BNSF's Case of Illegal Genetic Screening in the Workplace

Examining a genetic testing case that set a precedent in regards to workplace privacy rights, harassment at work, discrimination laws & invasion of privacy in the workplace.

The Burlington Northern and Santa Fe Railway Company (BNSF) agreed to pay $2.2 million and to change it's practices as part of a settlement with the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of all it's employees, especially 36 workers that were sought out to be genetically tested without their agreement and awareness, during a physical examination as a result of their complaints of sustaining job related carpal tunnel syndrome injuries. These tests were considered a breach of the Americans with Disabilities Act of 1990. The settlement at BNR was fair to a large extent. BNSF needed to learn its lesson, and the public needed a scapegoat. However, the money would be better off going to a charity then to 36 employees. The fact that a settlement was reached and mediated outside of court is much better than having to go through a long and drawn out court case, that would result in a declared winner and loser.

The Railroad's actions were not fair, and they needed to be taught a lesson for the future. BNSF should not have sought to genetically screen their workers without their permission or awareness. If they thought that what they were doing was ok, then it would not have been a secret from their workers. These employees had experienced carpal tunnel syndrome injuries, which they claimed were linked to their labor. While they did not fire any employees as a result of this testing, they did threaten to fire those who did not take the test. They did not find the rare genetic marker that they tested for in any of the employees screened. Clearly, the Railroad was trying to gather proof or evidence in court that these injuries were not work related, by seeking to find a genetic tendency towards these injuries in these employees blood. However, one cannot do this without the person's consent, and the proper way for them to have done this would have been to explain the importance of blood testing to a legal judge and get a court order requiring these workers to get tested for the case. At least, they should ask the workers to sign a form showing their knowledge and consent to the genetic testing. They should not be allowed to discipline their workers for declining the medical evaluation. As a result of this court case, it has been established that in the future, BNSF will not genetically screen workers, will supply improved ADA education to its health workers, and its higher-ranking executives will appraise all major procedures. They also agreed not to strike back at any employee that did not consent to the blood tests, or that was involved in the lawsuit.

The public needed a scapegoat. The U.S. Equal Employment Opportunity Commission (EEOC) needed to prove a point to society, to enforce compliance with the Americans with Disabilities Act of 1990 (ADA), and show that violation will have consequences. Further testing and similar actions by other companies are discouraged, and much less likely to happen in society at large. This was the first EEOC lawsuit that ever disputed genetic screening under the ADA. The EEOC's opinion is that purely collecting a worker's DNA might be an infringement on the ADA. The EEOC is in charge of implementing the federal regulations that disallow work related prejudice, to include the ADA, which outlaws employment prejudice involving disability. The publicity of this resolution is a clear message to other companies not to discriminate against employees with the use of genetic screening, and the consequences.

The $2.2 million would be better off going to a charity then to the 36 employees. Each of these employees received an average of $61,111 for having had a blood test done on them without their knowledge. This was not as compensation for developing carpal tunnel syndrome- they might still request compensation for that. This is just for the testing done. While most people would welcome an additional $61,111, this does not change the fact that they were tested. True, the Railroad and society at large had to be shown a point, yet the money could have come to much better use by using it to fund basic necessities, such as food, clothing and shelter, for impoverished people worldwide.

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The fact that this issue was productively resolved and willingly reconciled outside of court is much better than having to go through a long and drawn out court case, leading to a winner and loser. Since all parties have agreed to this settlement, it is evident that they are all somewhat satisfied with it. Although each side may have wanted a different outcome, if the case had gone to court, then the "loser" would be much worse off. So this is more beneficial than the other alternative.

From a Utilitarian perspective, the employees will be harmed, since their right to physical privacy has been invaded by their workplace. The Employer might benefit by proving that they had a tendency towards carpal tunnel syndrome, and therefore not having to pay for work related injuries. However, if they would ever use this in court, it would come to light that this evidence was taken in an illegal manner. So in the end, all are harmed and no one benefited from the testing, other than the side benefit of setting a legal precedent for society.

Using deontological considerations concerning workplace invasions of privacy, the right to privacy is being invaded. This is a human right that all free people have, it is also a civil right based on the ADA. People have the negative right to be left alone and not have their privacy invaded.

The settlement is good for many reasons. It prevents the recurrence of this by the Railroad and by other companies, and enforces the Americans with Disabilities Act. It shows the perils of not using utilitarian and deontological reasoning when making moral decisions. However, the money would be better off if it was given to charity rather than to the employees.

Updated: 04/18/2012, bhthanks

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