A federal judge has curbed a transportation company’s attempt to put the brakes on a class action lawsuit accusing it of violating a state genetic privacy law by asking job applicants to report family medical histories, saying federal laws and regulations - which the company said require transportation companies to evaluate drivers medically - should not prevent the lawsuit from pulling forward.
Kevin Short sued paratransit provider MV Transportation, alleging an oral request about a history of things like heart disease and diabetes during a pre-employment physical screening violated the Illinois Genetic Information Privacy Act, which the General Assembly enacted in 1998.
In an opinion filed March 10, U.S. District Judge Manish Shah denied the company’s request to dismiss the complaint.
Shah rejected MV’s request to notice materials from outside Short’s complaint, such as its Chicago municipal contract, its Department of Transportation registration on the Federal Motor Carrier Safety Administration’s website and an agency medical handbook.
“While Short does not object to their authenticity, these materials are neither referenced in his amended complaint nor central to his GIPA claim,” Shah wrote. “Guidance that may or may not have factored into Short’s physical examination implicates factual disputes that cannot be resolved now.”
Shah said a medical evaluation as part of the hiring process complies with FMCSA regulations. Neither party disputed the relevance of GIPA protections to an oral request for a family medical history, Shah wrote, meaning “the only dispute is whether the Department of Transportation’s federal regulations setting minimum standards for drivers’ physical qualifications preempt Short’s GIPA claims.”
The FMCSA has 13 qualification criteria for determining who can be certified to drive a commercial vehicle. Shah said none of those criteria incorporate family medical history, referencing only a current clinical diagnosis or “established medical history.”
Shah said: “MV Transportation concedes that ‘the medical qualifications process contains no specific inquiries likely to elicit family medical history,’ but asserts that it is ‘plainly contemplated that medical examiners may discuss and make inquiries’ to conduct a physical examination that complies with the federal standards. That’s not enough to suggest that compliance with GIPA and the federal regulations is ‘physically impossible.’ The mere possibility that a medical examiner asks for information protected by GIPA while performing an examination does not demonstrate impossibility to comply with both federal and state law.”
In order to win dismissal, MV would’ve needed to identify a specific constitutional protection or federal law conflicting or displacing state law showing it could not evaluate potential drivers while also complying with GIPA protections.
“The mere possibility that a medical examiner asks for information protected by GIPA while performing an examination does not demonstrate impossibility to comply with both federal and state law,” Shah wrote. “A medical examiner might have to exercise caution to limit questions to an individual’s medical diagnoses or conditions, but it’s possible for them to comply with GIPA’s prohibition on genetic information and evaluate a driver’s physical qualifications in compliance with regulatory requirements. The regulations require a medical examiner to solicit certain medical information, but they don’t explicitly require a medical examiner to solicit the narrow category of information protected by GIPA.”
Even if Shah had agreed to consider FMCSA’s medical examiner handbook, he noted that document doesn’t advise examiners that collecting family history is essential to comply with federal regulations. Instead, it stipulates examiners “are subject to applicable federal and state medical privacy laws regarding information provided during a physical examination.”
Other federal agencies, like the Mine Safety and Health Administration, have laws and regulations explicitly containing pre-emption clauses to override state laws like GIPA. But the Motor Carrier Safety Act has no such provision, Shah said, concluding that he wouldn’t grant dismissal based on conflict pre-emption.
Shah directed the parties to file a joint status report by March 31.
Short is represented my McGuire Law. The firm did not respond to a request for comment.
MV Transportation is represented by Littler, of Chicago. Attorneys from that firm also did not respond to a request for comment.