Although the Illinois Genetic Information Privacy Act (GIPA), 410 ILCS 513/1, et seq. was largely ignored by plaintiffs’ attorneys until this year, its substantial statutory penalties and recent case law make it an enticing option for plaintiffs’ class action lawyers. GIPA is no longer flying under the radar, with nearly 50 GIPA class actions filed since early 2023. Insurance companies and Illinois employers of all types should pay close attention to GIPA’s requirements to avoid exposure to significant litigation risk.
Background on GIPA
GIPA was originally enacted in 1998 to encourage voluntary and confidential genetic testing by limiting the involuntary disclosure of genetic information and prohibiting discriminatory use of genetic test results. The statute protects “genetic information,” which includes an individual’s genetic tests, an individual’s family members’ genetic tests, the manifestation of a disease or disorder in an individual or his family members, and any request for or receipt of genetic services. It prohibits anyone from disclosing the results of genetic tests and the identity of persons tested, except under limited circumstances. The statute also places additional restrictions on employers and insurers.
Restrictions on Employers
Employers cannot request, require, or purchase genetic testing as a condition of employment. GIPA also provides workplace protections similar to Title VII. Employers cannot use genetic information as a basis for changing the terms of employment, terminating employment, or adversely affecting the employee’s status. And employers cannot retaliate against an employee for bringing or participating in a GIPA claim. Employers and prospective employers are also prohibited from offering any pay or benefit in exchange for a person taking a genetic test. Even workplace wellness programs benefiting employees must meet certain requirements for use of genetic testing to be permissible.
Restrictions on Insurers
GIPA also prohibits insurers from using genetic information in certain ways. Most significantly, it prohibits insurers from using or disclosing genetic information for “underwriting purposes.” “Underwriting purposes” include determining eligibility for benefits, changing a deductible, computing premiums or contributions, applying pre-existing condition exclusions, and other activities related to the creation, renewal, or replacement of health benefits or insurance contracts. In connection with an accident or health insurance policy, GIPA prohibits insurers from seeking genetic information or using such information for a nontherapeutic purpose unless the information is voluntarily submitted and favorable to the individual.
Statutory Penalties & Class Action Filings
Employers, insurers, and others who violate GIPA face steep statutory penalties. GIPA imposes a statutory penalty of $2,500 on each negligent violation and a statutory penalty of $15,000 on each intentional or reckless violation. In addition, violators are on the hook for attorneys’ fees. GIPA provides a private right of action to “any person aggrieved by a violation.”
For the first two decades after GIPA was enacted, only a few GIPA cases were filed. As discussed in a previous legal alert, the Illinois Biometic Privacy Act (BIPA) was a more popular tool for plaintiffs’ firms, with thousands of BIPA cases being filed since 2015. BIPA was enacted in 2008, and sat relatively dormant for years, similar to GIPA. BIPA provides a private cause of action, and in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, the Illinois Supreme Court held that plaintiffs need not have suffered actual harm to bring a claim under BIPA. Instead, a mere procedural violation is sufficient to bring a claim. This development allowed for expansive BIPA class actions.
A recent case in the Southern District of Illinois, Bridges v. Blackstone Group, Inc., 2022 WL 2643968 (S.D. Ill. July 8, 2022), may have spurred the wave of GIPA cases by extending Rosenbach’s reasoning to GIPA. Like BIPA, GIPA provides a right of action to “any person aggrieved by a violation” of the Act “against an offending party.” Because BIPA and GIPA have identical enforcement provisions, the Bridges court found it appropriate to apply Rosenbach’s broad reading of “aggrieved person” to GIPA. So under GIPA, the court concluded, a plaintiff does not need to show actual injury; a procedural violation is sufficient. Whether Illinois state courts agree with this interpretation of GIPA remains to be seen. Since Bridges was decided in July, plaintiffs have filed more than 40 GIPA class actions.
Both employers and insurers have been targets. For example, dozens of complaints have been filed against employers that allegedly solicited, requested or required a pre-employment physical. These physicals allegedly included inquiries into plaintiffs’ family medical histories and genetic predisposition to certain diseases. The plaintiffs allege these inquiries violated GIPA’s requirement that employers not condition employment on a prospective employee submitting to genetic testing. Plaintiffs in these cases typically seek to represent proposed classes of people who applied for employment with, or were employed by, a company that asked for applicants’ genetic information within the past five years. These plaintiffs are typically seeking $15,000 for each violation. For large employers with major operations in Illinois, the potential exposure is massive.
A few large insurers have been named in putative class action complaints alleging the insurers improperly used genetic information as a part of their underwriting process. In these cases, the plaintiffs allege that they applied for life insurance policies, and, as a condition for coverage, were required to undergo a physical examination. These examinations allegedly covered topics like family medical histories and genetic predisposition to certain diseases. The plaintiffs allege this information was then used to determine their eligibility and premiums for life insurance coverage. The plaintiffs seek to represent classes consisting of all persons who applied for insurance coverage in Illinois from the insurer defendants and were requested to submit to a family medical history or other genetic test. They seek $15,000 in damages for each violation.
Conclusion
Certain insurers may be able to seek dismissal under statutory language that does not apply to other entities. But both insurers and employers should be preparing for a wave of GIPA litigation if they request family medical history as part of their insurance or employment application process. If BIPA litigation is any indication, the 50 GIPA cases filed so far this year is just the beginning of a trend. Bridges suggests GIPA’s right of action may be as broad as BIPA’s. And the maximum statutory damage under GIPA is triple the maximum under BIPA. With the Illinois legislature considering a bill that would further expand GIPA, companies need to get up to speed on GIPA immediately. Plaintiffs’ attorneys already have.
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