While many have heard of Illinois’ Biometric Information Privacy Act, or “BIPA,” Illinois has a similar, although less infamous, statute covering genetic information – the Genetic Information Privacy Act or “GIPA.” While GIPA has existed since 1998, it has been litigated very sparsely. Recently, in a key development in privacy law, United States District Court for the Northern District of Illinois Judge Sharon Coleman issued two of the first federal decisions applying a substantive analysis to key provisions of GIPA in the employment context.

Both cases – Taylor v. Union Pacific Railroad Company and McKnight v. United Airlines, Inc. – involved employees who, as part of their application for employment, were required to get medical physicals. The plaintiffs alleged that during those medical exams, they were asked about their family medical history, including whether others in their families had certain diseases such as cancer, heart disease, and diabetes. The plaintiffs alleged that providing this information was a condition of their employment and preemployment application in violation of GIPA. Notably, this section does not require any discrimination or “misuse” of the information; it simply bars the solicitation of the information as a condition of employment (which is broader than other similar statutes).

While the cases address many arguments under GIPA, below we discuss some of the key points.

What is GIPA?

GIPA governs the collection of “genetic information” by employers, insurers, labor unions and organizations, and other entities. The Act was designed to prevent employers and insurers from using genetic testing and information as a means of discrimination. GIPA provides that genetic testing and information derived from it is “confidential and privileged.” Relevant to the two recent cases, GIPA restricts when and how current and prospective employers can request and use “genetic information.” Specifically, the plaintiffs based their claims on GIPA’s prohibition on employers “soliciting, requesting, requiring or purchasing. . .genetic information of a person or a family member of the person . . . as a condition of employment, or preemployment application . . .”

Does Family Medical History Constitute “Genetic Information?”

Defendants in both cases asserted that family medical history did not qualify as “genetic information” under GIPA. The court disagreed. GIPA relies on the definition of “genetic information” under the Health Insurance Portability and Accountability Act (HIPAA), which includes “the manifestation of a disease or disorder in family members of such individual.” The court noted a lack of relevant caselaw interpreting GIPA, and looked to interpretations of GIPA’s federal counterpart – the Genetic Information Nondiscrimination Act (“GINA”) – and other resources as instructive to interpreting GIPA. The court observed the parallel language in both statutes regarding “the manifestation of a disease or disorder,” and found that as in GINA, this language was limited to diseases and disorders “suggesting an individual’s genetic predisposition” to the condition. Thus, requesting family medical history relating to cancer, heart disease, diabetes, and the like – which have a hereditary component – was a request for “genetic information” under GIPA.

“Aggrieved Person”

In Taylor, the defendants claimed that the plaintiffs did not qualify as “aggrieved persons” under GIPA. The court, relying on the Illinois Supreme Court’s opinions under BIPA, which uses the same term (“aggrieved persons”), disagreed finding that GIPA provides similar privacy rights as BIPA and that, therefore, alleging a violation of those rights was sufficient to allege that the plaintiffs were “aggrieved persons” under GIPA.

The court also found that the plaintiffs had standing under Article III of the United States Constitution based on Union Pacific’s alleged intrusion into the plaintiffs’ “private domain” by asking for genetic information as a condition of employment.

Extraterritoriality of GIPA

In the McKnight case, Ms. McKnight was a resident of Maryland and had applied for a job with United working in Virginia. The defendants therefore argued that GIPA did not apply to her. The court first noted that GIPA, by its terms, did not have extraterritorial effect. The court stated, however, that GIPA could apply if “the circumstances that relate to the disputed transaction occurred primarily and substantially in Illinois.” The court reviewed the relevant contacts. Focusing on the injury at issue, the court credited Ms. McKnight’s argument that the solicitation of her information came from people located in Illinois and held that, at least at the motion to dismiss stage, Ms. McKnight’s allegations supported extraterritorial effect. The court did not preclude revisiting the issue based on a fuller factual record at summary judgment.

Statute of Limitations to Certain Sections of GIPA

The parties in Taylor also argued about what statute of limitations applies to claims under GIPA. The plaintiffs argued for the five-year “catchall” limitations period under Illinois law citing Illinois Supreme Court opinions on the statute of limitations under BIPA as well as a recent Illinois Appellate Court ruling applying the five-year limitations period to GIPA. The defendants, in contrast, argued for the shorter one- or two-year limitations periods governing either “publication of matter violating the right of privacy” or personal injury torts respectively. The court ultimately agreed with the plaintiffs and applied the five-year statute of limitations. In doing so, the court again cited the Illinois Supreme Court’s rulings on the BIPA statute of limitations. The court, however, noted that its ruling was limited to the specific GIPA section relied on by the plaintiffs (Section 25(c)(1)) and that it was possible that different statutes of limitations could apply to other sections.

Conclusion

The above are just a few of the arguments addressed by the Northern District of Illinois in these two cases. The court addressed a myriad of other issues including what use or misuse of genetic information is required, whether the plaintiff had to plead around GIPA’s exceptions, whether the situations involved might qualify for an exception, and what plaintiffs are required to plead regarding damages. The court also touched on the possibility that other federal statutes might preempt GIPA.

Overall, given the prevalence of the use of medical examinations in employment and pre-employment applications, the longer statute of limitations applied by the court, and the possibility of liquidated damages of $15,000 per violation, these decisions could encourage more lawsuits. While there are currently no Illinois Appellate cases addressing these issues, there are a significant number of pending GIPA cases in the state and federal trial courts that could result in conflicting rulings. In the interim, the significant risk of employer liability is very real. Companies should review their hiring processes and procedures along with the requirements of GIPA. Clark Hill attorneys are available to assist in performing those reviews and to provide support if you are served with a GIPA lawsuit.