USA – ILLINOIS Trends and Developments Contributed by: Paul Yovanic, Jason Priebe, Ada Dolph and Michael Jacobsen, Seyfarth Shaw LLP
the same time. As a result, the Seventh Circuit’s pend - ing decision will be the first federal appellate guidance on this question – guidance that could meaningfully shape the trajectory of pending and future BIPA cases. As courts continue to reassess the retroactivity issue – and even reverse themselves, as in Gregg – the landscape remains in flux. Until the Seventh Circuit or the Illinois Supreme Court weighs in, litigants should expect continued inconsistency across trial courts, with high‑stakes consequences for exposure and strategy. The Illinois Genetic Information Privacy Act (GIPA, 410 ILCS 513/ et seq) Enacted a decade before BIPA, GIPA remained large - ly dormant for years, though the landscape began changing considerably in 2023. Since then, more than 100 class actions have been filed, many targeting employers whose pre‑employment forms, post‑offer medical exams or onboarding processes allegedly solicited genetic information in violation of the stat - ute. GIPA’s core purpose has always been to protect individuals from discriminatory use or unauthorised disclosure of genetic information, and its definitions – harmonised with the Health Insurance Portability and Accountability Act (HIPAA) and the Genetic Informa - tion Nondiscrimination Act (GINA) – sweep far beyond laboratory DNA tests to include family medical history, requests for genetic services, and information related to genetic research participation. The statute prohibits requesting or using genetic information as a condi - tion of employment and provides for liquidated dam - ages of USD2,500 for each negligent violation and USD15,000 for each reckless or intentional violation. To date, most GIPA litigation has focused on employ - ment‑related claims, particularly those arising from pre‑employment physicals or questionnaires that allegedly probed into an applicant’s family medical history. Courts have permitted claims to proceed past the pleading stage where allegations plausibly involved “genetic information” as defined under HIPAA and incorporated into GIPA; at the same time, some decisions have narrowed the scope of viable claims by distinguishing between enquiries about a plain - tiff’s personal medical condition – rather than familial conditions – or by finding Employment Retirement
Income Security Act of 1974 (ERISA) pre-emption in wellness‑programme contexts. Plaintiffs have also pushed to broaden the statute’s reach, bringing cases against genetic‑testing companies and tech platforms based on tracking‑pixel activity and other alleged dis - closures of genetic‑related data to third‑party analyt - ics tools. Going into 2026, the most significant developments will centre on class certification and merit‑based summary‑judgment rulings – neither of which have courts yet addressed in a meaningful way, but both of which are expected this year. Several of the earli - est‑filed 2023 cases are now reaching the procedural point where class certification briefing is imminent. Based on the issues raised in those cases and the dynamics already visible in the litigation, courts are likely to scrutinise Federal Rule of Civil Procedure 23 (a) and 23 (b)(3) requirements closely. Plaintiffs will emphasise uniformity: standardised forms, common onboarding protocols and employer‑wide practices that allegedly required disclosure of family medical history. Defendants, by contrast, will point to varia - tions in how oral medical‑exam questions were asked, differences across examiners, job sites and time peri - ods, and the threshold questions of whether the infor - mation requested qualifies as “genetic information” at all – elements that cut against commonality and predominance. Typicality and adequacy challenges are also expected, particularly where named plaintiffs underwent different screening processes or answered different medical enquiries than absent class members. Ascertainability concerns will likely be central as well; because many alleged violations involve oral exchanges during medi - cal exams with no written record, identifying who was actually asked a family‑history question may prove difficult. On the merits, early summary judgment decisions will likely address several recurring questions: • whether particular enquiries constitute “genetic information” under HIPAA’s definitions; • whether requests were truly made as a condition of employment;
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