BMWE suit ends BNSF's covert genetic testing

Railroad secretly tested employee DNA; BLE joins lawsuit seeking injunction

The Brotherhood of Maintenance of Way Employes announced on February 12 that its lawsuit against the Burlington Northern Santa Fe Railroad has resulted in a federal court order requiring BNSF to immediately cease and desist coercive genetic testing of its employees.

On Feb. 9, 2001, the BMWE filed a lawsuit against BNSF and Athena Diagnostics seeking "to remedy the illegal, compulsory regime of genetic testing of injured employees" by the BNSF.

Harry Zanville, lead counsel for the BMWE, said that the BNSF agreed to entry of a 60-day order compelling it to stop all genetic testing 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 submit to genetic testing. 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."

He added: "This case was never about money. We weren't asking for damages. We just wanted the railroad to quit genetic testing." Zanville said the case was filed in Sioux City because Iowa has a law forbidding genetic testing.

"The activity pretty much was concentrated in the Upper Midwest," Zanville said.

The BMWE brought in Zanville because of his specialized expertise. He is a former assistant county prosecutor in Iowa who later specialized in civil rights and labor law and in 1998 was considered for an appointment to a Republican seat on the Surface Transportation Board.

"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.

The court ordered 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 indicate a predisposition to some forms of carpal tunnel syndrome. The union members were not informed that the blood samples were being used for genetic testing.

When the BLE learned in late February that at least one BNSF locomotive engineer also had been forced to submit to genetic testing, it took steps to join the suit as an additional plaintiff.

"The carrier's action in coercing its employees to submit to genetic testing is outrageous and we are proud to join with the BMWE in leading the struggle in defense of the privacy rights of railroad workers and all workers," said BLE International President Edward Dubroski.

After being thrust into the national spotlight for its secret genetic testing, BNSF apologized to employees. BNSF President and Chief Executive Officer Matt Rose wrote a two-page letter to "Members of the BNSF Community" that was dated March 1.

In the letter, Rose expressed regret for how the genetic testing was handled and said the decision to go forward with the testing "should have been made at the highest level of the company and... fully disclosed and explained to our employees."

"This was not done, and for that I apologize," Rose wrote.

2001 Brotherhood of Locomotive Engineers