“Inappropriate genetic testing can threaten individual autonomy, privacy, and confidentiality and lead to various types of genetic stigmatization and discrimination without any commensurate benefit for the individual tested,” (Brandt; Rauf, 2004). When Burlington Northern Santa Fe Railway (BNSF) tested their employees without the employees knowing about it, the Equal Employment Opportunity Commission (EEOC) stepped in and cited that BNSF violated the employee’s equal rights through discrimination and the employee’s rights of privacy. These actions “raise serious concerns that such testing could pose a significant threat to workers' privacy, autonomy, and dignity. Thus, defining the ethically, legally, and socially appropriate and inappropriate uses of genetic testing in the workplace,” (DEHS, 2001) presents a major breach in a workers legal right to privacy.
One hundred and twenty-five BNSF employees filed on-the-job injury claims citing carpal tunnel syndrome (CTS) for “years of repetitive activity such as wielding a wrench or operating a jackhammer,” (Lehrer, 2001; UNK, 2001). While investigating these claims, BNSF medical doctor required further testing of 20 employees (UNK, 2001). The medical company pulled blood for genetic testing without telling the BNSF employees what kind of test that they were performing, (Mahanna, 2001; Schafer, 2001; BNSF, 2002; Lehrer, 2001; Lewin, 2002). One employee refused to submit to the tests and BNSF threatened to terminate his job (Lewin; Lomax 2001; Schulte P. A.; Brandt; Rauf 2004). The EEOC filed suit on behalf of the BNSF employees stating the undisclosed genetic testing was illegal. Within a few days of the EEOC charges, BNSF agreed to “stop requiring genetic testing of employees who file claims for a wrist condition called,” (UNK, 2001; Hechler, 2002) CTS. BNSF claimed the medical community was looking for “a gene called PMP 22 (or Chromosome 17 deletion), which is the cause of a condition called Hereditary Neuropathy with liability to Pressure Palsies (HNPP),” (Mahanna, 2001). Studies suggest, “A person with that trait is more likely to develop some forms of,” (UNK, 2001) CTS; however, HNPP is very rare and doctors discover the disease when the patients are in their early childhood not when the patients are older adults as is BNSF’s case (Lehrer, 2001). Thirty-six employees from BNSF won a $2.2 million settlement when the EEOC cited BNSF in violation of the Americans with Disabilities Act of 1990 (ADA) for “genetically testing or seeking to … without their knowledge or consent,” (BNSF, 2002). BNSF “conducted the tests to avoid financial responsibility for treating or compensating the workers' carpal tunnel conditions,” (Mahanna, 2001; Lehrer, 2001). The genetic testing were to conclude if their symptoms were genetic (predisposed to the condition) or work-related (Piller; 2002; BNSF 1, 2001). “If a genetic link were found, the railroad then could use the evidence to deny paying medical and lost-income benefits,” (Gianaro, 2002).
Was BNSF doing what hey felt was right in the matters of taking care of their employees? “Employers have a duty of good faith and due care toward their employees, most notably in the prevention of unnecessary work-related injuries. An employer in the modern age of technology and genetic savvy may be found liable for manifestations of genetic conditions of which it should have been aware. Under the tort theories of negligent hiring, retention, and entrustment, employers are held directly liable for injuries caused by the acts of their employees, whether within or outside the scope of their employment,” (French 4; 2002). Besides BNSF trying to establish a link to CTS so they would not have to pay for causing their disability, BNSF felt that “negligent retention is relevant in that the railway had been put on notice of its employees’ questionable CTS affliction at the time the employees filed complaints. A failure to fully investigate such claims would have rendered the company vulnerable to claims of negligent retention,” (French, 2001). “Additionally, without a full disclosure of the complainant’s CTS condition, Burlington may have been liable to the employees themselves for injuries caused by job-related work,” (French, 10). BNSF officials understood that the “ADA permits employers to conduct medical examinations of current employees if they are ‘job-related and consistent with business necessity’,” (French 2; 2002) and a “tort claim may go directly to the quality and thoroughness of an employer’s … investigation into the health,” (French 6; 2002) of their employees. BNSF officials sent a letter to a spokesperson of the Public Broadcast Service (PBS) stating, “The company was first obligated by federal law to determine whether the injuries were work-related,” (Lehrer, 2001; BNSF 1, 2001). BNSF “reacted out of business necessity, employing its right to use all information necessary to make an important work-related safety evaluation,” (French 3; 2002).
With these above claims, what did BNSF do wrong? “The employees weren’t told about the genetic screening during the medical exams,” (Gianaro, 2002; Alivizatos; Whittaker, 2003). BNSF violated their employees “physical privacy (the degree to which one is physically inaccessible to others),” (Simms; 1994; Altman, 1975; Conklin, 1976; Chaikin and Derlega, 1977; Warren and Laslett, 1977). In a situation in 1968, a state “Court ruled one's personal right to the ‘personal information their body fluid contains’,” (Simms; 1994; Westin, 1968). However, BNSF felt that because they “tested for a specific condition that both affects and is affected by the workers’ daily employment tasks. Based on the Norman-Bloodsaw language, one could tentatively conclude that the employees’ expectations of privacy were lowered because the condition subject to testing had a connection to their work,” (French; 2002). Where BNSF went wrong with this argument was the company tried to gather personal information without the person knowing; which is much the same as a company commissioning a thief to break into a competitor’s office and steal plans of their products and use that information for their benefit. Another thing that leads one to believe that BNSF was trying to hide something was, “Of roughly 125 such reports of work-related carpal tunnel syndrome that the company says it received since March, 2000, none were reported to the government,” (Lehrer, 2001) which is required by law.
