USA – ILLINOIS Trends and Developments Contributed by: Paul Yovanic, Jason Priebe, Ada Dolph and Michael Jacobsen, Seyfarth Shaw LLP
• employment decisions influenced by an indi - vidual’s genetic information; and • retaliation against employees who assert violations of the Act. Like BIPA, GIPA includes a private right of action and a tiered statutory penalty damages model: USD2,500 per negligent violation and USD15,000 per intentional or reckless viola - tion. Given the similarities of the language in the damages provisions of BIPA and GIPA, it is likely that an Illinois court would find that the damages under GIPA are also discretionary, as held in the context of BIPA in Cothron. Most GIPA lawsuits involve claims related to employment applications or post-offer medical exams requesting genetic information in violation of the law. However, over the past year, plaintiffs have sought to expand GIPA’s scope by target - ing technology companies that use tracking tools for marketing purposes, arguing that GIPA also prohibits disclosing genetic test results or identifying information in a way that reveals the subject’s identity. Courts, so far, have generally been hesitant to rule on challenges related to the definition of genetic information at the motion to dismiss stage, or have rejected arguments that the information purportedly solicited was not genetic information given the broad allegations of the complaint. Notably, however, one court has ruled on a motion to dismiss that a plaintiff’s claim regarding the use of genetic information in a company wellness programme was pre- empted by the Employment Retirement Income Security Act (ERISA). Currently, GIPA lawsuits are far fewer in num - ber than BIPA cases filed in the first two years following the Rosenbach decision. The slower pace is likely due to GIPA’s inherent complexi - ties, including determining what qualifies as
genetic information and whether the informa - tion was solicited as a condition of employment or for another legitimate purpose, such as non- privacy regulations, like those imposed by the Occupational Safety and Health Administration (OSHA). It is anticipated that some of the cases filed in 2023 will be due for class certification briefing this year, and even summary judgment, which will provide clarity on whether plaintiffs can maintain the claims alleged, or whether the defences and justifications for the alleged con - duct can defeat the claims. AI in the workplace Illinois has had AI employment restrictions in place since 2019 – long before AI went main - stream. The Illinois Artificial Intelligence Video Interview Act (AIVIA, 820 ILCS 42/ et seq.) gov - erns employers’ use of AI analysis in video inter - views. Similar to the requirements under BIPA, AIVIA requires employers using “an artificial intelligence analysis” of job applicants’ video interviews to provide various notices, obtain certain consents, and have specific-data man - agement practices. In 2024, Illinois expanded its focus on AI in the workplace when the legislature passed and Governor Pritzker signed into law Illinois House Bill 3773, which requires employers to provide notice to applicants and employees that the employer is using AI for various employment decisions, prohibits the use of zip codes, and contains an explicit statement that employers may not use AI in a way that subjects employees to discrimination. The reach of the new law’s disclosure obliga - tion is expansive, covering an employer’s use of AI in “recruitment, hiring, promotion, renewal of employment, selection for training or appren - ticeship, discharge, discipline, tenure, or the
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