Ohle v. Neiman Marcus Group
65 N.E.3d 850
Ill. App. Ct.2017Background
- Catherine Ohle applied for an entry-level Dress Collections Sales Associate job at Neiman Marcus and received a contingent offer subject to a background check; Neiman Marcus declined to hire her after a third-party vendor reported she "failed" a credit check.
- Ohle sued under the Employee Credit Privacy Act (820 ILCS 70/1 et seq.), alleging Neiman Marcus refused to hire her because of her credit history in violation of the Act.
- The Act generally bars employers from inquiring into or using applicants’ credit history, but §10(b) creates exemptions where a satisfactory credit history is a bona fide occupational requirement if one of seven enumerated circumstances applies (e.g., access to personal/confidential information; custody of cash ≥ $2,500; signatory power ≥ $100).
- Neiman Marcus argued the sales associate role fell within three exemptions: (1) access to personal/confidential information (credit‑card applications), (2) custody/unsupervised access to cash ≥ $2,500, and (3) signatory power over business assets ