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May 2001 • Vol 1, No. 1 •

Railworkers Win Against Genetic Testing


As we go to press, in a news release issued jointly by the Brotherhood of Maintenance of Way Employees (BMWE) and the Brotherhood of Locomotive Engineers (BLE), it was announced that the Burlington Northern Santa Fe Railway Co. (BNSF) had settled a lawsuit filed two months ago to put a stop to coercive genetic testing of its employees. The suit, brought against BNSF and Athena Diagnostics by the BMWE and joined by the BLE, sought "to remedy the illegal, compulsory regime of genetic testing of injured employees" by the railroad.

In an agreement reached on April 6, the company agreed to terminate all genetic testing of employees represented by the labor unions. BNSF also agreed to destroy all blood samples and test records related to such testing, as well as promise not to discipline any employee for failing to comply with requests for medical information in connection with tests performed prior to the agreement.

The settlement also included a commitment by Burlington Northern to support national legislation to prevent future genetic testing on employees. Workers who were subjected to the testing maintain the right to pursue their cases individually against the railroad.

In the first federal lawsuit of its kind, the U.S. government sued Burlington Northern Santa Fe Railway Co. (BNSF) for requiring genetic testing of employees who file claims for certain work-related injuries. According to the suit, filed in U.S. District Court in Sioux City, Iowa, on Feb. 9, the policy violates the workers' civil rights.

The U.S. Equal Employment Opportunity Commission (EEOC) asked that the railroad immediately end the testing of workers who make claims against the company for carpal tunnel syndrome and related injuries. The lawsuit states that the employees were not asked to consent to the testing and at least one worker who refused to provide a blood sample was threatened with the loss of his job.

This suit represents the first time that the EEOC has challenged genetic testing. In response to the suit, BNSF said it will stop the practice under an order filed with the court.

The railroad, which has approximately 40,000 employees, said that about 125 workers have filed claims for carpal tunnel syndrome since March 2000, when the testing policy was instituted, and only 20 had been tested. Carpal tunnel, caused by repetitive hand motions, is the leading workplace hazard, according to the National Academy of Sciences.

Burlington Northern had requested employees to submit to blood tests to see if they carried a genetic trait called Chromosome 17 deletion. Studies have suggested that a person with that trait is more likely to develop some forms of carpal tunnel syndrome.

Privacy advocates argue that genetic information could be used by employers and insurance companies to discriminate against people who are considered more likely to become ill or disabled.

In its petition to the court the Equal Employment Opportunity Commission said the railroad employees were "capably and safely performing the essential functions of their jobs," and therefore should not have been tested, let alone threatened with disciplinary action.

"This is an important case because it will send a clear and unequivocal message to other employers and employees regarding the EEOC's position on genetic discrimination," EEOC Commissioner Paul Steven Miller said. "I hope that this case educates employers about the law which applies to genetic testing and taking adverse employment actions on the basis of genetic markers," he concluded.

Burlington Northern said it was merely "trying to determine whether the injuries were work-related so that we could fix it." However, Richard Russack, a spokesman for the company would not speculate on what measures BNSF would have taken based on the results of the tests.

Critics of genetic testing fear that the results of such tests would be used to eliminate employees based on their genetic predisposition to certain illnesses and not based on their ability to perform their jobs.

"From a scientific perspective, it is difficult for me to see the relevance of the genetic information for the company," Robert Charrow, a partner with Washington-based Crowell and Moring, LLP, said of the BNSF case.

"Merely because two things are associated doesn't mean that there is a cause and effect association," added Charrow, who specializes in research and drug law, of the difficulty of attributing medical conditions to an individual's genetic makeup.

The scientific community has also voiced concerns about the credibility of genetic testing as applied by BNSF. Even if such testing were allowed, it wouldn't necessarily aid employers to weed out workers who might become injured or ill.

"Environmental factors can contribute to disease whether someone has a genetic predisposition or not," said Dr. Paul Billings, co-founder of GeneSage and Co., a San Francisco-based genetic information company and advisor to lawyers representing the railroad workers.

The threat to working people involved in the area of genetic testing is so real that last year, President Clinton was compelled to issue an extensive executive order preventing the federal government from submitting its employees to any form of DNA testing.

While there is no federal law in place preventing genetic testing of non-government employees, at least 21 states have implemented some level of legislative restrictions against genetic discrimination, according to the Council for Responsible Genetics, of Cambridge, Mass.

The EEOC bases its lawsuit against Burlington Northern on the opinion that genetic testing is a clear violation of the Americans With Disabilities Act. "As science and technology advance, we must be vigilant and ensure that these new developments are not used in a manner that violates workers' rights," stated EEOC Chairwoman Ida L. Castro.

