The Illinois Genetic Information Privacy Act and a case of no harm, no foul
A recent decision from a federal court in Illinois provides a detailed look at how courts are handling claims under the state’s Genetic Information Privacy Act. The case also demonstrates that not every improper question will necessarily lead to liability.
GIPA regulates how employers can collect, use, and disseminate genetic information, and it gives employees and applicants the right to sue if the rules are violated. Generally, employers cannot request or require “genetic information” when making hiring or employment decisions. Genetic information includes family medical history.
Daniel Henry v. AbbVie, Inc.
Daniel Henry applied for a position with a staffing agency that contracted with the employer. The company required some employees and contractors (depending on position) to complete medical examinations after receiving an offer and before starting work. The company used third-party providers to conduct the medical examinations and did not supply those providers with any questions to be asked. However, workers were specifically advised by the company that they should not provide any genetic information, including family medical history, when responding to the questionnaire.
Mr. Henry alleged that, during his examination, a nurse asked him questions about his family medical history of cancer, hepatitis, and heart disease. (The nurse denied asking these questions.) He was also provided a questionnaire that asked about his reproductive history, such as children with birth defects and pregnancy outcomes, but he did not answer any of those questions. After completing the medical examination, he worked at the company for approximately four months, when his employment was terminated four months later for reasons unrelated to the medical examination.
He sued, alleging that the company violated GIPA because it requested genetic information as part of a pre-employment application.
The company moved for summary judgment and argued that it could not be liable for violating GIPA because it relied on a third-party medical provider to conduct the examination. First, the court found that using a third party does not shield the employer from responsibility. Under GIPA, employers must do more than simply refrain from asking prohibited questions themselves; they must take affirmative steps to ensure that their agents, including health care providers, do not solicit genetic information from offerees.
The court also held that the disclaimer instructing individuals not to provide genetic information was insufficient because it was disconnected from the interview with the nurse. Mr. Henry might not have associated the disclaimer with the nurse’s alleged request for genetic information. Thus, the court could not find as a matter of law that the company could avoid liability based on the disclaimer.
Ultimately, however, the company obtained summary judgment and dismissal of the GIPA claim. The court found that the request for genetic information was not a condition of Mr. Henry’s employment. He did not answer the questions, and his job was unaffected. In other words, because his refusal to provide genetic information had no bearing on any employment decision, he was not able to sustain a claim under the GIPA.
Tips for employers
Employers covered by the GIPA or the federal Genetic Information Nondiscrimination Act should ensure that they protect themselves by doing the following:
No. 1: When using third-party vendors in hiring, ensure that the vendors do not engage in practices that could violate the law, particularly when it comes to genetic or medical information.
No. 2: Any written disclaimers related to genetic information should apply to all portions of the examination. The disclaimers should also make clear that “genetic” information under these laws goes well beyond genetic testing. It also includes requests for what was once considered to be innocuous medical information, such as family history.
No. 3: If employees or applicants are inadvertently asked to provide genetic information, the employer should take steps to separate that information from any employment records and ensure that no employment decisions are based on that information.
For assistance complying with the Illinois Genetic Information Privacy Act, contact an attorney in Constangy’s Chicago office.
