Term Paper on "Burlington Northern Railway"

Term Paper 5 pages (1718 words) Sources: 1+

[EXCERPT] . . . .

Settlement at Burlington Northern Railway (BNR) Fair?

"No fair - you cheated!" This complaint often heard, when a child feels he lost because someone didn't play by the rules, embodies one perception of the word, "fair." Concepts of this multifaceted word, however, involve more than childhood thoughts and feelings. During the quest researching reports regarding, "Was the Settlement at BNR "Fair?" The adult meaning of the word, "fair," had to first be clarified. Some meanings of the word "fair," reported as: denoting something to be "of moderately good quality but less than excellent:

acceptable, adequate, all right, average, common, decent, fairish, goodish, moderate, passable, respectable, satisfactory, sufficient, tolerable, as well as free from bias in judgment: disinterested, dispassionate, equitable, fair-minded, impartial, indifferent, just, nonpartisan, objective, square, unbiased, unprejudiced," could be utilized to confirm the settlement was not fair.

On the other hand, other meanings of fair, including: "less than excellent:, respectable, satisfactory, sufficient, tolerable... Just to all parties: equal, equitable, even, evenhanded..." could be adopted to confirm this writer's stance. This writer agrees with EEOC (U.S. Equal Employment Opportunity Commission) Chairwoman Ida L. Castro regarding the settlement for $2.2 million for Burlington Northern Railway's "violation of the Americans with Disabilities Act of 1990 (ADA)" by reportedly seeking to test and/or genetically testing 36 BNR (Burlington Northern Railway) employees without their knowledge or consent was fair. The EEOC enforces federal statutes prohibiting employment and/or wage discrimination not only based on sex, national origin, race, color, or religion but also makes job discrimination in the private sector and state and local governments based on age or the existence or perception of a disability illegal. This first of its kind settlement came two months after the EEOC petitioned the court, requesting BNR be "ordered to halt genetic tests on blood taken from employees who had filed claims for work-related injuries based on carpal tunnel syndrome." Regarding the court's decision, Castro contends, this "sends a clear message about what not to do to the entire employer community," said. "I think [the settlement] will help experts and laypersons to understand the ramifications of what will be up-and-coming issues concerning how to best use this new science." Wylie Burke, head of the department of medical history and ethics at the University of Washington in Seattle also agrees, "This was the right result. It gives people reassurance that the potential harms of genetic testing are going to be taken very seriously in our society." The primary issue in question involved diagnostic genetic testing as a component of BNR's medical examination for particular employees who filed reports or claims against the company of work-related carpal tunnel syndrome injuries. After a 45-year-old, Nebraska maintenance worker from filed for compensation for his reported carpal tunnel syndrome, BNR "threatened to fire him when he refused to allow a physician to do a blood test, according to the EEOC lawsuit. The worker's wife, a nurse, found out about the tests after asking the doctor why he would need to take so much blood for the sample. Until then, the company had been conducting the genetic tests without employees' knowledge." The tests, it was determined, were to identify workers genetically inclined to develop CTS, and perhaps deny workers' compensation benefits to these particular employees. During the course or resolving the genetic testing issue, one doctor's answers to questions which arose in the case helped deem the conclusion the 2001 BNE settlement to be fair. Questions such as: "Could a railroad compel a man on the subject of being fired if he refuses to agree to a medical examination which does not comport with common sense, and which was not consistent with medical standards? Could that employee be fired for not going?" The answer is, "Yes, it's within the realm of possibility." The doctor answering these questions knew his ethical responsibility. He also knew about the provision that states, "You cannot engage in genetic testing without a written informed consent,' however, this particular doctor chose not to adhere to this professional decree. Questioning during the course of this trial also revealed that BNR's motives were geared toward not paying injury claims, not to try to secure a solution that would prove to be in the best interest of injured workers. A letter mailed by BNR to o local medical providers advised: "We are sending you a kit to do blood samples for genetic tests for pressure palsy. It's going to be sent to a reference laboratory with kits provided by us. Please leave any decision about work-relatedness of these injuries to us....We only want you to confirm the diagnosis of carpal-tunnel and evaluate evidence of contributing health conditions, but not work-related."

Several scientists questioned regarding the tests purportedly to evaluate contributing health conditions for carpal-tunnel were reported to be baffled by the BNA's genetic testing, as the condition in question is rare. The test sought to identify a genetic defect that may or may not predispose an individual to some types carpal tunnel syndrome, "a musculoskeletal disorder that causes pain and numbness in the hand or wrist." Scientists also disagree whether the test used by BNR was and accurate indicator of predicting a person would develop carpal tunnel syndrome.

