EEOC Sues Railroad To End Genetic Testing In Work Injury Cases

The Equal Employment Opportunity Commission yesterday filed its first court action challenging genetic testing by an employer, the Burlington Northern Santa Fe Railway Company.

The Commission asked a court to order the railroad to end what it called the company’s nationwide policy of requiring all union members who claim work-related Carpal Tunnel Syndrome to provide blood samples for a DNA test for a condition that may predict some forms of Carpal Tunnel Syndrome.

According to the court papers filed in Federal District Court in Sioux City, Iowa, the railroad’s employees were asked for blood samples but not asked to consent to their use for genetic testing, and at least one individual who refused to provide a sample because he suspected it would be used for genetic testing was threatened with discharge if he did not submit it.

The railroad said that it had not sought blood tests on every worker who filed a claim for Carpal Tunnel Syndrome, and that it had not tested any employees without their consent.

“According to my understanding, there were 125 claims filed for Workers’ Compensation for Carpal Tunnel Syndrome since March 2000, and 18 instances in which we sought genetic testing,” said Richard Russack, a railroad spokesman. “I’m under the impression that all 18 said yes, and were tested. And my understanding is that we have not threatened anybody with disciplinary action, or taken any disciplinary action.”

Mr. Russack said that neither the employment commission nor the union, the Brotherhood of Maintenance of Way Employees, had ever contacted the railroad about the issue or sought mediation, and that the railroad first heard of the genetic testing issue yesterday, from a reporter. The railroad is a unit of the Burlington Northern Santa Fee Corporation which is based in Forth Worth.

One worker named in the court papers, George Avary, contended that a month after he filed a claim for work-related Carpal Tunnel Syndrome last October, the railroad told him that he had to provide a blood sample. The papers said the he refused to do so, and that in January, the railroad told him he would be subject to discipline for his refusal.

Two other workers named in the court papers said that they had allowed blood samples to be taken, but that they did not know the samples would be used for genetic testing. The union has also brought charges on behalf of all its members.

Carpal Tunnel Syndrome, which can cause pain and numbness in the hands and arms, is usually caused by repetitive motion, but in some cases may have a genetic component.

” The affidavits we have tell of workers threatened with losing their jobs because of genetic testing,” said Ida L. Castro, the chairwoman of the commission.

“Individuals, without their knowledge or consent, were being subjected to genetic testing that was not job related, not necessary,” Ms. Castro said. “The only conceivable explanation is that the railroad wanted to use the genetic testing to argue that they would have gotten Carpal Tunnel Syndrome anyway, so they shouldn’t get Workers’ Compensation.” The Commission acted quickly, Ms. Castro said, “to protect workers confronted with such an egregious violation of the Americans with Disabilities Act.”

Just two weeks ago, Paul Miller, one of the commissioners, sent out a letter saying that the commissions’s policy was that genetic discrimination in the workplace violated the Americans with Disabilities Act, and that the Commission would investigate and prosecute violations.”

“Recent studies indicated that an increasing number of individuals with genetically related illnesses and conditions believe that they have been subjected to discrimination in the workplace based on their genetic information,” the Jan 24 letter said. “However, while research suggests that employers have unlawfully used such information, few charges of genetic discrimination have been filed. The EEOC wants to ensure that individuals with genetically related conditions are aware of their rights under the law.”

Yesterday, however, Ms. Castro said the letter had nothing to do with the railroad case, which she said was brought to the Commission’s attention by the union. The current commissioners are holdovers from the previous administration.

“The Commission takes the position that basing employment decisions on genetic testing violates the ADA,” Commissioner Miller said yesterday in the agency’s news release.” In particular, 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.”

But legally, the question of whether the federal disabilities law covers workers with a diagnosed genetic condition, but no symptoms, is still murky. And in several recent opinions not involving genetics, the United State Supreme Court has taken a narrow view of who is covered by the Americans with Disabilities Act.

About half the states have enacted laws against employment discrimination on the basis of genetic information and last year, President Bill Clinton signed an executive order prohibiting the federal government from using such information in employment decisions. Efforts to pass federal genetic protection legislation, however, have failed.

Just how much attention the problem of genetic discrimination warrants is open to debate.

“I can understand people who say we should guard against future problems, but there is no evidence that there’s a problem of any magnitude now,” said Dr. Phil Reilly, a clinical geneticist and lawyer who now heads Interleukin Genetics Inc., a biotechnology company in Waltham, Mass.

“For all the debate about genetic discrimination in the workplace over the last decade there have been virtually no cases involving real people,” Dr. Reilly said. “My concern is that well-meaning people are making too big a deal of this, alienating people from the good in genetic tests and conveying concern that you should be scared your employers will use them against you.”