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Jewish World Review April 24, 2001 / 2 Iyar, 5761

Sharon Schmickle

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Consumer Reports


Railroad faces new round of probes into genetic testing

http://www.jewishworldreview.com -- Burlington Northern and Santa Fe Railway Co. faces another round of investigations and possible charges in connection with genetic testing that the company performed on employees starting in March 2000, according to an attorney for the U.S. Equal Employment Opportunity Commission.

A settlement this week between the Fort Worth, Texas-based railroad and the EEOC bars Burlington Northern from testing its employees' DNA and from retaliating against workers who refused to be tested or complained to the EEOC about the tests.

The agreement - to be filed in U.S. District Court in Sioux City, Iowa - also bars the railroad from destroying evidence in the case.

Now that the workers are protected by the court-enforced agreement, the EEOC will investigate their complaints that the railroad violated the Americans With Disabilities Act, said Laurie Vasichek, an attorney with the EEOC's Minneapolis office.

Burlington Northern denies in the agreement that it violated the act.

"What this agreement does is stop the genetic testing and allow us to do our investigation without the threat that the charging parties are facing some irreparable harm," Vasichek said.

If the EEOC finds violations of the act, it could seek damages of up to $300,000 per employee. The affected workers, including three Minnesotans, are preparing their own suits under different state and federal laws, attorneys said Wednesday. Among other complaints, the employees say the railroad violated their privacy and didn't tell them it was testing their genes.

Burlington Northern issued a statement Wednesday saying that it had requested genetic tests for about 35 employees who had claimed their carpal tunnel injuries were work-related. About 20 of the workers submitted to the test, the railroad said.

After the EEOC filed suit Feb. 9, Burlington Northern suspended the testing and apologized to employees.

The tests were conducted as part of a broad medical examination, the company said Wednesday. A study had suggested there may be a genetic factor in some cases of carpal tunnel, a painful disorder of the hands and wrists.

This is the first genetic testing case that the EEOC has brought against an employer under the Americans With Disabilities Act. The act doesn't say employers can't conduct medical tests on their workers. But it does limit such tests to certain conditions - for example, determining whether an employee is able to perform essential functions of a job.

The EEOC argued in court documents that Burlington Northern's testing doesn't meet that condition because the genetic test wouldn't measure a worker's current ability to do a job but instead might predict a potential physical problem. The agency asserts that a company would be discriminating against an employee by acting on the basis of genes that might cause a problem in the future.

Sharon Schmickle writes for the Minneapolis-St. Paul Star Tribune. Comment by clicking here.

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