Case Study

Gary Avary, a 45-year-old track and maintenance worker for the Burlington Northern Santa Fe Railroad (BNSF), returned to work in October 2000 after successfully undergoing surgery for carpel tunnel syndrome (CTS).562 A few days later the railroads medical department requested all records of his treatment for CTS, and in December he was asked to report for a mandatory medical examination that would include blood tests. When his wife, a registered nurse, inquired about the need for blood, she inadvertently learned that a genetics test was included. Gary Avary was subsequently told that if he did not submit to the test, he would be fired. The previous March, BNSF had introduced a policy of secret genetic testing of workers with CTS in order to determine whether any of them has a DNA defect known as Chromosome 17 deletion. This was thought to be associated with a condition called Hereditary Neuropathy with liability to Pressure Palsies (HNPP), which can make a person susceptible to nerve injuries, including CTS. HNPP is a rare condition that is estimated to occur in 1 in every 2,500 people.563 Although approximately 90 percent of people with HNPP develop CTS, this defect can scarcely begin to account for the vast majority of CTS cases, especially among railroad workers whose lives have been spent in bone-jarring labor. Gary Avarys union filed a suit, charging that BNSF had tested or had sought to test 36 employees who had filed claims for job-related CTS.564 The suit was based on the Americans with Disabilities Act (ADA), which reads in part, Medical examinations of existing employees must be job-related and consistent with business necessity. The company claimed, however, that the testing was a matter of business necessity. Injuries to railroad workers are subject to a 1908 law, the Federal Employers Liability Act (FELA), which allows jury trials. Because of the heavy potential liability, BNSF claimed that it has a right to defend itself, especially if the injury is due to genetic rather than workplace factors. In the words of the companys general counsel: Any time an employee comes to us and says, I have an injury, and its your fault, we have a right to request and conduct the medical examination.565 Critics of BNSFs genetic testing discount this business necessity defense. First, the connection between Chromosome 17 deletion and CTS is not scientifically established and thus would probably not be admissible as evidence in any trial under FELA. Second, according to critics, the real aim of the railroad was to discourage any injured employee from bringing a suit. An attorney for the union observed, They show a guy a piece of paper that says, This is your genetic test, and this condition wasnt caused from your work, and they hope he will believe them.566 Many of the affected employees had no more than a seventh-grade education, and some did not speak English, making it more likely that they would accept the companys claims. Few employers will admit to genetic testing. A study conducted by the American Management Association in 2001 found only 2 among the 1,627 companies surveyed, although 16 percent said that they performed some medical tests to determine employees susceptibility to workplace hazards.567 One company, Brush Wellman, which tested prospective employees for a genetic condition that increases the danger of exposure to beryllium, did not look at the results but gave them to the applicants so that they could decide for themselves whether to accept employment.568 Although Brush Wellman thought that this was an innovative approach, critics question the value of this information if it is not based on valid science and if job applicants lack the ability to understand the risks. The result may be only unfounded fears. In April 2001, Burlington Northern settled the suit by agreeing to halt genetic testing and to pay 36 employees $2.2 million. The settlement short-circuited an opportunity for the courts to rule on whether genetic testing is prohibited by the ADA. Approximately half of the states have passed laws governing genetic testing, although their effectiveness is questionable. In 2008, President George W. Bush signed the Genetic Information Nondiscrimination Act, which regulates the use of genetic information by employers and health insurers.569 Among the prohibitions, employers may not legally use individuals genetic information in making decisions about hiring, firing, job placement or promotion. As science and technology advance, though, the implementation of all such laws is sure to become more difficult

1. What are the basic facts

2. What are the ethical issues

3. What are the alternatives