A Cook County judge says a woman can't use an Illinois genetic privacy law to sue her employer, hospital and health care system Advocate Health, for allegedly requiring her to undergo a physical exam, which included questions about her and her family's medical history, as part of the onboarding process.
In delivering the ruling, Judge Joel Chupack became one of the first jurists to weigh in on the question of whether trial lawyers can add the Illinois Genetic Information Privacy Act to their quiver of laws used to target Illinois employers with potentially costly class action lawsuits.
The decision potentially sets up an appeal from Mendoza and her lawyers, with many millions of dollars on the line in the case, brought on behalf of potentially tens of thousands of Advocate workers and others who applied for jobs at Advocate's network of hospitals and other clinical sites in Illinois.
In August 2023, attorneys with the firm of Wallace Miller, of Chicago, filed suit in Cook County Circuit Court against Advocate.
The lawsuit accused Advocate of allegedly violating the GIPA law by requiring those applying for jobs to submit to medical exams, which included questions about their and their families' medical histories. According to the lawsuit, such questions potentially revealed "genetic information" allegedly protected by the GIPA law, and could improperly allow Advocate to make employment decisions based on the answers to those questions.
The lawsuit was not unique. It came as part of a wave of dozens of class action lawsuits lodged against employers in Illinois in recent months under the GIPA law, as plaintiffs' lawyers seek to use the GIPA law to broaden their ability to extract potentially large settlements or judgments from Illinois employers.
Since 2015, a growing cadre of trial lawyers have used Illinois' Biometric Information Privacy Act (BIPA) to launch a blitz of thousands of class action lawsuits, primarily targeting employers with claims that they have improperly scanned workers' fingerprints or other so-called "biometric identifiers." The legal assault has been bolstered by mostly plaintiff-friendly interpretations of the BIPA law in a series of recent Illinois Supreme Court decisions.
Notably, the state high court specifically ruled plaintiffs can demand damages of $1,000-$5,000 per violation under the BIPA law. And the court defined individual violations of BIPA as each time a company scans someone's fingerprints or other biometrics, not just the first time.
This decision carries the potential to expose businesses to potentially ruinous payouts, as damages can be multiplied across entire workforces, in which each employee may undergo multiple biometric scans per day, whether when verifying their identity when punching the clock to begin and end work shifts, or when accessing company computer systems, or secure areas within a workplace.
In the GIPA lawsuits, plaintiffs' lawyers are seeking to apply similar legal reasoning to potentially sock employers with similar payout risks. Under GIPA, plaintiffs can seek damages of $2,500-$15,000 per violation.
Mendoza sought similar damages in her case against Advocate.
And Mendoza is not the only such class action lodged against Advocate under the GIPA law. In January, attorney Mark Hammervold, of Elmhurst, brought a similar class action against Advocate in Cook County court on behalf of named plaintiff Shaquala Wade. That lawsuit remains pending, according to court records.
In the Mendoza case, the named plaintiff claims she was offered the position of Customer Care Association in September 2021. At that time, she said she underwent a physical exam with a doctor in Downers Grove, where she allegedly was asked to "disclose her family medical history." Questions allegedly included those asking about her and her family's "predisposition" to a range of potential illnesses and health maladies, including heart disease, cancer and diabetes.
Advocate, however, said Mendoza's employment was not conditioned on undergoing the physical, nor did her answers to the questions affect her employment. Advocate said they were seeking only information about Mendoza's Covid and flu vaccine history, her current medical conditions and the results of her screenings for tuberculosis and drug use.
Further, Advocate noted the exam had come after Mendoza was offered the job. And the company said Mendoza had signed a release affirming she knew all of that information.
In response, Mendoza's attorneys argued the release should not be permitted under a different state law, the Illinois Workplace Transparency Act, which forbids employers generally from requiring workers to sign waivers that blocks the worker from suing over alleged unlawful employment practices.
Judge Chupack, however, said he did not believe the medical history questionnaire, which followed an offer of employment, should be viewed as an unlawful employment practice under GIPA.
In the ruling, the judge said questions from Advocate about her immunization history and current medical conditions are in keeping with the interests of health care providers to ensure the safety of their patients.
And the judge said he did not believe the questions about medical history amounted to illegal prying into her family's genetic past.
"Largely, they pertain to current medical conditions and history which, if she had a certain condition or history, could compromise the health of patients, if her condition was transmissible," Chupack wrote. "The complaint's sole count is that Defendants violated the GIPA as a matter of law by making the disclosure of her family's genetic history a condition of her employment. Mendoza has not provided exhibits or evidence that contradict the evidence Defendants provided," the judge added.
The judge granted Advocate's motion for summary judgment, dismissing the lawsuit with prejudice, meaning Mendoza and her lawyers can appeal, but cannot amend their lawsuit to try again.
Mendoza and the plaintiffs' class have been represented by attorneys Edward A. Wallace, Mark R. Miller and Molly C. Wells, of Wallace Miller, of Chicago; and David J. DiSabato and Kyle D. McLean, of Siri & Glimstad, of New York.
Advocate has been represented by attorneys Mark S. Mester, Gary Feinerman, Robert C. Collins III and Alexandra B. Van Doren, of the firm of Latham & Watkins, of Chicago.