Case Study
Burlington Northern Santa Fe and Genetic Testing
Oren L. Jones
Trident University International
ETH 501

Introduction The topic of genetic testing is a delicate issue that today’s employers must face. There basically two distinct routes employers can travel in regards to genetically screen their current and prospective employees. Employers can choose to utilize increasingly precise, efficient, and inexpensive genetic testing in order to determine the genetic traits, and identify any deficiencies within their workforce. This particular avenue may potentially expose employers to numerous liability and litigation issues. Specifically, the Fourth Amendment and the Americans with Disabilities Act were created with the purpose of protecting medical and genetic privacy. Additionally, employers may choose to overlook the practice of genetic screening all together. However, this outcome could possibly lead to a number of employer liability concerns such as; increased health insurance costs, violations of the Occupational Safety and Health Administration, etc. With the rapid development of genetic technology on the rise, employers today are faced with an overwhelming dilemma.
BNSF Subjects Employees to Genetic Test In April 2002, railroad giant Burlington Northern Santa Fe Railway (BNSF) found itself in a perilous legal confrontation with the Equal Employment Opportunity Commission (EEOC). Burlington officials had admitted to subjecting their employees to genetics tests. BNSF’s practice of genetic screening proved to be an extremely costly mistake. On May, 6, 2002 Burlington Northern finally settled its lawsuit with the EEOC. Burlington walked away owing $2.2 million to thirty-six employees were subjected to genetic tests by their employer. Thirty-six Burlington employees walked away with $2.2 million. This case was the first of its kind, as biological and genetic screening procedures in the workplace until that moment were strictly theoretical concepts. At that particular time there was no legislation in place deeming BNSF’s method of genetic testing as an illegal practice. "Burlington admitted no wrongdoing and there has been no determination that what it did was illegal. What it did according to Burlington was fairly benign," said Hunter Hughes, mediator of the settlement proceedings. (1) There are many speculations as to the reasoning behind a pre-trial settlement on behalf of Burlington Northern. The EEOC had never faced as challenging a case as this one regarding the genetic testing of several employees. Most experts feel that the railway company’s downfall was admitting to conducting “undisclosed” genetic screening in the workplace. Burlington Northern began testing after a number of their employees filed complaints due to carpal tunnel syndrome caused by work related activities. It is obvious that in this case that Burlington was merely reacting to employee grievances; which in most minds is much better than the alternative. The company could have faced accusations of employer negligence, failure to comply with federal safety regulations, and so on. (3) Policies Protecting Genetic Privacy In regards to the BNSF employees there are numerous options available to an employee who feels that their right to privacy may have possibly been violated due to the use of genetic testing in the workplace, which include: • The Americans with Disabilities Act (ADA) • The Fourth Amendment (provision regarding illegal search and seizure) • Title VII of the Civil Rights Act of 1964

In this case the EEOC ascertained that the Burlington Northern workers would be covered under its definition of individuals suffering from impairment. This clause is defined in section C of the Americans with Disabilities Act. However, this clause explicitly covers only individuals with documented and proven, qualifying disabilities. Many of BNSF’s legal advisors felt that their workers who may have been merely predisposed to genetic disorders (in this case carpal tunnel syndrome was the disorder in question) should not fall within the scope of the ADA's definition of a disability. Simply because, these employees did not display any symptoms that would considerably hinder the ability to complete work related tasks. (4) However, the EEOC believes that the ADA was created to protect not only those persons who are presently disabled, but it includes all employees with the capacity to become disabled in the future (especially individuals with genetic predispositions). Under Title VII of the Civil Rights Act of 1964, the unauthorized retention of sensitive medical information on the basis of race or sex constitutes an "adverse effect" or injury. Genetic testing becomes a straightforward violation of Title VII when employees or applicants are singled out based on factors such as race or sex. (5) The railway company did not violate Title VII because the railway chose only those employees at risk for carpal tunnel syndrome based on work environment conditions. (1) In his paper on EEOC v. Burlington Northern Santa Fe Railway, Duke Law student Geoffrey N. McMillan states, “Title VII could be construed as a preventative measure that could be used to support the existence of genetic testing in the workplace.” (6) Companies could potentially choose subjects for screening according to non-biased or non-discriminatory characteristics, as Burlington did in their case. State policies concerning such statutes are reasonably clear and concise. There are very few discrepancies between various states and their stance on genetic screening in the workplace. Across the nation most legislators agree that there is air of uncertainty in regards to genetic testing. The entire process is still a relatively new technology and the results of using this technology can prove to be imprecise in some aspects. Throughout his paper McMillan continues express his opinion on the subject of genetic screening in the workplace. He expresses his concerns about the creation of a “genetic underclass”, which would eventually be defined by today’s lawmakers and politicians. There is a strong belief that when employees place themselves or their co-workers at risk, diagnostic genetic screening should not only be a necessity, but it would also be justified under these particular circumstances. (6)

