By: David S. Levine

By now, many employers in Illinois and elsewhere have heard of the Illinois Biometric Information Privacy Act (BIPA), a statute regulating the collection and disclosure of biometric data such as fingerprints and face geometry that has resulted in significant exposure for Illinois employers. In the past year, another statute mirroring certain aspects of BIPA has caught the attention of the plaintiff’s bar: the Illinois Genetic Information Privacy Act (GIPA). As described below, businesses with employees in Illinois should take note of GIPA to minimize their exposure under the statute—a point underscored by a recent decision involving GIPA.

Background On The Illinois Genetic Information Privacy Act

The Illinois Genetic Information Privacy Act (“GIPA” or the “Act”) regulates, among other things, the collection and use of “genetic information” by employers and other entities. Under the Act, “genetic information” means information regarding (among other things) (i) an individual’s genetic tests, (ii) the genetic tests of the family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual.

For employers in particular, the Act bars any “employer, employment agency, labor organization, and licensing agency” from “directly or indirectly” doing any of the following:

• Soliciting: Soliciting, requesting, requiring or purchasing genetic testing or genetic information of a person or a family member of the person, or administering a genetic test to a person or a family member of the person as a condition of employment, preemployment application, labor organization membership, or licensure.
• Discriminating: Affecting the terms, conditions, or privileges of employment, preemployment application, labor organization membership, or licensure, or terminating the employment, labor organization membership, or licensure of any person because of genetic testing or genetic information with respect to the employee or family member.
• Retaliating: Retaliating through discharge or in any other manner against any person alleging a violation of the Act or participating in any manner in a proceeding under the Act.
• Segregating: Limiting, segregating, or classifying 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.

Similar to the Illinois Biometric Information Privacy Act (“BIPA”), GIPA provides steep liquidated damages for violations. In particular, a plaintiff can recover liquidated damages of $2,500 or actual damages (whichever is greater) for negligent violations of the Act and liquidated damages of $15,000 or actual damages (whichever is greater) for intentional or reckless violations of the Act. Because plaintiff’s attorneys often file these claims as class actions (as occurs for BIPA claims), the liquidated damages can quickly multiply. As with BIPA, plaintiffs can also recover reasonable attorneys’ fees under the Act.

A New BIPA? The Plaintiff’s Bar Discovers GIPA

Although the Illinois legislature passed GIPA more than 25 years ago, the Act has stayed largely dormant until recently. Many of the recent cases, moreover, have been brought by Illinois job applicants and employees seeking to represent putative classes of other applicants and employees.

Consider one recent case: Collins v. NTN Bearing Corporation of America, No. 1:24-CV-6726 (N.D. Ill. Feb. 19, 2025).  In Collins, the fact pattern began as many GIPA cases do: with a pre-employment physical examination. In particular, after the job applicant, Scott Collins (“Collins”), applied for a position with NTN Bearing Corporation of America (“NTN”), NTN requested that Collins undergo a physical examination by a third party as part of the pre-employment application process. Many employers require such pre-employment examinations when hiring for physically intensive or otherwise hazardous positions.

In his Complaint, Collins alleged that during his examination, the third-party medical provider requested information about his medical history, including whether his family members had a history of high blood pressure, heart disease, or other medical conditions. He alleged that NTN did not instruct him to refuse to answer questions about his family medical history.

After working for NTN for approximately three months, Collins brought a putative class action against NTN under GIPA. He asserted that NTN violated GIPA by soliciting genetic information in connection with the pre-employment physical examination. Collins sought to represent a class consisting of all individuals in Illinois from whom, within the applicable limitations period, NTN requested, solicited, required and/or obtained genetic information, including family medical history, in connection with the person’s application for employment or employment with NTN.

The Decision—And Why Common Pre-Employment Screenings, Even By Third Parties, Can Create Exposure For Employers

In response to the Complaint, NTN moved to dismiss the case on several grounds.  In its February 2025 decision, the Court rejected each argument.

