EEOC AND BNSF SETTLE GENETIC TESTING CASE UNDER AMERICANS WITH DISABILITIES ACT

WASHINGTON -- The U.S. Equal Employment Opportunity Commission (EEOC) and The Burlington Northern and Santa Fe Railway Company (BNSF) today announced a mediated settlement for $2.2 million of EEOC's lawsuit which alleged that BNSF violated the Americans with Disabilities Act of 1990 (ADA) by genetically testing or seeking to test 36 of its employees without their knowledge or consent.  The genetic test was part of a comprehensive diagnostic medical examination that BNSF required of certain employees who had filed claims or internal reports of work-related carpal tunnel syndrome injuries against the company.

"I am very pleased to announce the successful resolution of this matter through voluntary mediation," said EEOC Chair Cari M. Dominguez.  "Without the willingness of BNSF to mediate and bring prompt closure, this case could have taken years to litigate.  Instead, the parties were able to work collaboratively to bring this matter to an amicable resolution that satisfied the interests of all the parties concerned."  Chair Dominguez noted that the BNSF case was the first-ever EEOC litigation challenging genetic testing under the ADA.

The EEOC first learned about the genetic tests when several employees filed charges with the agency alleging that BNSF required them to submit to a medical examination which included a blood test for a specific genetic marker, and further alleging that certain employees faced possible discipline for refusing to submit to the medical examination.  In response to the charges, the EEOC sought a preliminary injunction in February 2001 to prohibit any further testing until such time as the EEOC had completed its investigation.  The preliminary injunction was amicably resolved by the parties in April 2001.

EEOC Commissioner Paul Steven Miller commended BNSF for its serious and thoughtful treatment of the Commission's claims.  He noted that: "While the EEOC did not find that BNSF had used genetic tests to screen out employees, employers should be aware of the EEOC's position that the mere gathering of an employee's DNA may constitute a violation of the ADA."

While BNSF denies that it violated the ADA or engaged in any form of workplace discrimination, it agreed to attempt to conciliate the charges with the EEOC through voluntary mediation.  Hunter Hughes of the firm of Rogers and Hardin in Atlanta served as the mediator.  Today's settlement is a result of that mediation effort and concludes the remaining issues with the EEOC.  Under the terms of today's settlement, BNSF has agreed it will not use genetic tests in required medical examinations of its employees in the future, will provide enhanced ADA training to its medical and claims personnel, and will have senior management review of all significant medical policies and practices.

In addition, BNSF has agreed to pay up to a total of $2.2 million to the employees who were directed to appear for the medical examination for claims related to the genetic tests, as part of a larger settlement which included partial payments for claims filed under the Federal Employers' Liability Act (an act which regulates a railroad employer's liability to its employees for on-duty injuries).  The settlement, which is filed in the U.S. District Court for the Eastern District of Wisconsin, is subject to court approval (Equal Employment Opportunity Commission vs. The Burlington Northern and Santa Fe Railway Company - Civil Action File No. 02-C-0456).

Matthew K. Rose, Chairman, President and CEO of BNSF, said:  "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.  As we said on February 12, 2001, at no time did the company use, or intend to use, any genetic test to screen our asymptomatic employees.  We are pleased with the Commission's acknowledgment, that BNSF did not engage in genetic screening of asymptomatic employees for any employment action, which should correct any public misimpression about this matter."

BNSF currently employs more than 39,000 people and is a leading transporter of coal, grain, intermodal containers and trailers, chemicals, metals, minerals, forest products, automobiles and consumer goods. Headquartered in Fort Worth, Texas, BNSF operates one of the largest railroad networks in North America. BNSF has 33,000 route miles covering 28 states and two Canadian provinces.  This network covers the western two-thirds of the United States, stretching from major Pacific Northwest and Southern California ports to the Midwest, Southeast and Southwest, and from the Gulf of Mexico to Canada. Further information about BNSF can be obtained at its Web site at http://www.bnsf.com.

EEOC is the federal agency responsible for enforcing the federal statutes which prohibit employment discrimination, including Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, sex, national origin, or religion; Title I of the Americans with Disabilities Act (ADA), which prohibits job discrimination in the private sector and state and local governments based on the existence or perception of a disability; the Age Discrimination in Employment Act, which prohibits discrimination against persons age 40 and over; and the Equal Pay Act (EPA), which prohibits wage discrimination based on sex.  Further information about the Commission is available on its Web site at www.eeoc.gov.