Thursday, October 8, 2015

Respondent’s Failure To Respond To IDHR Charge Has Dire Consequences

In a recent decision, the First District Appellate Court upheld a default order and money judgment award against a clothing store in race discrimination case for its failure to file a verified response to IDHR charge of discrimination.

In Windsor Clothing Store v. Castro, 2015 IL App (1st) 142999,  Katrina Miles alleged that on September 4, 2007, she visited the Windsor clothing store in Chicago Ridge, Illinois. Miles, who identified herself as black, was followed by a sales associate the entire time she was in the store. No reason was given for this treatment and Miles alleged that non-black customers were not treated in the same manner.

On September 10, 2007, Miles filed a discrimination complaint with the Illinois Department of Human Rights (IDHR), against Windsor Clothing Store alleging a denial of the full and equal enjoyment of a public accommodation based on race, in violation of section 5-102(A) of the Illinois Human Rights Act, 775 ILCS 5/5-102(A)

Thereafter, the IDHR mailed a notice of the charge to Windsor’s Chicago Ridge address. Windsor was informed that it was required to file a verified response to the allegations within 60 days and, if it failed to do so, the IDHR would issue a notice of default. Windsor failed to file a written response even after it was given multiple opportunities to do so.  

According to the court records, this matter was handled by an employee in Windsor’s human resources department who may have neglected this matter although there was evidence that others in the company were aware of the charge. 

Under the Illinois Human Rights Act, once a complainant has filed a charge alleging a civil rights violation with the IDHR, the respondent is required to file a verified response within 60 days of receipt of notice if the charge. 775 ILCS 5/7A-102(B). The IDHR may then issue a notice of default to any respondent who fails to file a timely response unless the respondent can demonstrate “good cause” why the default should not issue. 

Good cause may be found where the respondent acts with “due diligence” and “was not deliberate or contumacious and did not unwarrantedly disregard the verified response process, as supported by affidavit or other evidence.” 56 Illinois Administrative Code Section 2520.405(c)(4)

Unfortunately for Windsor, the reviewing court found that it did not establish good cause in light of the undisputed evidence that the human resources employee received multiple notices from the Department in the 5 months before she left the company and was granted multiple extensions, but failed to take any action. Under these facts, Windsor failed to demonstrate that it acted with due diligence. The First District Appellate Court declined to vacate the order on appeal.  As a result, the judgment amount of $25,000 awarded in favor of the shopper was allowed to stand.

This case reminds employers of the fatal consequences for failure to timely respond to IDHR or EEOC charges of discrimination and the importance of understanding the timelines and legal filing requirements.