BMWE NEWS RELEASE
Brotherhood of Maintenance of Way Employes
Suite 200, 26555 Evergreen Road, Southfield, MI 48076
February 12, 2001 Contact: Harry Zanville at 619-423-2430
BNSF Stops Genetic Testing
Southfield, MIThe Brotherhood of Maintenance of Way Employes announced this morning that it's unprecedented lawsuit against the Burlington Northern Santa Fe Railroad has resulted in a federal court order that the BNSF will immediately cease and desist its coercive genetic testing program of its employees.
Harry Zanville, lead counsel for the BMWE, said that the BNSF agreed to entry of a 60-day order compelling it to stop doing all genetic tests of its employees, to refrain from use of any tests previously taken, to guarantee the privacy of those people already tested, and to not subject to discharge or discipline those employees who refused to be gene tested. Zanville said that this order should "be a real relief for those who believe individuals still have some rights of privacy in the United States."
"This case shows why it was important that the states take the lead in legislating to protect American citizens from those who would abuse their positions of power," said BMWE President Mac A. Fleming. There are 22 states which have prohibited involuntary genetic testing by employers.
Fleming stated that he wanted to publicly thank Dr. Wylie Burke of the University of Washington, Dr. Tony Holtzman of Johns Hopkins, the University of Minnesota Center for Bioethics, and Dr. Paul Billings of San Francisco, some of the leaders in the field of genetics, for stepping forward to help prove that this use of genetic information was misleading, unethical, and needed to be stopped. He added, "Harry Zanville, our lead attorney, did a fantastic job. His efforts will benefit not just BMWE members, but all workers."
On Friday (Feb. 9, 2001) the BMWE filed a lawsuit against the Burlington Northern Santa Fe Railroad Company (and Athena Diagnostics) seeking "to remedy the illegal, compulsory regime of genetic testing of injured employees" by the BNSF. In a related action, the Equal Employment Opportunity Commission filed its first action challenging genetic testing by an employer.
The court was asked to order BNSF to immediately end its policy of requiring all union members who claim work-related carpal tunnel syndrome to provide blood samples for a DNA test for a condition that may predict some forms of carpal tunnel syndrome.
BMWE member Gary Avary, a Nebraska resident, was off work for a period of time but after having had successful carpal tunnel surgery and having been cleared to return to work by the BNSF medical officers and his own physician, was back at work without restrictions. Several weeks later he received a letter from BNSF demanding additional medical information based on his claim that his injury was work related.
Avary's wife, a registered nurse, was suspicious about the lack of preliminary requirements for the blood testing being demanded by BNSF as well as the large amount of blood to be taken and began asking questions. During her questioning, the previously secret intentions of BNSF genetic testing were inadvertently revealed. When Avary found out the true intentions of BNSF, he refused to provide the blood test and was then accused of insubordination and rule violations.
The BMWE brought charges on behalf of all its members because other members have allowed blood samples to be taken, but did not know the samples would be used for genetic testing. "Individuals, without their knowledge or consent, were being subjected to genetic testing that was not job-related, not necessary," said Ida Castro, EEOC Chairwoman. We must "protect workers confronted with such an egregious violation of the Americans with Disabilities Act."
"Heralding a new era in biology and medicine, two rival teams of scientists are to present today (Feb. 12, 2001) their first interpretations of the human genome, the complex set of minuscule instructions that specify a person," reported the Detroit Free Press and hundreds of other newspapers across the country. These initial findings on how humans are built the first since the breaking of the genetic code was announced in June 2000 will be published later this week in two scientific journals.
Experts are worried that information from genetic research could be used to discriminate in hiring, promotions and insurance. Employers and insurers could save money if they could use predictive genetics to identify in advance, and then reject, workers or policy applicants who are predisposed to develop chronic disease.
Fear of such discrimination is already affecting how people view the medical revolution promised by mapping the human genome, reported the Free Press. A Time/CNN poll taken last summer found that 75 percent of those polled did not want insurance companies to know their genetic code and 84 percent wanted that information withheld from the government.
Concern that such tests could be used to weed out workers based on their genetic predispositions to injury or disease has led 22 states to ban the use of genetic screening for making employment-related decisions.
This week Senators Tom Daschle (D-SD) and Edward Kennedy (D-MA) and Rep. Louise Slaughter (D-NY) plan to introduce legislation to prohibit the use of genetic information as a basis for discrimination in employment and health insurance coverage.
"Genetic testing has enormous potential for improving health care in America, but to fully utilize this new science, we must eliminate patients' fears and the potential for insurance discrimination," said Senator Bill Frist (R-TN), the only physician in the Senate. Frist and Senator Olympia Snowe (R- ME) are introducing legislation that would prevent insurance companies from requiring genetic testing and ban the use of genetic information to deny coverage or to set rates.
Writing in Science this week, Daschle and Senator James Jeffords (R-VT) said that "without adequate safeguards, the genetic revolution could mean one step forward for science and two steps backward for civil rights. Misuse of genetic information could create a new underclass the genetically less fortunate."
Jeffords supports the First-Snowe bill while Daschle favors the broader measure that would prohibit genetic discrimination in employment, insurance and elsewhere. He favors laws that would conform to the Universal Declaration of the Human Genome and Human Rights by UNESCO (United Nations Education, Scientific and Cultural Organization): "No one shall be subjected to discrimination based on genetic characteristics that is intended to infringe or has the effect of infringing human rights, fundamental freedoms and human dignity."
The Brotherhood of Maintenance of Way Employes represents the 45,000 rail workers that build and maintain the track, bridges and buildings on the railroads in the United States and Canada.
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