A federal judge has ruled an employer can’t use a federal employment law that typically governs employee benefits to head off a potentially costly class action accusing the company of violating Illinois' stringent genetic information privacy law.
Plaintiff Tamiko Harris-Morrison filed a Cook County lawsuit alleging her employer, New Jersey-based Sabert Corporation, required a physical examination that included collection of personal data, allegedly in violation of restrictions spelled out in the Illinois Genetic Information Privacy Act (GIPA).
Sabert removed the complaint to federal court, where it sought dismissal by invoking pre-emptions under the Employee Retirement Income Security Act (ERISA).
In an opinion filed Dec. 31, U.S. District Judge Edmond Chang denied the motion.
The lawsuits generally have targeted employers or insurers who have asked prospective employees or applicants to complete questionnaires about their personal and family medical histories. Plaintiffs have asserted these questions amount to demands for personal genetic information, which they say violates GIPA.
The lawsuits could expose the companies to potentially massive damages, as the GIPA law allows for damages of $15,000 per violation and could be multiplied across untold numbers of people who have either accepted employment or otherwise been asked to answer the health-related questions.
In the case against Sabert, according to court records, Harris-Morrison worked as a Sabert machine operator from June 2013 through March 2020. Her allegations involved a June 2019 on-site physical in which she said a third-party medical provider sought information about a family history of heart health, cancer and diabetes. She claimed disclosing genetic predispositions as a condition of employment violates GIPA protections and alleged the company did not collect written authorization for using her data in furtherance of a wellness program.
The lawsuit was first filed in Cook County Circuit Court, before it was removed by Sabert to federal court.
After establishing his jurisdiction over the matter based on diversity under the Class Action Fairness Act, Chang said Sabert’s strategy failed because the record showed no evidence of Harris-Morrison participating in an employee benefit plan that has a connection to the physical exam at the heart of her allegations.
Although Harris-Morrison attested she didn’t provide authorization “for the use of her genetic information in furtherance of a workplace wellness program,” Chang wrote, that isn’t grounds for positively inferring such a program exists to the extent Sabert could use it to wield ERISA preemption.
“A plaintiff cannot succeed in avoiding complete preemption by disguising federal claims through artful pleading and strategic omission,” Chang wrote. “But the complaint is so devoid of any mention of an employee benefit plan that the court has no basis on which to infer complete preemption. Although Sabert has submitted a written declaration on the relevance of employer-sponsored insurance benefits to this case, Sabert itself has elected not to rely on this information for” its dismissal motion.
Chang further said that even if discovery revealed the involvement of a plan under ERISA guidelines, Sabert likely still couldn’t make a compelling preemption argument because Harris-Morrison’s claim wouldn’t more properly fall under ERISA.
“Harris-Morrison is not suing for any benefits or rights under the plan; rather, she is seeking damages for violation of her privacy rights under state law,” Chang wrote. “Although it is not impossible that a relevant ERISA plan’s terms might touch on the collection of genetic information, the court doubts that it would confer any privacy rights. Thus, any preemption would more likely take the form of conflict preemption.”
At this stage, Chang said, Sabert also can’t argue a conflict with ERISA exists absent further discovery. He noted the company’s claim that the 2008 federal Genetic Information Nondiscrimination Act amended ERISA and as such bolsters its position for GIPA preemption. But the judge said the relevant GINA title “makes clear that it does not preempt state laws that provide equal or greater protections.”
Chang noted discovery might allow Sabert to argue preemption if it chooses to seek summary judgment. He also said discovery could factor into the Sabert’s liability as compared to the medical provider it hired.
“If the workplace wellness program deployed by the medical provider is a generic program that applies to all employers serviced by the medical provider, then Sabert might not have played any role in the alleged collection of genetic information,” Chang wrote. “On the other hand, if Sabert adopted the program and had some measure of control over it, then the company could be on the hook for GIPA violations.”
Because limited discovery will proceed, Chang concluded, he rejected Sabert’s request that he force Harris-Morrison to provide a more detailed complaint.
Sabert is represented by Foley & Lardner, of Chicago. The company declined to comment on active litigation.
Harris-Morrison is represented by Siri and Glimstad, of Los Angeles. The firm did not respond to a request for comment.