In 2002, the Equal Employment Opportunity Commission (EEOC) and the Burlington Northern Santa Fe Railway (BNR) settled a $2.2 million case that EEOC filed against the railway company for genetically testing its employees without consent. While BNR admitted to so doing, the company stressed that it did not do anything wrong. (Schafer, 2001)
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BNR started genetically testing employees after a maintenance worker made compensation claims against the company for allegedly acquiring carpal tunnel syndrome through his job. According to Schafer (2001), the worker initially refused a blood testing but was threatened to be fired by the company. It was the worker’s wife, a nurse, who discovered that the company had been genetically testing employees without their knowledge. The million-dollar settlement brought closure to the genetic testing of BNR employees, with assurance from BNR that the occurrences of the case will not be taken against any employee.
BNR carried out genetic testing to employees who are making medical claims to prove, with proper medical examination, the viability of the claims and to protect itself from probable workplace health-related lawsuits that may arise from the growing cases. Most claims filed were related to carpal tunnel syndrome. Scientists, however, are on a dispute whether genetic testing is the right way to prove the viability of such medical claims.
With the case ending with about 36 employees bagging a total of $2.2 million worth of settlement from BNR (Duke L. & Tech, 2002), the question on the settlement’s fairness remains to be a debatable topic.
Two sides of the coin
The question on fairness has two sides. The first side is if the settlement was fair to BNR, or the employers in general. The second side is if the settlement is fair to the employees, or the workforce in general.
Whether it is fair for BNR and employers is a question of the purpose of genetic testing. The EEOC-BNR case was grounded on The Americans with Disabilities Act. Apart from this, imposing against genetic testing in the workplace can be taken in three other standpoints according to the law, according to Duke L. & Tech (2002): the prohibition of the constitution against illegal searches and seizure, the Title VII of the Civil Rights of 1964, and state legislations across the country against discriminating employees on the basis of genetic test results. If the company genetically tests employees or applicants before they are hired or promoted, the company has a liability against the law. Likewise, if the company carries out a genetic testing without the knowledge of employees, whether it is to prove the viability of a medical condition or some other reasons, the company shall be answerable to the court.
On the other hand, a company may be right to utilize genetic testing to help employees or to protect the company, such as to certify a medical condition that an employee is filing for the sake of financial claims, though the company has to have consent from the employees being tested to do so. However, if the company uses the result of genetic testing to prove that the employee contracted his medical condition genetically, and not from the workplace, to protect itself from financial or judicial liability, the employer is on the wrong light.
On the side of the employees, it is a question of whether they consent the test or not. If they are genetically tested against their will, then it is not fair for them. Being genetically tested should be a free-will activity, as the results will reveal sensitive information about the person who was tested. Skene (n.d.) affirms this by saying that the regulation of genetic testing may be patterned with other regulations on privacy and protection of personal information. Therefore, genetically testing someone requires that person’s consent, and if given the result of the genetic test must be kept confidential.
The BNR Dispute
With the dispute filed against BNR, growing medical claims is the reason given by the company in carrying out genetic tests to employees without permission. The results of the genetic tests were teamed with medical examinations to prove the existence of carpal tunnel syndrome on employees who claimed of acquiring the deformity in the workplace.
According to Duke L. & Tech (2002), there is no direct legislation forbidding employers to genetically test employees. However, in the BNR case the dispute was about the privacy and personal choices of the employees genetically tested without consent. The case was no longer about genetic testing and health insurance; rather, it is testing employees who otherwise may have refused a genetic testing if they had known that is what the company doctor is taking their bloods for.
Byravan and Matlaw (2005) argue that privacy should be a first consideration when speaking about genetic testing. A genetic makeup can make or break lives—for example, an insurance company who gets hold of a person’s genetic test results may play things safely and deny a person long-term health insurance coverage citing other bases, with the person not knowing that he is being denied coverage because the insurance company got a copy of her genetic records. In the same way, employers may use a leak in genetic records as a basis of hiring applicants or not. With blurry legislations regarding the protection of the confidentiality of genetic results—ultimately affecting physical privacy—many people will think twice about giving in to genetic testing. This will make it difficult for medical professionals to help patients fight diseases they have a genetic history of, as well as treat the patients properly by use of analyzing patients’ genetic makeup. The pros and cons of genetic testing for employees are all too sensitive. Issues of physical privacy as well as the medical necessity of genetic testing bother them. With the employees of BNR’s right to refuse genetic testing, as BNR performed the test without letting them know, the company breached the employees’ trust.
On another standpoint, Duke L. & Tech. (2002) reports many sources affirming that the BNR employees gave a non-deliberate consent in an "invasive procedure" after filing medical claims for carpal tunnel syndrome.
Was the settlement fair?
The settlement is fair for BNR and the employees. Because BNR broke the trust and the right to privacy and confidentiality of employees, they served right in paying the multi-million dollar settlement since the case is no longer why they are testing their employees genetically but how they are carrying out the tests.
The genetic tests of BNR employees were done without their knowledge, and they did not have a chance to decline being tested. They also did not have any control on the information that the company got out of the genetic test results. The decision whether the results of genetic makeup of employees will be used for pre-judgment in health insurance coverage or the corporate advancement of employees was left exclusively to BNR.
With the results out of the employees’ control, it would have been easy for BNR or a third party inside the company to divulge the employees’ genetic records. While it would have been fair for the company, to protect its financial and judicial interest, it did its course the wrong way by doing the test against the employees’ knowledge and will.
Given the foregoing, it is right to conclude that the BNR settlement has been fair.
Conclusion If BNR has consent on the tests it did to its employees, the case would have been lighter for the company. The case likely ended in another way that a $2.2 million settlement. It would have been easier for BNR to say that the move is for the positive interest of both the employees and the company.
On the standpoint that BNR employees gave non-deliberate consent for invasive procedure such as genetic testing, as this is one way to prove the feasibility of their claimed medical condition, the company still should have required employees to sign a paper admitting their consent to a genetic testing. This way, BNR has a tangible evidence that they are authorized to carry out a genetic test on their employees.
On the argument that the genetic tests were done privately because employees may refuse, BNR and employers should keep in mind that when talking about genetic testing, it is a personal decision of the person being tested. After all, proper medical examination sans genetic testing is enough to prove if an ailment the employee is claiming was acquired in the office.
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