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The U.S. Equal Employment Opportunity Commission announced on April 18, 2001, thesettlement of its first court action challenging the use of workplace genetic testing under the Americans with Disabilities Act of 1990. The EEOC had sought a preliminary injunction against Burlington Northern Santa Fe Railway (BNSF) to end genetic testing of employees who filed claims for work-related injuries based on carpal tunnel syndrome. “EEOC sought the preliminary injunction to prevent irreparable harm to employees who faced the impossible choice of potentially losing their jobs or revealing their genetic makeup,” said Commission Chair Ida L. Castro. “Our swift action in this case allows Burlington Northern employees subjected to genetic testing to continue to work free of retaliation and future invasions of privacy in violation of the Americans with Disabilities Act.” According to the EEOC’s Petition, Burlington Northern’s genetic testing program was carried out without the knowledge or consent of its employees, and at least one worker was threatened with termination for failing to submit a blood sample for a genetic test. The settlement, in which BNSF admits that it tested certain employees for a genetic marker, is in the form of an Agreed Order and includes the following terms: � BNSF shall not directly or indirectly require its employees to submit blood for genetic tests; � BNSF shall not analyze any blood previously obtained; � BNSF shall not evaluate, analyze or consider any gene test analysis previously performed on any of its employees; and � BNSF shall not retaliate or threaten to take any adverse action against any person who opposed the genetic testing or who participated in EEOC’s proceedings. In addition, as part of the settlement, BNSF shall preserve all evidence relevant to its genetic testing until several charges of discrimination filed with the EEOC against the company are resolved. In its ongoing investigation of the initial charge filings, the EEOC said that it may seek compensatory and punitive damages up to $300,000 per individual (the statutory cap) for a class of claimants ranging from 20 to 30 BNSF workers who were either subjected to genetic testing or who were retaliated against for failing to submit to such tests. “The Commission will continue to respond aggressively to any evidence that employers are asking for or using genetic tests in a manner that violates the ADA,” said EEOC Commissioner Paul Steven Miller, who in July 2000 testified before the U.S. Congress on genetic discrimination. “Employers must understand that basing employment decisions on genetic testing is barred under the ADA’s ‘regarded as’ prong, as stated in EEOC’s 1995 policy guidance on the definition of the term ‘disability.’ Moreover, genetic testing, as conducted in this case, also violates the ADA as an unlawful medical exam.” The Agreed Order entered on April 18, 2001 is enforceable by the U.S. District Court for the Northern District of Iowa, Western Division, located in Sioux City, Iowa, and will remain in place until the EEOC completes its investigation. The settlement was negotiated for the EEOC by Laurie Vasichek, senior trial attorney of the agency’s Minneapolis Area Office, and Jean Kamp, regional attorney of the Milwaukee office. In its Petition for Preliminary Injunction, filed on Feb. 9, 2001, the EEOC asked 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, which are then used for a genetic DNA test for Chromosome 17 deletion — which is claimed to cause carpal tunnel syndrome in rare cases. The EEOC also sought to halt any disciplinary action against or termination of any employee who refused to submit a blood sample for genetic testing. The agency brought the motion after a preliminary investigation of six discrimination charges led by Chester V. Bailey, district director of the EEOC’s Milwaukee District Office, indicated that “the employees would suffer irreparable injury through the invasion of their most intimate privacy rights if BNSF’s practice of genetic testing is not ended.” � 2001, CCH INCORPORATED. All Rights Reserved.

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