EEOC, Burlington Northern Settle Genetic Testing Dispute; Company to Pay Employees $2.2M

As part of a settlement with the Equal Employment Opportunity Commission, Burlington Northern & Santa Fe Railway Co. yesterday agreed to pay $2.2 million to 36 employees whom the company attempted to genetically test in secret, the Wall Street Journal reports (Chen, Wall Street Journal, 5/9). The settlement stems from a lawsuit filed in February 2001 by the EEOC that sought to stop the company from conducting genetic tests on blood taken from employees who had filed claims for work-related injuries resulting from carpal tunnel syndrome. Burlington Northern used the tests to identify those workers who could be genetically predisposed to some forms of the syndrome (California Healthline, 6/8/01). Although the EEOC did not find any evidence that the company used the tests to screen workers, the commission said that simply collecting workers' DNA "may constitute a violation" of the Americans with Disabilities Act. As part of the settlement, the railroad agreed not to use genetic tests during required medical exams. Samples already collected will be returned to workers, and any record of the tests will be removed from employees' medical records. In addition, the railroad -- although it denies that it violated the law -- will provide additional training on the ADA for its medical and claims employees (Strope, AP/Los Angeles Times, 5/9). The U.S. District Court for the Eastern District of Wisconsin must approve the settlement.

The EEOC said it will use the settlement "as a template for reaching similar protections of genetic privacy rights all across the country." But employer groups and health insurers say "worries about genetic privacy are overblown." They say that the Burlington Northern case is isolated and discrimination based on genetic testing has not been a problem (Schmickle, Minneapolis Star-Tribune, 5/9). Currently, 28 states have laws limiting employers' use of genetic information for hiring purposes, but the laws vary in scope. There is no federal law on employers' use of genetic information (Los Angeles Times, 5/9). Senate Majority Leader Tom Daschle (D-S.D.) has been pushing a bill banning the practice, but it has faced opposition from Republicans and employer groups. Sens. Olympia Snowe (R-Maine), Bill Frist (R-Tenn.) and Jim Jeffords (I-Vt.) have recently introduced another version of the legislation (Wall Street Journal, 5/9).