In 1998, the Illinois legislature passed the Genetic Information Privacy Act (“GIPA”), 410 Ill. Comp. Stat. Ann. 513/1, et seq. GIPA was intended to prevent employers and insurers from using genetic testing data for discriminatory purposes, see 410 ILCS 513/5(3), and, to that end, prohibits employers and insurers from seeking “genetic testing or genetic information” from applicants. See 410 ILCS 513/25(c)(1), 410 ILCS 513/20(a). For 25 years, there were no lawsuits brought under GIPA. That has changed, and multiple class actions have been filed this year asserting GIPA violations.

These lawsuits stem from a little-noticed decision last year, Bridges v. Blackstone Group, Inc., No. 21-cv-1091, 2022 WL 2643968 (S.D. Ill. July 8, 2022). In Bridges, the plaintiffs brought a putative class action claiming that when Blackstone acquired Ancestry.com, it allegedly compelled the disclosure of their genetic information in violation of GIPA. The court dismissed the complaint because it found the plaintiffs failed to state a plausible violation of GIPA. See 2022 WL 2643968, at *4.¹ Before reaching that question, however, the court had to first decide whether the plaintiffs were an “aggrieved person” such that they could even bring a claim under GIPA. See 410 ILCS 513/40(a). The court found it was appropriate to apply the definition of “aggrieved person” used by the Illinois Supreme Court when interpreting the Illinois Biometric Privacy Act (“BIPA”) in Rosenbach v. Six Flags Ent. Corp., 2019 IL 123186 (2019). Under this definition, an individual “need not allege some actual injury or adverse effect, beyond violation of his or her rights” under GIPA to qualify as an “aggrieved person.” Bridges, 2022 WL 3643968, at *3 (quoting Rosenbach, 2019 IL 123186, at ¶ 40).

Two class action lawsuits have already been filed under GIPA based on this definition of “aggrieved persons”: Page et al. v. Ford Motor Co., No. 2023-CH-878 (Cir. Ct. Cook Cty., Ill., Jan. 27, 2023) and Thompson et al. v. Amazon.com, Inc., et al., No. 2023-CH-2162 (Cir. Ct. Cook Cty., Ill., Mar. 3, 2023). The complaints allege that an employer’s request for “family medical histories” constitutes a request for “genetic information” in violation under GIPA, thereby entitling the plaintiffs to statutory damages for each violation without the need for actual injury under Bridges. Specifically, the complaints seek statutory damages of $15,000 for each intentional or reckless violation of GIPA, and $2,500 for each negligent violation, along with injunctive relief and attorneys’ fees awardable under the statute. See 410 ILCS 513/40(a).

No court has yet decided if “family medical histories” constitute “genetic information” under GIPA. What is certain is that GIPA class action litigation has already started based on the statutory “aggrieved persons” language. If the history of BIPA litigation is any indication, these GIPA lawsuits will only continue to multiply.

Nick Kahlon is a partner at Riley Safer Holmes & Cancila LLP focusing his practice on complex commercial litigation and intellectual property disputes.  Blake Kolesa is an associate supporting the firm’s product liability, class action, and white collar practices.