OMAHA — The Burlington Northern & Santa Fe Railway Co. has agreed to pay $2.2 million to employees, including some in Nebraska, who complained that the company was conducting secret genetic tests on them, reports the Omaha World-Herald.
The U.S. Equal Employment Opportunity Commission on Wednesday settled a court action that began in February 2001, after the commission learned that the company was genetically testing employees without their knowledge or consent – a violation of the 1990 Americans with Disabilities Act. The commission filed a lawsuit ordering the company to stop the genetic testing and any disciplinary action against workers who refused the tests.
The lawsuit against the Fort Worth, Texas, railroad named three Nebraskan rail workers: David Escher of McCook, John B. Weibelhaus of Fordyce and Gary Avary of Alma.
The case began with a discovery by Janice Avary, Gary Avary’s wife, that Burlington Northern was trying to extract blood for genetic testing without Avary’s permission. When Avary refused the blood tests, he said the company started disciplinary actions against him. He could not be reached for comment on Wednesday.
Days after the commission filed suit, Burlington Northern voluntarily suspended the genetic testing, a program it started in March 2000.
The testing was intended to identify people who may be genetically predisposed to carpal tunnel syndrome – a painful condition of the hand and wrist believed to be caused by repetitive motion – in hopes of avoiding paying medical claims, according to the lawsuit.
Jean Kamp, an Equal Employment Opportunity Commission attorney in the agency’s Milwaukee district office, said the $2.2 million settlement will be given to 36 employees who were either tested or asked to submit to the blood tests.
She said those actually tested will receive about $100,000; those who were asked to have blood drawn but didn’t go through with the procedure will get about $5,000.
Escher, of McCook, who unknowingly underwent the genetic testing, first heard of the settlement when contacted by the World-Herald on Wednesday.
“I’m happy that it’s over. It has been 18 months since this started,” said Escher, who still works for Burlington Northern.
The commission’s lawsuit was the first-ever government suit challenging genetic testing in the workplace.
Burlington Northern executives have insisted from the beginning that the company acted in accordance with the law, but have apologized to employees.
“We think that the mediation process worked well and achieved a reasonable conclusion of this matter, although we continue to believe that none of the company’s actions were contrary to the law,” said Burlington Northern President, Chairman and CEO Matthew K. Rose.
Kamp, the commission’s attorney, said Wednesday’s settlement makes the 2001 orders – to stop the genetic testing and halt disciplinary actions against the workers who refused the tests – permanent.
The settlement also gives the victims monetary relief, she said.
“One reason it took so long to resolve the case is because of that very question: What is a fair amount for someone who’s been genetically tested?” she said. “Our argument was a huge amount (should be given to the workers.)
“These people who we talked to felt violated,” Kamp said.
She said affected workers still can file claims against the railroad under state laws, but not under the federal Americans with Disabilities Act.
BNSF, which employs 39,000 people, is the eighth largest employer in Nebraska, with nearly 4,800 workers in the state. It also is the second largest railroad after its rival, Omaha-based Union Pacific.