The basics
Under Illinois law, any employers, including employment agencies, are prohibited from soliciting or requesting genetic information from a job applicant as a condition of employment or pre-employment application. Employers are also prohibited from allowing such information to affect the terms, conditions, or privileges of employment. 410 ILCS 513/25 Sec. 25(c)(1)-(2).
For purposes of GIPA, “employers” include any employer “employing employees within the State” of Illinois, as well as employment agencies and any person or organization engaged in the procurement of job opportunities or the recruitment or placement of employees. 410 ILCS 513/10 Sec. 10.
“Genetic testing” under GIPA has the same meaning as under HIPAA and includes: genetic tests of an individual employee or job applicant; genetic tests of the individual’s family members; and notably, “[t]he manifestation of a disease or disorder in family members” of the individual employee or job applicant. 45 C.F.R. § 160.103.
The problem
While most employers are not making the mistake of genetically testing job applicants, some are unknowingly risking GIPA violations by asking applicants to disclose family medical histories. These violations can occur directly, through questions asked by an employer, or indirectly by third parties.
Private right of action and statutory damages
Any person subjected to a GIPA violation is provided by the Act with the ability to file a private right of action in State circuit court. Unlike most cases where a plaintiff would then need to establish damages, GIPA provides minimum statutory damages of $2,500 for a negligent violation of the Act and $15,000 for an intentional or reckless violation of the Act. The Act also provides prevailing parties with attorney’s fees, costs, and litigation expenses. 410 ILCS 513/40 Sec. 40.
Class actions and violations “As a matter of course”
Because GIPA provides minimum statutory damages, employers that repeatedly violate the Act, or violate GIPA as a matter of policy, face a corresponding increase in risk exposure.
If an employer, employment agency, or third party is utilizing forms that contain questions regarding a job applicant’s medical history or the medical histories of their family members, they risk violating GIPA’s prohibitions on “genetic testing,” which includes manifestations of diseases or disorders in family members. In addition to the risk of violating an individual applicant’s rights under GIPA, employers may also face the risk of violating the rights of all persons to whom the form was provided, increasing the likelihood of class-certification and class-action lawsuits by those aggrieved persons.
The solutions
Employers of Illinois workers and employment agencies operating in Illinois that are concerned about liability exposure under GIPA should:
- Review all application materials, onboarding documents, or other forms to ensure they do not request family medical history.
- Evaluate any hiring practices, including interviews, to identify and eliminate any prohibited inquiries.
- Confirm that any third-party contractors do not engage in practices that could create GIPA compliance issues.
- Exercise caution in this area and seek the advice of personalized counsel when issues involving employee or applicant family medical history are likely to occur.
If you have any questions regarding GIPA compliance or how this law may impact your hiring practices or how this law may impact your hiring practices, please contact your legal counsel or a Marsh McLennan Agency (MMA) advisor.
