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Railroad Settles Suit Over Genetic Testing Workplace: BNSF to pay $2.2million to 36 workers subjected to secret program.


Thirty-six railroad workers will share in a $2.2-million settlement announced Wednesday of a landmark lawsuit that accused Burlington Northern Santa Fe Corp. of violating the Americans with Disabilities Act by secretly conducting genetic tests to investigate workers' compensation claims.

Filed in February 2001, the suit targeted the first known case of on-the-job genetic testing. In the claims, the rail workers blamed their carpal tunnel syndrome, the most-frequently reported repetitive stress injury, on the jarring vibrations of the heavy power tools that they use to repair and replace track.

Without the knowledge or consent of 20 of the workers, the EEOC had alleged, the railroad submitted vials of their blood for tests for a genetic marker that the railroad believed might show the carpal tunnel syndrome was a preexisting--not job-related--condition. Genetics experts said the test results could not be interpreted to rule repetitive stress in or out as a cause of the painful wrist condition.

When workers learned of the genetic testing, they complained to the EEOC, which filed suit. The railroad agreed in April 2001 to halt the testing during the EEOC's investigation and later agreed to mediation, which led to the settlement.

BNSF Chairman Matthew K. Rose said in a statement that "we continue to believe none of the company's actions were contrary to the law."

In addition to making the settlement payment, the Fort Worth-based railroad agreed to refrain from further genetic testing, give employees access to their medical records and update the training of its medical personnel regarding the ADA.

"We are very, very excited," said Janice Avary, a nurse and Nebraska railroad worker's wife, whose suspicions led to her discovery of the secret testing. "This is going to set an example not only for this corporation but for any corporation around the country that even thinks of using genetics for employment or insurance purposes."

Though the settlement doesn't set a legal precedent, "it stands as a lesson for employers" that the agency will enforce the ADA provision that bars employers from conducting medical tests that are not job-related or required by business necessity, said Laurie Vasichek, the EEOC attorney in Minneapolis who handled the case.

Employee advocates say the case would not improve protections against job discrimination based on genetic factors, which is not explicitly banned under federal law or in many states.

"Unfortunately, while this may be a wake-up call to employers generally, there is nothing that would legally bind a subsequent employer," said Jeremy Gruber, legal director for the National Workrights Institute in Princeton, N.J. "This settlement will not prevent genetic discrimination from occurring in the future."

Avary, who became an advocate for such protections, has testified before Congress, which is considering two bills that would ban the collection of genetic information, including testing, for any reason, as well as discrimination based on genetics.

She said she does not know what her husband Gary's share of the settlement money will be. "We never asked," she said. "It was never a money issue for us. It was genetic privacy."

Vasichek said the payments would range from $5,900 to $75,000, depending, in part, on whether a worker's blood was tested or not.

Copyright 2002 Los Angeles Times

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