Ultimately, the legal matter with BNR was resolved May 8, 2002, through voluntary mediation as Burlington Northern and Santa Fe Railway Co. agreed to pay $2.2 million to 36 employees. Hunter R. Hughes, a partner in the Atlanta firm of Rogers & Hardin, served as mediator in the BNR case. Hughes regularly serves as the mediator in numerous employment class actions.

Hughes concluded, "Burlington admitted no wrongdoing and there has been no determination that what it did was illegal. What it did according to Burlington was fairly benign," said Hunter Hughes, mediator of the settlement proceedings." EEOC Chair, M. Dominguez, said the "BNSF case was the first-ever EEOC litigation challenging genetic testing under the ADA, who unknowingly were part of genetic sampling. The railroad denies that it violated the law or engaged in discrimination.

In the settlement, BSNF agreed to refrain from utilizing genetic tests in employees' medical exams. The company will also offer more "Americans with Disabilities Act (ADA) training to its medical and claims employees, and will have management review the company's major medical policies and practices." Test samples, it was determined were to be returned to the employee, while all genetic tests' references in medical records would be purged.

EEOC officials confirm the settlement is fair and also confirm it to warn other employers that genetic testing to discriminate against workers is unlawful as it decisions based on genetic and similar testing violates the ADA (Americans with Disabilities Act). Several other recourse avenues noted in conjunction with ADA to be available for employees who believes their rights have been violated by the use of genetic testing in the workplace: The Fourth Amendment's constitutional prohibition on illegal searches and seizures and Title VII of the Civil Rights Act of 1964. Individual state legislation also prohibits workplace discrimination contingent on genetic tests' results. "This landmark settlement provides important new protection against the emerging threat of genetic discrimination," Senator Edward Kennedy (Democrat - Massachusetts) noted after the BNR decision was announced. The fairness aspect of the BNR settlement that declares an employer "shall not directly or indirectly require its employees to submit blood for genetic tests, nor shall it analyze any blood previously obtained, 1 will most likely continue to evoke varying interpretations. In the end, however, the resultant opinions will, as in the case for this writer, be contingent upon the personally determined meaning of the word, "fair." The determination will also most likely be colored by whether or not there is any hint of the childhood protest against unfairness, "No fair - you cheated!"

Bibliography

BNSF and EEOC Settle Genetic Testing Case Under Americans with Disabilities Act "V.

2006)

http://www.bnsf.com/media/news/articles/2002/05/2002-05-08-a.html.

EEOC AND BNSF SETTLE GENETIC TESTING CASE UNDER AMERICANS WITH DISABILITIES ACT http://www.eeoc.gov/press/5-8-02.html.

French. (2002). The Most Recent Development: An Overview GENETIC TESTING IN THE WORKPLACE: THE EMPLOYER'S COIN TOSS Duke L. & Tech. Rev. 0015.

Genetic Testing and Employment Litigation." Journal of Law and Health 16, no. 1 (2001): 21+. http://www.questia.com/PM.qst?a=o&d=5002058497.

Hunter R. Hughes, III." (2006). Retrieved on 03.06.06 from: Rogers & Hardin LLP

http://www.acctm.org/hhughes/.

Laurie, Graeme. Genetic Privacy: A Challenge to Medico-Legal Norms. Cambridge, England:

Cambridge University Press, 2002. http://www.questia.com/PM.qst?a=o&d=105363095.

Roget's II: The New Thesaurus, Third Edition. (1995). Houghton Mifflin Company.

Michael, R. (2002). "Genetic Testing and Carpal Tunnel Syndrome Settlement Final." Retrieved on 03.06.06 at http://www.ergoweb.com/news/detail.cfm?print=on&id=525

Schafer, Sarah. (2001). Washington Post. Retrieved on 02.06.03 from:

GENETICTESTINGINTHEWORKPLACETHEEMPLOYER'SCOINTOSS.zipwashingtonpost_comRailroadAgreestoStopGene-TestingWorkers.htm.

Roget's II: The New Thesaurus, Third Edition. (1995). Houghton Mifflin Company.

2. Ibid.

3. EEOC AND BNSF SETTLE GENETIC TESTING CASE UNDER AMERICANS WITH DISABILITIES ACT http://www.eeoc.gov/press/5-8-02.html.

4. Ibid.

5. Schafer, Sarah. (2001). Washington Post. Retrieved on 02.06.03 from: GENETICTESTINGINTHEWORKPLACETHEEMPLOYER'SCOINTOSS.zipwashingtonpost_comRailroadAgreestoStopGene-TestingWorkers.htm.

6. Ibid.

7. Ibid.

8. EEOC.

9. Schafer.

Genetic Testing and Employment Litigation," Journal of Law and Health 16, no. 1 (2001), http://www.questia.com/PM.qst?a=o&d=5002058497.

11. Ibid.

14. Michael, R. (2002). "Genetic Testing and… READ MORE

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