In an important privacy law development, United States District Court for the Northern District of Illinois, Judge Sharon Johnson Coleman, has issued two of the first federal decisions applying a substantive analysis to provisions of the Illinois Genetic Information Privacy Act, 410 ILCS 513/1 et seq. (“GIPA”) as it relates to employment-related examinations.

By way of background, GIPA governs the collection of “genetic information” by employers, labor organizations, certain insurers, and other entities. GIPA prohibits, among other things, employers from requiring applicants or employees to disclose their “genetic information” as a condition of employment.

In two separate cases, Judge Coleman denied motions to dismiss filed by the defendants, United Airlines and Union Pacific Railroad, in proposed class actions cases. McKnight v. United Airlines, Inc., Case No. 23-cv-16118, and Taylor v. Union Pacific Railroad Co., Case No. 23-cv-16404. The allegations in both complaints asserted that the defendants violated the applicants’ privacy rights under GIPA by requiring them to disclose their family medical history (including family history about high blood pressure, cancer, diabetes, and heart disease) during physical examinations required for hiring.

Judge Coleman made four key findings interpreting GIPA:

1. GINA, the federal Genetic Information Nondiscrimination Act of 2008, is instructive to interpreting GIPA. In relying on parallel language, the court found “genetic information” with respect to the “manifestation of a disease in family members” of individuals was limited to diseases or disorders suggesting an individual’s genetic predisposition to the condition. Therefore, family history of high blood pressure, cancer, diabetes, and heart disease qualify as “genetic information.”
2. GIPA prohibits indirectly or directly soliciting, requesting, or requiring genetic information as a condition of either (1) employment or a (2) preemployment application (i.e., an individual may not even need to be hired or even offered employment under this interpretation). The judge also found the lack of an option to opt-out of the exam made it plausibly that applicants would have been excluded from the hiring process if they did not complete the exam. Therefore, the exam was a “condition” of employment or preemployment, which GIPA prohibits.
3. GIPA does not apply extraterritorially in theory, but facts are needed to understand where the injury occurred. Even though one of the plaintiffs resided in Maryland and may have completed her examination outside of Illinois, further factual development was needed to determine where her “injury” occurred, including whether it “had a connection” to Illinois, apart from the actual examination.
4. Caselaw interpretating BIPA informs certain aspects of GIPA. The Court made three findings by relying on Biometric Information Privacy Act (“BIPA”) caselaw: (1) the plaintiffs had standing to bring their GIPA claims in either state or federal court because they were “aggrieved” due to the defendants improperly requesting their genetic information (Rosenbach v. Six Flags Ent. Corp., 2019 IL 123186); (2) a five-year limitations period applied to GIPA claims (Tims v. Black Horse Carriers, Inc., 2023 IL 127801); and (3) although conflicting caselaw exists, the plaintiffs did not need to plead additional facts, at this stage, to show they are entitled to heightened damages (Sosa v. Onfido, Inc., 600 F. Supp. 3d 859 (N.D. Ill. 2022)).

As a whole, Judge Coleman found “GIPA is meant to regulate the confidentiality and nondisclosure of genetic information along with genetic-based discrimination.” Judge Coleman recognized that GIPA has numerous exceptions and certain federal laws may preempt GIPA but found the arguments were underdeveloped.

Judge Coleman also cited to a recent decision by another judge in the Northern District addressing a GIPA claim. Weller v. Sagility, LLC, Case No. 23-cv-15626. However, Weller only addressed whether the plaintiff’s GIPA claim was too “vague” and in a two-paragraph order denied the defendant’s motion to dismiss.

The Impact of Recent Rulings

These decisions may lead to an uptick in GIPA filings. No Illinois appellate court has addressed these issues yet but there are dozens of GIPA cases that have been pending in state and federal trial courts. Several cases are expected to be ruled upon in the coming months, some of which may even result in conflicting rulings by different courts.

In the meantime, Illinois employers that request Illinois and non-Illinois applicants or employees to obtain any medical examinations should be aware of this developing litigation and consult counsel regarding their practices. GIPA is a privacy statute that carries hefty statutory damages, even higher than BIPA: $2,500 per negligent violation and up to $15,000 per intentional or reckless violation. This damages model can result in significant employer liability if best practices are not followed.