Labor & Employment Law I NOVEMBER 11, 2015

Employer Bungles Handling of Discrimination Charge

Here’s how not to do it.  Katrina Miles, who is black, was a regular customer of Windsor Clothing Store’s Chicago Ridge store. On September 4, 2007, she was the only African-American customer in the store. “Karolina,” a Windsor employee, followed Miles from one end of the store to the other during the 30 minutes she was shopping. Karolina never asked Miles if she needed assistance.

Miles observed several white teenagers in the fitting room, making noise and slamming doors, but no store employee went to that area. Miles asked to speak to the store manager, who apologized and said that she would inform the district manager of the incident.
Miles cried all the way home and was “totally distraught” when she called her fiancé to tell him what happened.
Miles got a call about a week after the incident from Kelly Meyer, the district manager.  Meyer received a voice mail message from the store manager informing her of the incident, but Meyer had been traveling that day and did not retrieve the message until nearly midnight.
Meyer asked Miles to explain the incident from her perspective. Miles seemed “very disturbed by the situation and, obviously, unhappy with what had occurred in the store.” Meyer apologized to Miles, but said that her apology was in the context of Miles having a mistaken perception of what had occurred.  Meyer offered Miles a personal shopping experience with a store manager at another location, but Miles declined.
Miles filed a discrimination complaint with the Illinois Department of Human Rights. The Department mailed a notice of the charge to Windsor’s Chicago Ridge address.
Because Windsor did not submit a verified response by July 15, 2008, the Department mailed Windsor a notice to show cause on July 22, 2008. Windsor was given 15 days to respond and was instructed to show cause why a notice of default should not issue.
Windsor did not submit a verified response, nor did it show cause why a notice of default should not issue. The Department mailed Windsor a notice of default, which informed Windsor that it could seek review of the default by October 15, 2008. Windsor did not request review of the notice of default.
The Department entered a default order against Windsor and the matter was referred for a hearing on damages.  Windsor filed an emergency motion to vacate the default, but the ALJ denied the motion on the grounds that she lacked the authority to vacate the default, and the hearing proceeded as scheduled.
Since the day of the incident, if Miles notices that she is the only black person in a store, she constantly looks over her shoulder to see if anyone is following her. She has also, at times, become standoffish and defensive when sales associates ask her if she needs help, questioning why they are asking and whether they also offered to assist other customers.
Miles experienced difficulty sleeping since the incident and sometimes wakes up in the middle of the night and cries for no reason. She has experienced headaches intermittently.
The ALJ entered a Recommended Order and Decision recommending an award of $25,000 to Miles for emotional damages suffered as a result of Windsor’s actions. In her findings of fact, the ALJ noted that Windsor is a clothing store and that Miles claimed denial of full and equal enjoyment of a public facility.
The Illinois Human Rights Commission entered an order on January 20, 2014, declining further review and adopting the ROD as its final order.  Windsor took an administrative appeal to the Illinois Court of Appeals.  The appeal was unsuccessful.
Windsor had been given multiple opportunities to submit a verified response, even past the 60-day deadline, and was even provided with a sample to use as a guide. It was then given extended opportunities to either avoid or challenge the default order. Windsor’s failure to (1) provide a verified response, (2) show cause why it could not provide such a response, and (3) file a timely request for review of the default order constituted a deliberate and contumacious disregard for the Department’s authority and the default order was justified.
Windsor contended that Miles was not entitled to emotional distress damages, and further argued that, in the event the court determined damages were appropriate, an award of $25,000 was excessive.
The appeals court pointed out that the ALJ found that since the incident, Miles was very conscious in situations where she was the only African-American in a public place and looked around to see if anyone was following her. Miles was also very standoffish and defensive because of the incident. Miles cried on the way home, has experienced difficulty sleeping, and still cried about the incident. The ALJ had further noted that Windsor failed to rebut any of Miles’ testimony regarding her emotional distress. Finally, the ALJ concluded that Miles’ emotional distress was compounded by Windsor’s failure to respond to her concern in an appropriate manner by acknowledging that there was a problem with the activities of “Karolina” and not just a “misunderstanding” on Miles’ part.
Although Windsor cited several Commission orders in which lesser amounts were awarded for emotional distress, courts in Illinois have traditionally declined to compare damages awarded in one case to damages awarded in other cases in determining whether a particular award is excessive.  The amount of damages awarded to a prevailing claimant by the Commission would not be disturbed on review absent an abuse of discretion.
The Illinois Human Rights Act seeks to promote Illinois’ public policy of securing for all individuals within Illinois freedom from discrimination on the basis of race in places of public accommodation. To that end, the Act prohibits the denial of full and equal enjoyment of the facilities, goods, and services of any place of public accommodation. The Act authorizes the Commission to award damages for any injury or loss suffered, and such damages include damages for emotional harm and mental suffering.
The ALJ found that Miles suffered emotional distress and that distress was compounded by Windsor’s failure to acknowledge its sales associate’s discriminatory conduct. The Commission adopted those findings and the recommended award of $25,000 in damages. The appeals court could not say that an award of this amount contravened legislative intent, failed to consider a critical matter, or was outside the agency’s expertise.  The lesson?  Be sure to file a timely verified response to the Charge of Discrimination to avoid a possible default.
Windsor Clothing Store v. Castro, 2015 IL App (1st) 142999