February 15, 2001 >Test was for carpal tunnel syndrome, EEOC's challenge made under ADA

WASHINGTON - The first court action made by the U. S. Equal Employment Opportunity Commission (EEOC) against genetic testing resulted in a voluntary settlement, just 3 days later. Last week the EEOC filed a court action challenging genetic testing at Burlington Northern Santa Fe Railroad. On February 12 the railroad announced that it would put an end genetic testing of employees who have filed claims for work-related injuries based on carpal tunnel syndrome.

The EEOC alleged that the employees were not told of the genetic test, or asked to consent to it. Furthermore, it charged, at least one individual who has refused to provide a blood sample because he suspected it would be used for genetic testing has been threatened with imminent discharge if he failed to submit the sample. The company disputed that charge in a press release.

In its Petition, the EEOC asks the Court to order the railroad to end its nationwide policy of requiring employees who have submitted claims of work-related carpal tunnel syndrome to provide blood samples. The samples are then used for a genetic DNA test for Chromosome 17 deletion, which is claimed to predict some forms of carpal tunnel syndrome. EEOC also sought to halt any disciplinary action or termination of the employee who has refused to submit a blood sample.

EEOC Commissioner Paul Steven Miller explained, "The Commission takes the position that basing employment decisions on genetic testing violates the ADA. 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."

Chester V. Bailey, Director of EEOC's Milwaukee District Office, noted that the action is based on six charges of discrimination filed with the office. Four of the charges were filed by affected individuals; two were filed by officials of the Brotherhood of Maintenance of the Way Employees on behalf of all affected union members.

Caution advised
The area of genetic testing is new, and the EEOC is moving quickly to make an aggressive statement. Labor experts advise that companies move slowly in this area. In particular, they should make sure they have a valid business purpose for such testing. If the testing interferes with rights under ADA, that would also be a matter of concern.

SHRM agrees with EEOC
Elizabeth Owens, SHRM's state legislative affairs coordinator said of the case: "We agree with the EEOC's interpretation (which does not carry the weight of law) of the Americans with Disabilities Act, which holds that discrimination based on an employee's genetic information is a violation of the ADA." She also said that, "However, given the fact that the case may now not be heard, the EEOC's position remains legally untested, leaving many uncertain as to whether the courts would, in fact, uphold the EEOC's position. This leaves employers in somewhat murky waters as to how current law applies to the issue of genetics in the workplace."

"Until a more definitive answer is reached," Owens said, "it may be advisable for employers to develop a workplace policy on this issue, or include genetic information in their current non-discrimination policies' despite the fact that statistics show that employers are not conducting genetic tests."

Currently, 22 states prohibit genetic discrimination in employment. Such bias in health insurance is prohibited in 33 states.