By Danielle Kays, Paul Yovanic, Jr., and James Nasiri
Seyfarth Synopsis: A group of job applicants recently filed a lawsuit against Ford Motor Company asserting violations of the rarely-cited Illinois Genetic Information Privacy Act (“GIPA”). In the complaint, the plaintiffs allege Ford improperly asked applicants about their family medical histories and used this data in the Company’s hiring decisions. This unique claim is part of the growing trend and expansion of privacy litigation claims. While lawsuits are not often filed under the GIPA, businesses operating in Illinois should pay close attention to the developments in this case and allow it to serve as a reminder to review policies for compliance with this state genetic privacy law and privacy laws in general.
What is the Illinois Genetic Information Privacy Act?
The GIPA (410 ILCS 513 et seq.) is a rarely-cited law that was enacted by the Illinois Legislature in 1998. The primary motivating factor behind the enactment of the GIPA was the invention and rising popularity of genetic testing in the 1990s. According to its legislative findings, the GIPA’s general purpose is to protect an individual’s genetic information from being disclosed without consent or from being used in a discriminatory manner.
In 2008, Congress enacted the Genetic Information Nondiscrimination Act (“GINA”). Following the enactment of this federal law, Illinois amended the GIPA to mirror several of the requirements contained in the GINA. Notably, the GIPA adopted the federal definition of “genetic information,” which includes information such as an individual’s genetic tests, the genetic tests of family members, or a history of a certain disease or disorder in an individual’s family.
Illinois’ GIPA also places various requirements on employers, some of which include restricting: 1) requests for genetic information as a condition of employment; 2) any employment decisions being affected by an individual’s genetic information; and 3) retaliation against an employee who asserts a violation of the Act. Importantly, the GIPA–similar to its more commonly known counterpart, the Illinois Biometric Information Privacy Act (“BIPA”)–provides a private right of action to “any person aggrieved by a violation of this Act . . . .” The GIPA also contains a damages model allowing for $2,500 per negligent violation and $15,000 per intentional or reckless violation.
Job Applicants File Suit Against Ford under the GIPA
In Page v. Ford Motor Co., the plaintiffs (three job applicants, two who ultimately were hired by the Company) claim that Ford solicited individuals’ genetic information during the hiring process in violation of Section 513/25(c)(1) of the GIPA. More specifically, the plaintiffs allege that Ford required job applicants to submit to a pre-employment physical as a condition of employment. During this physical, the plaintiffs claim that Ford’s medical provider asked them to disclose their families’ medical history, which they allege is a form of genetic information.
The plaintiffs further allege that Ford made this request without first obtaining informed consent or a written authorization from the applicants. According to the plaintiffs, Ford “requests this family medical history information for the purposes of evaluating the risk that the individual may have inherited genetic conditions from family members, and then improperly uses that information when making its hiring decisions and staffing assignments.” The plaintiffs identify this practice as “an effort to avoid risk and/or liability for workplace injuries and/or deaths caused by genetic conditions[.]” In their complaint, the plaintiffs seek the maximum statutory damages of $15,000 per intentional violation, as well as declaratory and injunctive relief.
Implications for Employers
This lawsuit asserts novel and broad GIPA claims and should serve as caution for Illinois companies that collect certain types of medical information during the hiring process. The GIPA is framed to include several forms of medical and genetic information, and its damages structure allows for a significant recovery by individuals asserting claims under the Act. Moreover, the plaintiffs in Page claim that–similar to the BIPA–individuals filing suit under the GIPA need not prove that they suffered actual damages in order to recovery. Therefore, businesses should monitor this litigation and its implications, as well as review their current hiring policies and procedures. For more information about the GIPA and how genetic information laws may affect your business, contact the authors Danielle Kays, Paul Yovanic, Jr., and James Nasiri, your Seyfarth attorney, or Seyfarth’s Workplace Privacy & Biometrics Practice Group.