Union Pacific Loses Battles on Color-Vision Test.
Feb. 04, 2019 12:01PM
Must turn over vision testing data in job bias case
Occupational medicine, safety, disability experts OK
Union Pacific Railroad Co. must fork over information regarding its color vision testing that’s used as part of the company’s fitness-for-duty program, a federal judge ruled.
A proposed class action alleges the company’s fitness-for-duty program discriminates against workers based on disability and genetics.
The new “Light Cannon” vision test is part of the revamped FFD program Quinton Harris and other workers challenge in the suit. They allege that Union Pacific made changes to its FFD program in 2014 to require workers in some positions to disclose certain health conditions so that it may then automatically exclude them from duty.
The workers say the railroad ignores the medical opinions of doctors for the workers as part of the discriminatory scheme and instead relies on the view of its own physician even though he doesn’t examine workers himself. That violates both the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, the suit charges.
Union Pacific isn’t entitled to a court order protecting information about the new color-vision testing from disclosure because there’s evidence that the passage rate of workers was likely higher under its prior vision test and that the new test may not be scientifically reliable, the U.S. District Court for the District of Nebraska said.
The Feb. 1 decision by Judge Joseph F. Bataillon also includes other evidentiary rulings in the case. These include that the workers may present expert evidence from:
an occupational medicine doctor regularly involved with FFD determination, who reviewed Union Pacific’s policies, memos, and procedures and found that at least 3,145 workers weren’t cleared to work by the railroad’s doctor or were issued work restrictions after being required to have their fitness for duty tested;
a transportation industry safety consultant as to whether the railroad’s interpretation and enforcement of federal safety requirements for railroad workers “is far more restrictive” than it needs to be, provided the workers can first lay a foundation for his testimony; and
a long-time Railroad Retirement Board employee regarding that agency’s occupational disability annuity process and, if a sufficient foundation is laid, whether Union Pacific adopted its new FFD program to rid its payroll of more expensive, senior workers.Hildebrand McLeod Law Firm, Nichols Kaster Law Firm, Atwood Holsten Law Firm, and Moody Law Firm represent the proposed class. Baird Holm Law Firm represents Union Pacific.
The case is Harris vs UPRR 2019 BL 33150, D. Neb., No. 8:16CV381, 2/1/19 .