The Equal Employment Opportunity Commission (EEOC) has settled its first court action challenging the use of workplace genetic testing under the Americans with Disabilities Act of 1990 (ADA). EEOC had sought a Preliminary Injunction against Burlington Northern Santa Fe Railway (BNSF) to end BNSF’s nationwide policy of genetic testing of employees who filed claims for work-related carpal tunnel syndrome. The employees were required to provide blood samples, which are then used for a genetic DNA test for Chromosome 17 deletion, which is claimed to cause carpal tunnel syndrome in rare cases.
According to EEOC’s Petition, Burlington Northern’s genetic testing program was carried out without the knowledge or consent of its employees, and at least one worker was threatened with termination for failing to submit a blood sample for a genetic test. The settlement, in which BNSF admits that it tested certain employees for a genetic marker, is in the form of an Agreed Order. BNSF is not allowed to do any further testing, including on samples already obtained, and may not require its employees to submit blood for genetic tests. BNSF must also preserve all evidence relevant to its genetic testing until several charges of discrimination filed with EEOC against the company are resolved. EEOC may seek compensatory and punitive damages. The Agreed Order will remain in place until the EEOC completes its investigation.
EEOC Commissioner Paul Steven Miller stated: “Employers must understand that basing employment decisions on genetic testing is barred under the ADA’s ‘regarded as’ prong, as stated in EEOC’s 1995 policy guidance on the definition of the term ‘disability.’ Moreover, genetic testing, as conducted in this case, also violates the ADA as an unlawful medical exam.”
