It was the first time that the EEOC had challenged genetic testing.
EEOC alleged that employees were not told of the genetic test, or asked to consent to it, and that at least one individual who had refused to provide a blood sample because he suspected it would be used for genetic testing has been threatened with imminent discharge.
ADA conflictEEOC Commissioner Paul Steven Miller explained, "Employers may only require employees to submit to any medical examination if those examinations are job related and consistent with business necessity. Any test which purports to predict future disabilities, whether or not it is accurate, is unlikely to be relevant to the employee's present ability to perform his or her job."
Days after the EEOC action, the railroad voluntarily agreed to suspend what it called a pilot testing program. The company said its executive team reviewed the history of its pilot DNA testing program for carpal tunnel syndrome, which was initiated in March, 2000, and decided to stop including in any employee testing a genetic DNA test for Chromosome 17 deletion, which is claimed to predict some forms of carpal tunnel syndrome.
The railroad said that the EEOC court action had erroneously asserted that the DNA test had been broadly requested of employees. The test had been requested only in response to a limited number of carpal tunnel injury claims, and the DNA portion of the medical examination was not being used to determine the employee's present ability to perform his or her job, according to the railroad.
About 125 BNSF employees filed claims since March, 2000, for carpal tunnel syndrome related injuries, according to the railroad. About 20 BNSF employees completed a medical examination to support their claims. Several employees refused to take the blood test, but none received any disciplinary action, the company stated. All of the employees who filed these claims are active members of BNSF's 40,000-person workforce, according to the company.
As part of the rail industry's safety rules and negotiated union agreements, BNSF explained that it may require its employees to take a medical examination as a method to evaluate a range of employee injury claims. In March, 2000, BNSF included in this examination a genetic factor only for some employees who claim work-related carpal tunnel syndrome.
The program came to light when Burlington Northern workers from Nebraska, North Dakota and Minnesota complained to their union. The union, the Brotherhood of Maintenance of Way, said the testing was conducted in secret.
Bans and lawsuitsMore than 20 states ban the use of genetic screening for making employment-related decisions, and the American Management Association reported last year that only about seven of 2,100 companies surveyed conduct genetic testing.
In 1999, Lawrence Berkeley Laboratory agreed to pay $2.2 million in a settlement with thousands of employees who said their blood was secretly and illegally tested for sexual diseases, genetic conditions and pregnancy. The lab said the tests were intended to identify health problems so they could be treated.