First Biometrics, Now Genetics: Is GIPA the Next BIPA for Employers to Worry About?
Most employers operating in Illinois are (or should be) aware of Illinois’ stringent Biometric Information Protection Act (BIPA). As we have written about previously, BIPA’s requirements are exacting, and BIPA plaintiffs do not need to prove actual damages. Instead, any technical violation of BIPA’s statutory obligations can result in hundreds of thousands of dollars in damages for employers, depending on the number of violations during the five-year limitations period. Oftentimes, this means that employers are essentially facing strict liability for BIPA non-compliance.
Seemingly in an attempt to follow this strict liability formula, some Illinois plaintiffs’ attorneys are pursuing lawsuits under another Illinois statute — the Genetic Information Privacy Act, or GIPA. Until recently, GIPA, which was enacted decades ago in 1998, has not been the subject of significant litigation. It largely mirrors the federal Genetic Information Nondiscrimination Act (GINA) and adopts several federal definitions as listed in the Health Insurance Portability and Accountability Act (HIPAA). Of note, this includes the definition of “genetic information,” which broadly encompasses things like an individual’s genetic tests, the genetic tests of family members of the individual, and the manifestation of a disease or disorder in family members of such an individual. Whereas BIPA’s goal is to protect individuals’ biometric information, GIPA’s goal is to protect individuals’ genetic information.
Also like BIPA, GIPA has a long list of technical requirements and a private right of action allowing “aggrieved” individuals to seek damages without proving actual harm. The technical requirements list some activities that employers cannot do in the employment context. Plaintiffs’ attorneys are particularly interested in 410 ILCS 513/25(c), which says employers may not:
- Solicit, request, require, or purchase genetic information of a person or a family member of the person, or administer a genetic test to a person or a family member of the person as a condition of employment or preemployment application;
- Affect the terms, conditions, or privileges of employment, or terminate the employment, of any person because of genetic testing or genetic information with respect to the employee or family member;
- Limit, segregate, or classify employees in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee because of genetic testing or genetic information with respect to the employee or a family member, or information about a request for or the receipt of genetic testing or genetic information by such employee or family member of such employee; and
- Retaliate through discharge or in any other manner against any person alleging a violation of GIPA.
So, where do these recent GIPA cases claim employers are running afoul of these and other GIPA prohibitions? Most often, employees allege that employers sought “genetic information” at some point during the employment application process. Allegations typically claim that employers asked about family medical history, including certain diseases or disorders, perhaps in advance of applying for certain benefits. Under a strict reading of GIPA, unless all of GIPA’s requirements are met, such inquiries are prohibited and result in per violation penalties of $2,500 (negligence) to $15,000 (intentional/reckless). It is not hard to see how a pattern of asking about “genetic information” can result in significant exposure over a period of months of years of employment applications.
Like BIPA, compliance with GIPA is not necessarily difficult, but employers need to be aware of all of the statutory requirements. In the case of GIPA, it is especially important that employers’ recruiters and human resources departments know what they can and cannot ask about during the application process. Foley attorneys stand ready to assist employers with compliance with this statute which is potentially serving as a hot bed for new employment litigation.