Physical v. Genetic Tests.  NTN first argued that the claim failed because Collins’ providing genetic information was not, as required under GIPA, a “condition of employment.”  Specifically, NTN argued that while it required a physical examination of Collins, NTN did not require that Collins provide genetic information as part of that examination.

The Court rejected this argument, however, because the request for genetic information—in particular the physician’s questions about Collins’ family medical history—was allegedly part of the required physical examination. As the Court indicated, Collins alleged that “he applied for a job with NTN, he had to take a physical exam as a part of the application process, the exam included questions about his genetic information, NTN did not instruct him to refuse to answer questions about his genetic information, and he was required to answer the questions” to obtain the position. Those allegations sufficed, the Court held, for purposes of the motion to dismiss.

Third Party. NTN also contended that because a third-party medical provider—and not NTN itself—conducted the examination, Collins’ claim failed for that reason too. But because the Act prohibits employers from “directly or indirectly” soliciting genetic information from a prospective employee, the Court rejected this argument as well. That was true, the Court noted, despite their being no allegations that NTN directed the third-party to inquire about Collins’ family medical history; that NTN was aware such questions were part of the physical examination; or that NTN even received genetic information from the third-party provider following the examination.

Inadvertent Exception. Finally, NTN argued that because GIPA provides that “inadvertently requesting family medical history by an employer . . . does not violate this Act,” this exception required that the Complaint be dismissed. In rejecting this argument, the Court emphasized that NTN never directed Collins to not provide genetic information, nor did it direct the medical provider to not seek such information.  Inquiries regarding family medical history, the Court noted, are also a “common feature” of physical exams, such that NTN should have likely foreseen that these questions would be asked. Accordingly, the Court held that NTN had not established the exception and that the case could proceed.

Employer Takeaways

Although the requirements under GIPA are evolving—and other judges may disagree with the Court’s reasoning above—Illinois employers can take several practical steps to mitigate exposure under GIPA going forward.

• Evaluate Current Practices: Employers should evaluate what information they collect (whether obtained directly or through third party vendors) in connection with hiring processes, employment decisions, or otherwise.  Based on business needs, employers can consider ceasing to require physical examinations for certain positions.
• Implement Precautionary Measures: Where employers do require physical examinations, they should specifically instruct applicants to not provide genetic information (as defined broadly to include family medical history and other covered data) when responding to requests for medical information. Employers that contract with third-party vendors to conduct the examinations should also instruct them not to seek such information and should consider having these third parties indemnify the employers for liability under GIPA. Illinois businesses should know, moreover, that GIPA contains many provisions that are not specifically discussed in this article and should therefore consult with legal counsel to assess other precautionary measures that may be warranted in their particular situations.
• Train Personnel: Although GIPA is not a new law, it has only recently caught the attention of the plaintiff’s bar, and Human Resources professionals may not be aware of its requirements. HR and other professionals should thus be trained on the requirements of the law and any relevant employer policies (whether new or existing).
• Monitor Developments: Because the requirements under the Act are evolving as courts interpret the text, employers and their legal counsel should also monitor developments in this area. Employers should also be aware of other laws—such as the federal Genetic Information Privacy Act—that bear on similar issues. The recent bankruptcy of 23andMe will likely only increase such legislation at the state and possibly federal level.

We expect cases under GIPA to continue to increase and encourage employers with operations in Illinois to ensure their compliance with the law.

Fox Swibel will continue to follow these developments closely and can be reached at any time. Please contact Steve Brenneman, Kelly Smith Haley, David Levine or the Fox Swibel attorney with whom you regularly work to discuss these issues.

David S. Levine

David Levine is a partner in the Firm’s Employment Law and Litigation Groups. David’s practice focuses on representing clients in a wide range of labor and employment matters, as well as other business disputes. As part of his litigation practice, David regularly defends employers in class, collective, and individual actions involving claims under the FLSA, Title VII, ADA, and other federal and state statutes. David also often litigates individual and class actions involving data privacy issues, in particular cases under the Illinois Biometric Information Privacy Act (BIPA). He practices in state and federal courts and before administrative agencies such as the EEOC, DOL, and DOJ.

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This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.