Testimony of Mr. Gary Avary, Member of the Brotherhood of Maintenance of Way Employes and Employee of Burlington Northern Santa Fe Railroad Company

Before the Subcommittee on Employer-Employee Relations

July 24, 2001

My name is Gary Avary, and I’m from Alma, Nebraska, population 1,200. I’m 45 years old, and have been married for 28 years. Janice and I have three daughters and one grandson. I have worked for Burlington Northern Santa Fe railroad for 27 years in the track and maintenance department, and am a 27-year member of the Brotherhood of Maintenance of Way Employes (BMWE) union.

In September 2000 after working on several derailments over a short period of time I started having pain and numbness in my right hand specifically in the fingertips. This made it very difficult to do many aspects of my job safely since derailment repairs require many continuous hours of using high impact, vibrating tools.

On September 13, I saw a hand/shoulder/arm specialist and had extensive testing done. I was diagnosed with carpal tunnel syndrome or CTS. This is swelling and scarring of the tunnel in the wrist that carries the nerves to the hand. CTS is caused by extreme temperature changes and continuous repetitive activity.

About a week later, the railroad authorized surgery and on September 28, I had laparoscopic repair done. Three weeks later, I was back at work with 100% use of my hand.

On October 24, the railroad’s medical department requested all of my medical records pertaining to my CTS exams and surgery to further evaluate workplace responsibility. During this time my medical insurance paid for the surgery and BNSF paid all expenses not covered by the insurance plan.

In December I received a registered letter from the company notifying me of a required mandatory medical exam which would include X-rays, nerve tests, and laboratory tests.

When my wife and I found out from a co-worker that as part of his test the lab took seven vials of blood, we started questioning. My wife, a Registered Nurse, started making phone calls to find out what these tests were and was told "accidentally" that a genetics test would be included.

She was told by several people – an appointment coordinator, a secretary, and the Chief Medical Officer at BNSF – that this exam was mandatory according to a corporate internal rule 26-3 regarding mandatory medical exams. By not going to this exam, I would be considered an insubordinate employee and fired.

My wife then contacted an FELA attorney who represents BMWE union members to see if this was legal. It was not. Then we contacted the EEOC for job protection for me. I am more fortunate than most people in the workforce because I have the union to support, protect, and guide me through this. I did not go to the company required doctor’s appointment on January 5, 2001, so in turn the railroad notified me by registered letter that my behavior was under disciplinary investigation and set a date for a hearing on that matter. If you work for BNSF you know this means that you will be fired. After attempts by the union to cancel this investigation, the railroad changed the date but did not cancel the hearing until the EEOC and a Federal judge ordered them to do so. I still work for BNSF under protection of the EEOC whistle blowers act.

Since this began, my wife and I have been doing extensive research into the issue of genetic discrimination. We have talked to individuals from all over the U.S. who have lost their jobs and/or insurance coverage because of actual or potential diseases.

We are strong supporters of H.R. 602 and S. 318 introduced by Congresswoman Louise Slaughter and Senator Thomas Daschle respectively. They have been trying to get genetic nondiscrimination protection passed for five years. This type of discrimination has been happening all along, but no one wanted to believe it. A law that protects all federal employees from this type of testing and discrimination was passed during the Clinton Administration.

I think it is time all Americans are protected from this type of mandatory testing and discrimination.

What happened to me should not happen to anyone especially in the United States. It is a direct infringement on our fundamental right to be who we are. No one can help how they are put together, only God knows that, and your employer, insurance companies or anyone else has no business of that knowledge. That information should be shared only if you voluntarily request the testing. Then it can be used to your benefit. It should not be used against you and your family for hiring and firing practices, or acceptance and/or denial into insurance programs.

Please help us get strict federal laws passed so that this type of testing and discrimination can’t happen to anyone else in the future.