What does the future hold for genetic testing in the workplace? “According to a 1996 poll of members of families with perceived genetic risk carried out by Georgetown University, 13% had been dismissed from their jobs because of this perceived risk. A 1998 survey by the American Management Association suggested that 10% of employers routinely test employees for genetic predispositions to diseases and that this figure is growing,” (Alivizatos; Whittaker, 2003). Many companies are worried about employee liability in the work they perform; therefore, it is in the best interest for a company to test their employees for their safety in the workplace. “On the other hand, in some instances employees may come to expect that employers will perform genetic tests for their protection from workplace hazards, arguably making the employer legally liable if it fails to conduct appropriate genetic testing,” (Marchant, 2000; Brandt; Rauf 2004). “In fact, Dow Chemical Company has recently been sued by the widow of a deceased employee for failure to include the employee in the aforementioned cytogenetic testing program, which might have detected early biological indications of his development of leukemia from his workplace exposure to benzene,” (Olafson, 2000; Brandt; Rauf 2004). “Although the Dow program predated these results, the case raises the concern that employers, motivated by fears of legal liability, may well be encouraged to do genetic testing in cases in which the utility for workers' health has not been well established. It also underlines the critical importance that testing can have for workers' health in appropriate cases,” (Brandt; Rauf 2004). “Particularly intriguing in light of the Dow experience noted above is that three respondents noted that their rationale for testing was based on potential legal consequences of failing to test,” (Brandt; Rauf 2004). “According to the National Society of Genetic Counselors, far fewer Americans are opting to take genetic tests than had originally been expected. Many people who would otherwise take a genetic test are deciding against doing so for fear of genetic discrimination,” (NORD, 2002). “There’s no comprehensive federal law that would protect an employee or potential employee in a genetic discrimination case … some argument could be made under the Americans with Disabilities Act, although the Supreme Court’s recent decision in Chevron vs. Echazabal raises more questions and makes legislation all the more necessary,” (Gianaro, 2002). Genetic testing is a two-edge sword and it is in the best interest for corporate America to protect themselves from liability and protect their employees from industrial hazards but not at the expense of the employee’s privacy.
Why was it fair for BNSF to pay a liability for their testing of their employees? “The abuse of genetic information has the potential to destroy individuals' careers and do long-term damage to their and their families' health. We must error on the side of caution and ban all genetic discrimination in health insurance and employment,” (NORD, 2002). “A person has privacy to the extent that others have limited access to information about him, limited access to the intimacies of his life, or limited access to his thoughts or his body,” (Persson; Hansson, 2003; Schoeman, 1984). “Besides (BNSF) failing to meet the minimal scientific basis for a testing program, the program failed minimal ethical, legal, and social standards in neglecting informed consent, failing to provide genetic counseling, and threatening employees with dismissal for failure to comply, “ (Brandt; Rauf 2004). In addition to the violation of the BNSF employees, the information “gathered from genetic tests is not just about individuals - it has implications for all of one's blood relatives as well,” (NWI, 2001). Therefore, under utilitarianism consequences, all employees that work are in danger of losing their privacy. However, if employees consent to testing, then it is the duty of the company to use genetic testing to provide a safe work place. “In 1981, the Bureau of labor statistics reported that occupational illness costs private sector employers 850,000 lost workdays,” (Andre; Velasquez, 1991). Corporations could lower these “occupational illness” and it would benefit both the employee as well as the company; therefore; from a utilitarian point of view, genetic testing is beneficial to all concerned; however, the employees information has to be safeguarded because of their civil and human rights. Therefore, the company incurs a negative right of employee privacy, whereas, both parties gain from genetic test from safety in the work place to a cut in liability and loss of workdays.
BNSF was looking out for their best interests in the liability of payments to the employees that claim damages due to on the job injuries. BNSF should not have gathered the genetic information surreptitiously. For interfering in the employees rights to privacy, BNSF was obligated to make amends; however, with this new technology, it is the duty of BNSF and other corporations to protect their employees from occupational hazards in the workplace.

