[co-author: Kristin Stokes]
Seyfarth Synopsis: While the plaintiffs’ bar has aggressively pursued class actions under the Biometric Information Privacy Act (“BIPA”) in recent years, these cases soon may be rivaled by the influx of class actions brought under the Genetic Information Privacy Act (“GIPA”), 410 Ill. Comp. Stat. Ann. 513/1, et seq. After GIPA’s 1998 enactment, only two cases were brought under the statute in nearly 25 years; however, in 2023, over 40 GIPA class action complaints have been filed in Illinois courts.
What is the Illinois Genetic Information Privacy Act (GIPA)?
GIPA was intended to facilitate voluntary and confidential genetic testing by providing protection from discriminatory use or disclosure of such information. In the employment context, GIPA bars employers from directly or indirectly acquiring “genetic testing or genetic information” from a prospective or current employee. See 410 ILCS 513/25(c)(1). In 2008, GIPA was amended to more closely conform to a later, federal analog—the Genetic Information Nondiscrimination Act (“GINA”). Both GINA and GIPA prohibit employer discrimination because of “genetic information” including: information about an individual or family member’s genetic test, request for genetic services, or manifestation of a disease or disorder. See 45 CFR 160.103. GIPA provides for a private right of action to “any person aggrieved by a violation of this Act . . . .” 410 ILCS 513/40.
This sudden influx of GIPA class actions likely are the result of steep statutory damages and a broad private right of action. While monetary damages are limited under GINA, GIPA contemplates no statutory cap and provides for damages of $2,500 per negligent violation or actual damages, whichever is greater. Moreover, an employer may be liable for $15,000 per intentional or reckless violation. 410 ILCS 513/40(a). GIPA even provides for significantly greater statutory damages than popular class action vehicle, BIPA. See 740 ILCS 14/20.
Current litigation also may be fueled by a recent decision in the case Bridges v. Blackstone Group, Inc., No. 21-cv-1091, 2022 WL 2643968 (S.D. Ill. 2022), establishing a broad class of possible claimants. In Bridges, plaintiffs brought a class action, alleging that Blackstone violated GIPA when it acquired Ancestry.com. The complaint was ultimately dismissed for failure to state a plausible violation of GIPA. Bridges, 2022 WL 2643968 at *2. However, the court first addressed whether the plaintiffs were “aggrieved persons” for purposes of bringing a claim. See 410 ILCS 513/40. The court adopted the Illinois Supreme Court’s definition of “aggrieved person” under BIPA. Accordingly, “an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights.” Bridges, 2022 WL 2643968 at *2 (citing to Rosenbach v. Six Flags Ent. Corp., 129 N.E. 3d 1197 (Ill. 2019)).
Relatedly, genetic information and post-offer medical exams recently crossed the radar of the EEOC. Last month, the EEOC settled a case for alleged unlawful post-offer medical exams that required applicants to divulge family history of cancer, diabetes, and heart disease. See EEOC Press Release, Dollar General to Pay $1 Million to Settle EEOC Disability and GINA Lawsuit, https://www.eeoc.gov/newsroom/dollar-general-pay-1-million-settle-eeoc-disability-and-gina-lawsuit (Oct. 19, 2023).
Perhaps spurred by the breadth of potential claimants, and in the wake of several Illinois Supreme Court plaintiff-friendly BIPA decisions (Cothron v. White Castle and Tims v. Black Horse) and the first BIPA jury verdict (Rogers v. BNSF Railway Co.), plaintiffs firms have doggedly filed more than 40 GIPA class actions pending in Illinois courts. Utilizing nearly identical format, these complaints allege that large employers and companies solicited, requested, or required employee disclosure of genetic information. Specifically, these cases pursue generous statutory damages for GIPA violations arising out of required pre-employment physical exams, interviews, and questionnaires seeking family medical history.
Implications for Employers
In light of trending GIPA class actions, Illinois employers should exercise caution when requiring employees to submit to physical exams, inquiries, or screenings. Although courts have yet to resolve many legal defenses to these claims, targets of GIPA lawsuits may be vulnerable to significant exposure as plaintiffs allege that they are not required to prove actual injury. Businesses should review current hiring policies and procedures for compliance with this state genetic privacy law.
