Genetic testing derailed at BNSF

SOUTHFIELD, Mich., and CLEVELAND, Ohio, April 10, 2001 -- In a major victory for organized labor and workers' rights, the Burlington Northern Santa Fe Railway Company has settled a lawsuit filed by the Brotherhood of Maintenance of Way Employes two months ago to stop the coercive genetic testing of its employees by BNSF, the BMWE and the Brotherhood of Locomotive Engineers announced yesterday.

The BMWE filed suit on February 9 against BNSF and Athena Diagnostics in Sioux City, Iowa (Western Division of the U.S. District Court for the Northern District of Iowa) and was soon joined by the BLE, seeking "to remedy the illegal, compulsory regime of genetic testing of injured employees" by the BNSF.

On February 12 Judge Mark C. Bennett, by consent of the parties, issued a temporary restraining order and BNSF agreed to halt its coercive genetic testing program which BNSF said it had begun in March 2000. "This order should be a real relief for those who believe individuals still have some rights of privacy in the United States," said lead counsel Harry Zanville, at that time.

In Friday's (April 6) settlement agreement, BNSF agreed to terminate all genetic testing of employees represented by BMWE and BLE. The railroad also agreed to destroy all blood samples and records of testing previously done (when authorized by the affected individuals), confirming the status of the destruction to the BMWE and BLE, and agreed not to discipline any employee for failure to comply with requests for medical information in connection with previously conducted tests.

BNSF, acknowledging the necessity for national legislation limiting the use of genetic screening in employment decisions, agreed to "commence written and oral expression of this position to key officials of Congress and the Executive Branch" within 30 days of execution of the agreement. The significance of this provision of the settlement agreement is readily apparent as Congress is being asked to enact a comprehensive, national prohibition against genetic testing.

BNSF was the railroad Senator Edward Kennedy was talking about when he said, "genetic testing is a real and frightening problem, and it is happening right now, by one of the largest railroads in the country" as he reintroduced the Genetic Nondiscrimination in Health Insurance Employment Act the week of February 19. Bills were defeated in the previous session of Congress in part because opponents argued it wasn't happening.

"The results of this unprecedented lawsuit are of immense benefit to not only BMWE and BLE members, but for all workers," said BMWE President Mac A. Fleming. "This victory demonstrates that corporate control of workers' private lives can not only be halted but can be completely eliminated."

"This is a major victory for workers' rights and personal privacy for all working men and women who should not have to fear mandatory genetic testing," said Ed Dubroski, BLE International President. "Not only did all of labor support our cause, but we also drew strong support from a broad cross section of America, including the medical community, civil rights groups and Americans from every walk of life."

"This was a critical case and we successfully drew a line in the sand to protect the essence of privacy rights," said Zanville. "However, the BNSF should be applauded for its decision to do the right thing after this serious misconduct was discovered."

The Brotherhood of Maintenance of Way Employes represents 45,000 rail workers that build and maintain the track, bridges and building on the railroads in the United States and Canada. For further information visit The Brotherhood of Locomotive Engineers, North America's oldest labor organization, has 58,000 members in the U.S. and Canada. The BLE is the certified bargaining representative for, among others, locomotive engineers on U.S. Class 1 and Canadian railroads, Canadian rail traffic controllers and, through its American Train Dispatchers Department, U.S. train dispatchers. For further information visit

An interview by Mike Wallace with BMWE member Gary Avary and his wife Janice, the Nebraska nurse credited with making the genetic testing discovery, will be shown in a 60 Minutes segment being aired tonight.

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April 10, 2001


2001 Brotherhood of Locomotive Engineers