Brotherhood of Maintenance of Way, Harry Zanville states "This was about power and drawing lines in the sand, and whether employers secretly, or by coercion, can force employees to divulge their genetic secrets," "The railroad was trying to avoid paying compensatory damages to people injured with carpal-tunnel," (Kristen Philipkoski, Wired News)

The Burlington Northern and Santa Fe Railway Company agreed to settle with the Employment Opportunity Commission. In the agreement Burlington Northern and Santa Fe Railway Company will: 1. not directly or indirectly require its employees to submit blood for genetic tests 2. not analyze any blood previously obtained 3. not evaluate, analyze or consider any gene test analysis previously performed on any of its employees 4. shall not retaliate or threaten to take any adverse action against any person who opposed the genetic testing or who participated in EEOC's proceedings.. (The U.S. Equal Employment Opportunity Commission Newsletter) In addtion, Burlington Northern and Santa Fe Railway Company paid out over $2 million to the employees and for legal fees.

Burlington Northern and Santa Fe Railway Company spokesman stated, "The settlement is consistent with the practice we've been following," said Richard Russack. He also states that the companies apologized to it's employees for running the tests and they stopped all testing when to suit was filed as they were ordered.

Many in the political and medical filed and the Equal Employment Opportunity Commission themselves feel this is a landmark settlement which will halt any future discriminations. "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. (Washington Post) "This landmark settlement provides important new protection against the emerging threat of genetic discrimination," Senator Edward Kennedy (Washington Post) "The Commission will continue to respond aggressively to any evidence that employers are asking for or using genetic tests in a manner that violates the ADA," said EEOC Commissioner Paul Steven Miller (The U.S. Equal Employment Opportunity Commission Newsletter)

In February 2001, 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. 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. (Washington Post)

As for my opinion, I do believe that the suit was justified. I believe that the Burlington Northern and Santa Fe Railway Company was looking for a reason to stop compensation of their employees who were diagnosed with Carpal Tunnel Syndrome. Their employees are constantly using their and hand and have a high chance of getting injuries. Burlington Northern and Santa Fe Railway Company knew they were in the wrong by not informing the employees of the tests and obtaining permission. Employers in general do not have the right to obtain DNA from employees or future employees to base on employment what the employee may have or will have in future of health issues.