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5/8/2002



Rail News: Rail Industry Trends

BNSF, EEOC settle year-old genetic-testing lawsuit


Burlington Northern Santa Fe and U.S. Equal Employment Opportunity Commission (EEOC) May 8 announced they'd reached a $2.2 million mediated settlement regarding EEOC's lawsuit, which alleged that BNSF violated Americans with Disabilities Act (ADA) by genetically testing or seeking to test 36 employees for a carpal tunnel syndrome-disposition without their knowledge or consent.
Under settlement terms, BNSF agreed not to use genetic tests in the future as part of required employee medical examinations, to provide enhanced ADA training to medical and claims personnel, and to have senior management review all significant medical policies and practices.
BNSF also agreed to pay up to $2.2 million to employees for claims related to the genetic tests as part of a larger settlement, which included
partial payments for claims filed under Federal Employers' Liability Act (which regulates a railroad employer's liability to its employees for on-duty injuries).
The genetic test was part of a comprehensive diagnostic medical
examination BNSF in early 2001 required of certain employees who filed claims or internal reports of work-related carpal tunnel syndrome against the railroad.
EEOC first learned about the tests when several employees filed charges alleging that BNSF required them to submit to a medical examination
that included a blood test for a specific genetic marker, and that certain employees faced possible discipline for refusing to submit to examinations.
In response to the charges, EEOC in February 2001 sought a preliminary injunction to prohibit any further testing until such time as the EEOC completed an investigation. The parties in April 2001 amicably resolved the preliminary injunction.
"While EEOC did not find that BNSF had used genetic tests to screen out employees, employers should be aware of EEOC's position that the mere gathering of an employee's DNA may constitute a violation of ADA," said EEOC Commissioner Paul Steven Miller in a prepared statement.
Although BNSF officials deny that the railroad violated ADA or engaged in any form of workplace discrimination, officials agreed to attempt to conciliate the charges with EEOC through voluntary mediation.
"At no time did the company use, or intend to use, any genetic test to screen our asymptomatic employees," said Matthew Rose, BNSF chairman, president and chief executive officer. "We are pleased with the Commission's acknowledgment … which should correct any public misimpression about this matter."


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