A federal judge in Chicago won’t let Caterpillar end a lawsuit accusing it of improperly asking job applicants about family medical histories.
The Aug. 14 opinion from U.S. District Judge Manish Shah represents the latest in an unfolding sphere of litigation surrounding the law known as the Illinois Genetic Information Privacy Act.
Kerry Branson and Shelley Dotson sued Caterpillar in Cook County Circuit Court in August 2023. Caterpillar removed the complaint to federal court and sought dismissal, which Shah partially granted.
According to court records, Branson and Dotson applied to work as material handlers. Caterpillar extended conditional employment offers that required physical exams at the company’s on-site medical offices in Decatur. Branson later participated in a workplace wellness program.
Both plaintiffs say the company’s requests for medical histories violated GIPA prohibitions despite the pre-employment paperwork including a section regarding the federal Genetic Information Nondiscrimination Act.
Shah noted Illinois lawmakers amended GIPA in 2008 — 10 years after its initial enactment — so it mirrored GINA provisions that applied to employers. In a manner similar to the high-profile Biometric Information Privacy Act, GIPA allows people to bring individual and class action lawsuits, potentially imposing massive payouts on businesses, as it allows statutory damages of up to $15,000 per violation.
In arguing for dismissal, Caterpillar said questions about medical conditions and family histories of conditions such as cancer, diabetes or heart issues are legally distinct from those seeking information about DNA, RNA, chromosomes and more. But Shah said the GIPA law's "text and federal regulations interpreting GINA’s parallel provisions make clear that genetic information includes family medical history.”
Shah drew a line between an employee’s personal medical condition — which is not protected information even if a presented disease or disorder is something based in genetics — and information about relatives because “GINA is concerned with employers who make a ‘predictive assessment concerning an individual’s propensity to get an inheritable genetic disease or disorder based on the occurrence of an inheritable disease or disorder in (a) family member.’ ”
The Equal Employment Opportunity Commission, which enforces GINA’s employment provisions, defines “family medical history” as “information about the manifestation of disease or disorder in family members of the individual,” according to Shah. “A request for an employee’s family medical history, even without explicit reference to a disease or disorder suggesting genetic predisposition, is a request for genetic information under GIPA.”
Caterpillar also argued any request for protected information was inadvertent. While Shah agreed GIPA does contain exceptions for inadvertent requests, he said Caterpillar’s inclusion of language warning applicants to withhold genetic information in the medical questionnaire supplied after the job offer does not relieve Caterpillar from liability because such language wasn’t included on the request for medical records.
The company further said it shouldn’t be liable if applicants offer too much information in response to a corporate question, but Shah agreed with the plaintiffs’ position that the post-exam request for medical records itself was too broad.
GIPA also says employers can’t use genetic information to further a workplace wellness program without meeting certain conditions. Rather than claiming it met those conditions, Caterpillar argued for dismissal of Branson’s claim because only the Employee Retirement Income Security Act should regulate employee benefit plans.
Shah agreed “the scope of ERISA preemption is broad,” but said Branson couldn’t have brought the claim under that federal law because he wasn’t suing as a beneficiary or seeking to clarify the terms of his plan or recover benefits.
“GIPA implicates an independent legal duty for an employer to properly request and safeguard genetic information obtained in furtherance of a workplace wellness program,” Shah wrote. “Complete preemption is inapplicable here.”
However, he agreed with Caterpillar’s stance that the wellness exam in question fell under its employee health, life and disability benefit program and therefore qualifies for conflict pre-emption. Although some workplace wellness programs operate outside of group health insurance coverage, Shah agreed that isn’t the case at Caterpillar and agreed to dismiss that portion of the complaint.
Finally, Shah said the plaintiffs adequately alleged Caterpillar knew of GIPA’s requirements and allowed the workers to continue pursuit of statutory damages of $2,500 for negligent violations and $15,000 for those found to be intentional or reckless, preserving their entitlement “to whatever relief is available for claims they prevail on.”
The plaintiffs are represented by Wallace Miller, of Chicago, and Siri & Glimstad, of New York. The firms declined to comment.
Caterpillar did not respond to a request for comment.