References

Alivizatos, N. C.; Whittaker, P.; “Ethical Aspects of Genetic Testing in the Workplace” Opinion of the European Group on Ethics in Science and New Technologies to the European Commission; No 18 Final – 28th July 2003

Altman, I.; “The Environment and Social Behavior”; Wadsworth; Belmont, CA; 1975

Andre, C.; Velasquez, M.; “Read My Genes: Genetic Screening in the Workplace” Issues in Ethics; Markkula Center for Applied Ethics; Santa Clara University V. 4, N. 2; Fall 1991

BNSF 1; ”Letter to All Employees from BNSF President and CEO Matt Rose”; BNSF Today; BNSF Railway Company; March 1, 2001; © 2005 BNSF Railway Company

BNSF; “BNSF and EEOC Settle Genetic Testing Case Under Americans with Disabilities Act”; BNSF Headquarters News Release; BNSF Railway Company; Fort Worth, Texas, May 8, 2002

Brandt, P. W.; Rauf, S.; “Genetic Testing in the Workplace: Ethical, Legal, and Social Implications”; Annual Review of Public Health; Palo Alto: 2004, Vol.25 pg. 139; ProQuest ID: 62655862

Chaiken, A.; Derlega V.; “Variables Affecting the Appropriateness of Self-Disclosure”; Journal of Consulting and Clinical Psychology; 42, 588-593; 1974

Conklin, K., “Privacy: Should There be a Right to It!”; Educational Theory; 26, 263-270. 1976

DEHS; “Genetic Testing in the Workplace: Ethical, Legal, and Social Implications”; Annual Review Public Health; 2004; 25:139-53; National Center for Biotechnical Information (NCBI); Department of Environmental Health Sciences, Mailman School of Public Health, Columbia University, New York

Derlega, V.; Grzelak J.; “Appropriateness of Self-Disclosure”, in G. Chelune (ed, Self-Disclosure: Origins, Patterns and Implications of Openness in Interpersonal Relationships Jossey-Bass, San Francisco, CA), pp. 151-177; 1979

French 1; “EEOC v. Burlington Northern Santa Fe Railway Co, No. 02-C-0456 (E.D. Wis. 2002)”; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

French 10; “Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992)”; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

French 2; “42 U.S.C. 12112(d) (4)(A) (1994); 29 C.F.R. 1630.14(c) (1997)”; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

French 3; “Steinforth, supra note 11, at 969”; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

French 4; “The Cassandra Complex: An Employer’s Dilemma in the Genetic Workplace," Seltzer, J.; 27 Hofstra L. Rev. 411, Winter, 1998; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

French 5; “Di Cosala v. Kay, 450 A.2d 508, 516 (N.J. 1982)”; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

French 6; “27 Am. Jur. 2d Employment Relationship §473 (1996)”; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

French 7; “27 Am. Jur.2d Employment Relationship 476 (1996)”; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

French 8; "Favorito v. Pannell, 27 F.3d 716, 719 (1st Cir. 1994) (quoting Di Cosala, 450 A.2d at 516)”; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

