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."
