A federal judge won’t let Union Pacific derail a class action alleging it violated Illinois’ genetic information privacy law when it asked job applicants about family medical histories.
Candace Taylor and Carla Moreno sued the railroad operator under the state’s Genetic Information Privacy Act, or GIPA, during its hiring process.
According to court documents, Taylor worked for UP’s train crew in Dolton from January through March 2023, while Moreno was a customer service representative there from January through August 2020. Both women said the company required them to submit to a pre-employment physical evaluation with verbal and written questions that forced them to violate GIPA protections.
In arguing for dismissal, UP said the plaintiffs failed to show they were “aggrieved by a violation of” GIPA. Although Coleman noted no Illinois court has addressed that issue, she drew a parallel to many rulings on the similar Biometric Information Privacy Act, which has been the subject of thousands of high-profile and expensive lawsuits in recent years.
Coleman specifically cited Rosenbach v. Six Flags Entertainment Corporation, a BIPA lawsuit that reached the Illinois Supreme Court in 2019, as addressing the central issue of whether someone can sue over a technical legal violation or whether they also must allege damage stemming from those allegations. She noted “the only other federal court yet to address this issue likewise considered” the same BIPA case, and found a technical violation suffices to survive dismissal, but said she still had to determine if the UP plaintiffs have standing to sue.
“Plaintiffs allege that Union Pacific intruded into their private domain by improperly requesting their genetic information as a condition of employment,” Coleman wrote. “Under the GIPA section before the court, plaintiffs have adequately alleged a concrete and particularized harm sufficient to support Article III standing.”
Coleman rejected UP’s argument that family medical history isn’t “genetic information,” saying GIPA defines the term in the same manner as the Health Insurance Portability and Accountability Act’s privacy rule, which has a clause referencing “manifestation of a disease or disorder in family members.”
She further noted the parties’ reliance on opinions addressing the federal Genetic Information Nondiscrimination Act, which limits use of such terminology to only medical conditions that suggest a genetic predisposition, and said Equal Employment Opportunity Commission “guidance further supports the rule synthesized in these cases.”
Because the plaintiffs alleged the medical provider conducting their physical inquired about known hereditary conditions — diabetes, cancer, heart health and more — Coleman said they adequately raise the issue of “genetic information” under GIPA.
UP also tried to argue it is exempt from the lawsuit because GIPA has exceptions for inadvertent requests for protected information. Coleman first agreed with the plaintiffs’ position that UP’s stance amounted to an unallowable affirmative defense, then noted the complaint adequately alleges the request was intentional.
The railroad also challenged the allegation it used the data for discriminatory employment practices. But Coleman said neither she nor the plaintiffs see that legal theory at work.
“GIPA is meant to regulate the confidentiality and nondisclosure of genetic information along with genetic-based discrimination,” Coleman wrote, implying plaintiffs need not allege every possible violation, while also explaining UP ignored a prohibition on “directly or indirectly do(ing) and of the following” listed actions.
Finally, Coleman sided with the plaintiffs on the statutory limitations window and denied UP’s motion to dismiss on grounds the plaintiffs didn’t plausibly allege negligent, reckless or intentional GIPA violations, framing the issue again in the context of BIPA litigation addressing financial damages.
Other railroad companies are facing similar GIPA litigation, including Norfolk Southern and Canadian Pacific.
Mike Jaixen, a senior communications manager in Union Pacific's corporate communications department, reacted to the ruling.
"While we are disappointed in the court's ruling as to our request to the dismiss the case, Union Pacific will work to defend this case on both factual and legal grounds," Jaixen said in an email. "Union Pacific complies with the applicable state and federal regulations in its hiring process so will move forward with our defense of this matter."
Union Pacific has been represented in the case by attorney Christopher S. Hennessy, of the firm of Cozen O'Connor, of Chicago.
Plaintiffs are represented by attorneys Kyle D. McLean and David J. DiSabato, of the firm of Siri & Glimstad, of Los Angeles and New York; and Edward A. Wallace, Mark R. Miller and Nicholas P. Kelly, of the firm of Wallace Miller, of Chicago.