Utilitarian and Deontological Considerations The utilitarian and deontological consideration in this matter can be examined from both the employer and employee perspectives. As far as the employee is concerned the least stressful avenue of approach would possibly be the complete removal of genetic testing in the workplace (that being the actual outcome in this case). This scenario protects the privacy of each employee within BNSF workforce. In turn, this allows individuals who may have been genetically predisposed to ailments such as carpal tunnel to collect medical disability payments under the clause of work related injuries. As the laborers tend to be the driving force behind large companies like Burlington Northern Santa Fe Railway, keeping them content with their work environment is a necessity. On the other hand there are many positive and negative effects for the employer with this course of action. Foregoing genetic screening would potentially leave the employer open to litigation in regards to employer negligence in respect to third party on-lookers. Also, there are a number of standards set forth Occupational Safety and Health Administration that could be violated in this respect. However, on a positive note for the employer disability payouts are considerably smaller, than settlement agreements in court. To caveat on the earlier statement about content employees; it has been proven that employees tend to have long tenures at their job when they are happy with their particular work environment. Employers would save money in this instance, by not using monetary assets to train new employees. When viewing this issue from a deontological perspective I feel the right decision for the employer and employee would include a clause in the employee contract that would boldly underline the terms of genetic screening as they pertain to worker’s compensation. In this case the EEOC was able to leverage BNSF in to settling due to “undisclosed” genetic testing. A pre-employment contract as described above would prevent such measures from occurring. On the downside employees would willingly relinquish some of their right to workplace privacy, but this happens with federal jobs all the time (especially the military).

Conclusion In conclusion BNSF readily agreed to an unfavorable settlement pre-trial. In my opinion, this was my biggest concern (BNSF’s biggest mistake). At the time there seemed to be a lack of federal prohibition in regards to the application of genetic testing in the workplace. Furthermore, it was proven that Burlington Northern had not used the genetic information to discriminate against any of their employees based on the test results. Clearly there was no ADA violation the part of BNSF. I feel Burlington Northern settled to avoid the publicity normally associated with full-blown trials of this magnitude.

REFERENCE:

1. Norris, C. The Genetic Discrimination Act of 2008. http://heinonline.org/HOL/LandingPage? collection=journals&handle=hein.journals. Retrieved August 17, 2011. 2. Burlington Northern Santa Fe http://en.wikipedia.org/wiki/BNSF. August 18, 2011. 3. BNSF Settles Suit Against Genetic Bias http://www.eeoc.gov/eeoc/newsroom/release/5-8-02.cfm Retrieved August 20, 2011 4. The Americans With Disabilities Act http://www.ada.gov/ Retrieved August 19, 2011 5. Civil Rights Act of 1964. http://www.eeoc.gov/laws/statutes/titlevii.cfm Retrieved August 20, 2011. 6. McMillan, G. BNSF v. EEOC: What Are the Benefits of Genetic Exceptionalism. http://heinonline.org/HOL/LandingPage?collection=journals Retrieved August 21, 2011.