French 9; “Cherry v. Kelly Services, Inc., 319 S.E.2d 463, 464 (Ga. Ct. App. 1984)”; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

French, S.; “Genetic Testing in the Workplace: The Employer’s Coin Toss”; Duke Law and Technology Review; Cite as 2002 Duke L. & Tech. Rev. 0015

Gianaro, C.; “DNA on Trial”; The University of Georgia Research Magazine; Summer 2002; Former editor of UGA’s Research Magazine

Greendale K,; Pyeritz R. E.; “Empowering Primary Care Health Professionals in Medical Genetics”; American Journal of Medicine; Genetics. 106:223-32; 2001

Haldane J. BS; “Heredity and Politics”; Norton; New York, NY: 1938

Hechler , D.; “Railroad to pay $2.2 million over genetic tasting”; National Law Journal; New York: May 13, 2002; Vol.24, Iss. 36; pg. A22; ProQuest ID: 119931493

Lehrer; J.; “Genetic Testing”; Online New Hour Health; Public Broadcasting Station (PBS); The Robert Wood Johnson Foundation; Copyright; June 7, 2001; ©2005 MacNeil/Lehrer Productions

Lewin T.; “Commission Sues Railroad to End Genetic teSting in Work Injury Cases. New York Times, Feb. 10, 2001. p. AlO

Lewin, T; “National Briefing Washington: Accord On Genetic Test,” New York Times; New York, N.Y.: May 9, 2002. pg. A.28; ProQuest ID: 118607871

MacDonald, C.; Williams-Jones, B. “Ethics and Genetics: Susceptibility Testing in the Workplace” Journal of Business Ethics, Vol. 35(3), p. 235-241; 2002

Mahanna, E. “The Burlington Northern Case: Workplace genetic testing”; North Carolina Center for Genomics and Public Health; Project Director

Marchant G. E.; “Genetic Susceptibility and Biomarkers in Toxic Injury Litigation”; Jurimetrics; 41:67-106; 2000

NORD; “Issue Brief: Genetic Nondiscrimination in Health Insurance and Employment Act S. 318/H.R. 602; National Organization of Rare Disorders ©2002 NORD

NWI; “Genetic Discrimination in the Workplace Fact Sheet” The National Workrights Institute; Princeton, NJ

Olafson S.; “Suit claims Dow Shirked Duty on Cancer-Testing of Workers”; Houston Chronicle; Aug. 12, 2000, p. Al

Persson, A. J., Hansson, S. O.; “Privacy at Work Ethical Criteria”; Journal of Business Ethics; Dordrecht: Jan 2003.Vol.42, Iss. 1; pg. 59

Piller, D.; “Burlington Northern Santa Fe Railway Settles Genetic Test Suit” Knight Ridder Tribune; Business News; May 9, 2002. pg. 1; © Copyright 2002, Fort Worth Star-Telegram, Texas; ProQuest document ID: 118582780

Rosen E. “Genetic Information and Genetic Discrimination-How Medical Records Vitiate Legal Protection: A Comparative Analysis of International Legislation and Policies”; Scand. J. Public Health 27: 16672; 1999.

Schafer, S.; “Railroad Agrees to Stop Gene-Testing Workers”; The Washington Post; Apr 19, 2001. pg. E.01; ProQuest document ID: 71490732

Schoeman, F. “Privacy: Philosophical Dimensions of the Literature”; Philosophical Dimensions of Privacy; Cambridge University Press; 1984

Schulte P.A., Lomax G. “Assessment of the Scientific Basis for Genetic Testing of Railroad Workers with Carpal Tunnel Syndrome”; Occupational Environment Medical; 2003

Simms, M.; “Defining Privacy in Employee Health Screening Cases: Ethical Ramifications Concerning the Employee/Employer Relationship”; Journal of Business Ethics; 13(5), 315-325

UNK; “Burlington Northern Drops Genetic Testing of Employees”; AP; February 12, 2001

Wadman M. “Panel Softens Cancer Gene Test Warning”; Nature 380: 573; 1996

Warren, C,; Laslett B:, “Privacy and Secrecy: A Conceptual Comparison”; Journal of Social Issues; 33, 43-51; 1977

Westin, A.; “Privacy and Freedom”; Antheneum; New York; 1968