Genetic testing and employment litigation.

• Position: Is There a Pink Slip in Your Genes? Genetic Discrimination in Employment and Health Insurance - Transcript

I have only a couple of comments to make that relate to litigation hurdles and how to achieve this balance, and the first thing I want to talk about, following the wonderful presentation is, in fact, we probably don't in some ways even need a new cause of action.

This is going to sound so garden variety and hum-drum. Well, one of the claims we had in the Burlington Northern Santa Fe Railroad (2) was fraud. Imagine that, the common variety of fraud. What was it? The Burlington Northern has strategic (inaudible) goals to avoid paying occupational illness or injury claims of its employees.

It has a goal to avoid reporting occupational illnesses or injuries as required by the Federal Railway Administration. It has the goal of being exempted or excused from governmental ergonomic rules or the expense of or dislocation associated with compliance with such rules.

And to accomplish these goals, the Burlington Northern has and is using means which are unlawful separately and in combination by engaging a set of, and a concerted set of actions against the employees which constitute common-law fraud.

They knowingly made false and misleading statements, including but not limited to material omissions. If they don't tell you they're doing genetic testing, they've made a material omission, which is actionable as if you had said something directly false to the employees in connection with their participation in medical testing programs.

They knowingly induced physicians to make material omissions in medical diagnoses, in treatment plans, and in statements. The employees, of course, were, have been and continue to be directly and indirectly damaged by these fraudulent actions. Common variety of fraud, and I think it's perfectly legitimate, and I think we would have prevailed on that claim if we bad needed to.

So I agree with you, common law is a great way to go. One of the problems with trusting judges is you have to trust judges. That's not always a good thing to do.

I personally would prefer to trust a jury every time. But having said that, for those of you who are not lawyers, you should a be aware that the U.S. Supreme Court some years ago in a case called Daubert (3) made an effort to preclude the use of what it called "junk science" from being used in the court, because every time there was a case, here came some expert, an expert on dog saliva on window sills. There was an expert for that. I mean, you can get an expert on astrological meaning. You can have an expert on anything.

The court is saying, "Look, we got to cut down on his stuff, and so they set some requirements for...