Illinois GIPA Lawsuits: Did an Employer Illegally Ask for Your Genetic Information?

Attorneys working with ClassAction.org are investigating whether class action lawsuits can be filed against certain employers in Illinois for potentially violating job applicants’ privacy.

Specifically, they believe some companies may have violated Illinois’ Genetic Information Privacy Act (GIPA) by asking prospective employees about their and their families’ health histories or requiring that they take a physical exam as part of the application process. The GIPA explicitly prohibits employers from requesting genetic information from a person or their family members as a condition of employment or preemployment application.

What Is the Genetic Information Privacy Act?

The GIPA, a state-specific counterpart to the federal Genetic Information Nondiscrimination Act (GINA), aims to protect consumers from non-consensual disclosure of their genetic information as well as discrimination based on that information, including by employers.

The law covers “genetic information” as defined in the Health Insurance Portability and Accountability Act (HIPAA), which includes a person’s genetic tests, the genetic tests of a family member, the manifestation of a disease or disorder in an individual’s family members or any request for or receipt of genetic testing services by the individual or their family members.

Under the GIPA, employers are essentially barred from obtaining workers’ genetic information in most contexts and prohibited from hiring, firing or limiting a worker based on their genetic information.

For example, according to the U.S. Equal Employment Opportunity Commission (EEOC), genetic information discrimination could include an employer “[refusing] to hire an applicant because her grandmother has breast cancer and the employer is afraid that the applicant will be diagnosed with breast cancer, causing the employer’s health insurance costs to increase.”

The GIPA also prohibits employers from retaliating against anyone who alleges a violation of the law or “[participates] in any manner in a proceeding under this Act.”

The statute allows consumers to recover damages of $2,500 for violations or $15,000 for intentional or reckless violations.

Can an Employer Ask for Medical Information or Require a Physical Under the GIPA?

The GIPA does not explicitly prohibit employers from asking health-related questions or requiring that prospective employees undergo a physical examination. It does, however, say that an employer cannot directly or indirectly solicit, request, require or purchase a person’s or their family’s genetic information as a condition of employment or preemployment application. Employers are also prohibited from changing the terms or conditions of a person’s job or employment opportunity based on their or their family’s genetic information.

Several recent lawsuits claim it is a violation of the GIPA for an employer to ask a job applicant about their family’s medical history—such as whether anyone in their family has cardiac problems, cancer, diabetes or other potentially genetic conditions—since the answers could contain genetic information. According to these lawsuits, it’s also possible that a preemployment physical exam or a questionnaire about the job applicant’s personal health could violate the GIPA if it reveals genetic information.

It’s important to keep in mind that the GIPA only applies to Illinois residents and only covers genetic information. In general, employers are permitted to ask job applicants whether they can perform the job at issue, but federal and state laws, including the GINA and GIPA, place certain restrictions on broad questions about a person’s personal or family medical history.

How a Class Action Lawsuit Could Help

A class action lawsuit could help compensate Illinois consumers who may have been illegally asked to provide their genetic information when applying for a job. It could also force the companies at issue to change their hiring practices to ensure that consumers’ genetic privacy is protected.

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