Although many experts predict that genetic testing is unlikely to become widespread, they warn that there will be a place for such technology in cases in which public safety risks outweigh an "intrusion to privacy," such as workers handling sensitive chemicals or at nuclear facilities.

"I do believe that genetic testing will have a place where there are such compelling safety issues," stated Victor Schachter, an employment law specialist with Fenwick and West LLP, of Palo Alto, Calif. "But they are going to have to be exactly that&Mac226; compelling."

Although the railroad agreed to halt genetic testing on Feb. 12, BNSF found itself in hot water once again when it was announced that the Federal Railroad Administration was citing the company for failing to report any of the 125 carpal tunnel injury claims. Federal regulations mandate the reporting of all employee injuries in order to help the government track workplace injuries.

The agency could fine Burlington Northern up to $75,000 if it is shown that the carrier willfully withheld these injury reports. Investigators who reviewed 100 of the cases found that 15 of them met the requirements for reporting.

Lawyers representing the injured employees and their union say that there are hundreds of unreported cases, said Charles Collins, a St. Paul, Minn., attorney who represents the Brotherhood of Maintenance of Way Employees in the case.

Although mandated to report any "lost time" injury occurring on railroad property, the nation's Class I carriers historically have fudged injury reports, with the full cooperation of the federal agency responsible for protecting railroad employees and the traveling public, namely the Federal Railroad Administration (FRA).

What lies at the heart of the aborted genetic testing of BNSF employees is not concern for the health and well being of the workforce, but limiting the company's liability in settling claims that result from those injuries. Anyone employed in the railroad industry quickly learns the cynical role of the government in helping the company achieve its objective.

Twenty something years ago, the phrase“to promote the health of the industry” became a central theme in the mission statement of the FRA and its counterpart in aviation, the Federal Aviation Administration (FAA).

I can assure you, the originators of the phrase were talking about the health of bank accounts of the executives and speculators who control the nation's airlines and railroads, not their employees.

Workers employed in various aspects of transportation in the United States are covered by the Federal Employees Liability Act (FELA). Under its terms, workers and passengers of the country's common carriers are able to sue their employer, or transportation provider, for damages in the event of injury or death.

When a railroad, for example, is found responsible for an accident, those who suffer an injury are entitled to a trial by jury in order to prove negligence.

Needless to say America's railroads and airline companies want a quick death sentence for the FELA. They argue that it is antiquated and unnecessary, and workers should be covered under each state's workman's compensation statutes.

By falsifying reports or not reporting injuries at all, like those involved in the BNSF case, the corporations subject to FELA regulations hope to demonstrate a phony reduction in injuries across the board and enlist the assistance of their friends in Congress to kill the FELA and replace it with various workman's compensation formulas, saving the industry millions of dollars.

Perhaps the most humorous aspect of the BNSF genetic testing boondoggle is that the folks at the federal government most responsible for helping destroy the ability of working people on the nation's transportation giants to protect themselves, got caught in a trap of their own manufacture.

Now, the FRA finds itself in the awkward position of sanctioning the second largest railroad in the United States for violating rules to which the agency routinely turns a blind eye.

Genetic testing is part of general attack on civil liberties

Even though the principal focus of this article is on genetic testing by the nation's second largest railroad, there are far greater dangers on the horizon. Advances in technology across the board are being introduced by various governmental and police agencies, to weaken our right to privacy and limit civil liberties.

Whether it be new "face-mapping" computer technology used to "check for terrorists" at this year's Super Bowl or cutting-edge alcohol-sniffing devices at the tip of a police officer's flashlight, new high-tech gadgets are increasingly being introduced by the so-called law enforcement community.

Police and prosecutors argue that the new technology merely represents an improvement of the human eye, ear, nose and touch without causing any fundamental change of individual privacy.

Under the guise of protecting Americans from "increasing terrorist attacks being planned and launched from around the world," the Bush administration is working to expand upon the anti-terrorism measures introduced by former President Clinton.

Security experts preparing for the 2002 Winter Olympics in Salt Lake City are already evaluating the face-mapping system used at the Super Bowl in Tampa, Fla., on Jan. 28.

Cameras were trained on the faces of unsuspecting fans passing through the stadium's turnstiles and the digitalized images were instantly compared with those stored in computer banks of terrorists and other criminals.

The system resulted in no arrests, but did identify one known ticket scalper, who fled into the crowd and escaped. Tampa police said they were pleased with the system's performance.

The American Civil Liberties Union (ACLU) called it the "Snooper Bowl" and said it subjected fans to a "computerized police lineup." Carol Gnade, executive director of the Utah ACLU, has stated that the technology is "outpacing our basic privacy rights."

In any event, it should be clear to all, the government and its corporate allies are gearing up for a further weakening of individual rights, as codified in the Bill of Rights.




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