Amazon, Ford Prying Into Family Medical Data Sparks Novel Suits

Amazon.com Inc. and Ford Motor Co. are allegedly asking job applicants to disclose family medical histories, breathing life into an old, rarely used Illinois privacy law, and employers are taking notice.

It’s a novel twist on a law meant to prevent companies like Ancestry.com, 23andMe Inc., Color Health Inc., and GeneDx LLC from selling the genetic data they capture to health or life insurance companies without written consent from consumers.

The Illinois Genetic Information Protection Act (GIPA) has been in effect for decades, but it’s rarely been used. Now a new type of GIPA claim is popping up in court dockets targeting companies that require physical examinations because of the strenuous nature of employment. The lawsuits claim interviewers’ questions about family medical history violate the state’s genetic privacy shield.

While corporate privacy lawyers said they weren’t overly alarmed by the new filings, they did say they’re watching how the cases develop because it’s a new and untested area of law.

“We are noticing the recent influx of filings. By our count there have been almost 40 that have been filed in 2023, and a lot of those have been recent. Also, new plaintiff firms are starting to file suits under the statute,” Danielle Kays, senior counsel at Seyfarth Shaw LLP, said. “I think it’s something that companies should note. We are definitely paying attention.”

The state’s business community has also taken note of the cases. “We have been hearing increasing reports about GIPA complaints in the last few months and are monitoring the situation with some alarm. Protecting employee and consumer data is of utmost importance to our member companies,” Clark Kaericher, senior vice president of government affairs at the Illinois Chamber of Commerce, said in an email.

In the Amazon.com lawsuit, current and former employees allege they were asked to take pre-employment physicals and provide family medical histories as a condition of employment. “Defendants violated Plaintiffs’ and the proposed Class Members’ rights to privacy in their genetic information as set forth in GIPA,” the Amazon plaintiffs said.

That case was sent to federal court, where it is pending.

In another case, Crystal Potter, an applicant for a job with Akorn Operating Co. LLC, claimed she was questioned about her family’s medical history, including if her family members had been diagnosed with certain ailments.

Evolving Litigation

Initial lawsuits involving GIPA, which was enacted in 1998 and amended in 2008, largely dealt with individuals claiming companies violated the law by selling or transferring genetic information to other companies without consent, typically for money.

But now, many GIPA class-action lawsuits filed in Illinois allege companies required or solicited prospective and current employees to disclose family medical history information, including information on family members’ medical conditions and diagnoses, which the lawsuits claim is “genetic information” and therefore violates the privacy law.

“Initially all of these new GIPA class action lawsuits were being filed by the same plaintiffs’ firm. And recently we’ve seen GIPA class actions filed by additional firms,” Kays said.

Chicago-based Wallace Miller began filing cases using the legal theory as early as March and has continued to pursue those cases the lawsuits. The firm is sometimes assisted by New York-based Siri & Glimstad LLP. Neither firm responded to requests for comment.

Industries targeted by the lawsuits include health care and warehouse work, where there is some sort of pre-employment physical or pre-employment health questionnaire, Nixon Peabody LLP partner John Ruskusky said.

Penalties for violating the law are severe. Aggrieved persons have a private right of action in state circuit court or as a supplemental claim in a federal district court against an offending party. Each negligent violation carries a penalty of $2,500, and $15,000 may be imposed on a company for each intentional or reckless violation.

Defenses Available

Lawyers said the novel lawsuits can be attacked in several ways.

First, there’s the statute’s language. One section of the law said the purchase of publicly available documents such as newspapers and requests “inadvertently requesting family medical history by an employer” don’t violate the law. But just what “inadvertently” means will only be decided by case law.

Another section said the family information must include the “manifestation of a disease or disorder in family members,” and employers could argue their queries didn’t involve genetic family diseases.

A defense can also rely on legislators’ intent, Kays said. “GIPA was enacted as an anti-discrimination statute. And we’re not seeing discrimination alleged in these new complaints,” she said.

And just how courts interpret “genetic information” may also shape the litigation, the lawyers said.

Whether the new legal strategy will be successful is unknown, Ruskusky said. “There’s no real case law here,” he said.