Is Genetic Information the Next Privacy Battleground?

At its core, GIPA regulates the collection and use of genetic information by employers, employment agencies, labor organizations, licensing agencies, and other entities. According to recent GIPA class-action suits, the mandating of pre-employment physicals or health interviews required potential employees to improperly disclose their family medical history as a condition of employment. GIPA litigation remains in its early stages, but the possibility of exorbitant statutory damages — $2,500 per negligent violation, up to $15,000 per intentional or reckless violation — could make GIPA the next major trend in privacy class action litigation.

GIPA Background

The Illinois legislature first enacted GIPA in 1998. The act was then amended in 2008, in part, in response to the enactment of its federal counterpart — the Federal Genetic Information Nondiscrimination Act of 2008 (GINA). The 2008 GIPA amendment adopted GINA's definition of "genetic information," which includes: an individual's genetic tests; genetic tests of family members of an individual; the manifestation of a disease or disorder in family members of such individual; or the request or receipt of genetic services or participation in the clinical research which includes genetic services, by an individual or their family member. Excluded from the definition is information about the sex or age of the individual. Notably, the inclusion of the "manifestation of disease or disorder in family members" as an individual's "genetic information" broadens the reach of the statute; it thus extends far beyond a medical or health care setting.