Over the last decade, Illinois employers have been faced with a rash of class action lawsuits under the Biometric Information Privacy Act (BIPA), causing many employers to pay hefty sums and alter their biometric timekeeping procedures. Now, a different statute may be gaining steam as the new lawsuit “du jour.”

Illinois’ Genetic Information Privacy Act (GIPA) governs the collection and use of genetic information. 410 ILCS 513/1, et. seq. Despite having been in effect for over two decades, in the last year, there has been an uptick in class action lawsuits filed against employers for GIPA violations. This upward trend is likely the result of recent success by class action plaintiffs under BIPA, which has yielded multi-million dollar verdicts and settlements against employers who unknowingly run afoul of its provisions. GIPA may be heading in the same direction.

Enacted in 1998, GIPA prohibits companies from using genetic testing and information to make employment decisions. Specifically, it states that an employer may not directly or indirectly do any of the following:

• Request genetic testing or information from a person or their family members as a condition of employment; 
• Affect the terms, conditions, or status of employment based on an individual or their family members’ genetic testing or information;
• Adversely affect an individual’s employment status due to the individual or their family members’ genetic testing or information; and
• Retaliate against an individual alleging a violation of the Act. 

The Act also provides that employers may not share any genetic information collected without first obtaining the individual’s written consent. Protected genetic information includes the following: 

• An individual’s genetic tests; 
• The genetic tests of the individual’s family members (which include first-, second-, third-, and fourth-degree relatives); 
• The manifestation of a disease or disorder in the individual’s family members; 
• Any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by the individual or any family members; and 
• Information concerning a fetus carried by, or an embryo legally held by, the individual or any family member. 

Genetic information does not include information about an individual’s sex or age. 

In a typical GIPA case, plaintiffs allege that their employer or prospective employer violated the law by requiring them to undergo a pre-employment physical, during which the health professional conducting the physical asked questions about the plaintiff’s family medical history. Thus, because the job was contingent on the physical, the employer indirectly required the disclosure of protected genetic information.

For example, in Berry et al. v. Chicago Transit Authority, No. 2023-CH-07795 (Cook Ctny, Aug. 28, 2023), the plaintiffs alleged they were required to submit to a pre-employment physical, during which an outside medical provider asked them to provide their family medical history. Notably, the complaint did not allege that the employer instructed the medical provider to collect any genetic information or was even aware that the information was collected. Nonetheless, the plaintiffs claimed the employer violated GIPA because the plaintiffs’ hiring was conditioned upon successful competition of the physical, in which they were asked to provide genetic information to the healthcare provider.  

Similar to BIPA, GIPA authorizes statutory penalties for each violation and includes a fee-shifting provision, making GIPA lawsuits a lucrative pursuit for plaintiffs’ attorneys. Notably, the penalties are even higher than those set forth in BIPA. If successful, GIPA plaintiffs may recover $2,500 for each negligent violation and $15,000 for each reckless or intentional violation, in addition to their reasonable attorney’s fees and costs.

Illinois employers will likely continue to see a surge in GIPA class actions due to the significant statutory damages available to successful plaintiffs and the recent success of BIPA claims. In light of the growing number of lawsuits filed under GIPA, if your business requires pre-employment physicals or otherwise collects, uses, or handles genetic information, it is critical to ensure compliance with the law.