Court Case Outcome May Deter DNA Testing

NEW YORK - U.S. companies intent on weeding out unhealthy or troublesome staff through DNA testing may think again after Burlington Northern Santa Fe Corp., the second-biggest U.S. railroad, backed down last week in the face of a landmark lawsuit, legal experts said.

In an unprecedented legal action, the Equal Employment Opportunity Commission accused Burlington Northern of violating the Americans with Disabilities Act by submitting its employees to genetic testing without the workers' knowledge.

As a result of the lawsuit, the railroad announced last week it would stop submitting those employees diagnosed with carpal tunnel syndrome, a condition characterized by pain or numbness in the wrist or fingers that is usually caused by repetitive movement of the hand, to genetic tests.

Both legal and scientific experts said the suit reinforces the widely held belief that submitting employees to genetic testing for disorders that do not affect job performance is unlawful and unlikely to become common place.

"It's going to be an uphill battle for employers to be able to justify this kind of testing," Victor Schachter, an employment law specialist with Fenwick & West LLP, a Palo Alto, Calif.-based law firm, said. "Burlington Northern reaffirms what most of corporate America already knew."

The EEOC found in the case of Burlington Northern that the company's testing of its employees did not comply with the disabilities act, which prohibits employers from making disability-related inquiries of their employees unless "consistent with business necessity."

In a petition filed in US District Court in Iowa, the EEOC said the railroad employees were "capably and safely performing the essential functions of their jobs" and therefore should not have been tested, let alone threatened with termination.

"This is an important case because it will send a clear and unequivocal message to other employers and employees regarding the EEOC's position on genetic discrimination," EEOC Commissioner Paul Steven Miller said in an interview. "I hope that this case educates employers about the law which applies to genetic testing and taking adverse employment actions on the basis of genetic markers."

The fear among critics of genetic testing is that the results of such tests would be used to eliminate employees based on their genetic predispositions to certain diseases and not based on their ability to perform their jobs.

"We were trying to determine whether the injury was work-related so that we could fix it," Richard Russack, a spokesman for Burlington Northern, said of the company's justification for the testing. Russack said he would not speculate on what measures the company would have taken based on the results of the tests.

"From a scientific perspective, it's difficult for me to see the relevance of the genetic information for the company," Bob Charrow, a partner with Washington-based Crowell & Moring LLP said of the Burlington Northern case.

"Merely because two things are associated doesn't mean that there is a cause and effect association," said Charrow, who specializes in research and drug law, of the difficulty of attributing medical conditions to a person's genetic makeup.

Scientists said that even if such testing were allowed, it would not necessarily help employers weed out workers who may get sick.

"Environmental factors can contribute to disease whether someone has a genetic predisposition or not," said Dr. Paul Billings, co-founder of GeneSage & Co., a San Francisco-based genetic information company and an advisor to the railworkers' union's legal team.

At present, very few companies genetically test their employees for any reason. In a 2000 survey of more than 2,000 employers conducted by the American Management Association, only seven said they practiced genetic testing as defined by the Human Genome Project and the National Institute of Health.

Last year, President Bill Clinton issued an executive order preventing the federal government from submitting its employees to any DNA testing.

While no federal law is in place that prevents genetic testing of non-government employees, 21 states have some level of legislative restrictions against genetic discrimination, according to the Cambridge, Mass.-based Council for Responsible Genetics.

Employees are also protected under the disabilities act and various other medical privacy regulations, though experts said legislation in place is by no means adequate.

"There is a fairly well-developed body of law out there that can be used to guide the court," Charrow said.

Experts said genetic testing is unlikely to become widespread. However, many said there will be a place for such technology in cases in which public safety risks outweigh an intrusion on privacy, such as workers handling very sensitive chemicals or managing nuclear facilities.

"I do believe that genetic testing will have a place where there are such compelling safety issues," Fenwick & West's Schachter said. "But they are going to have to be exactly that compelling," he said.

"One of the biggest issues is not whether it is bad but how companies are doing it," said David Gebler, president of the Working Values Group, a Boston-based firm that develops business ethics initiatives.

Gebler said he could envision situations in which both employers and employees would appreciate the reasons for such testing because of the possible long-term health benefits. This, however, could only happen in cases where the employee trusts that the employer will not use the information in adverse ways, Gebler explained.

Miller echoed the importance of caution with respect to DNA tests in the workplace. "Genetic testing reveals some of the most private information that one has and has tremendous implications for individuals and their family members. I think that indicates what is at stake here."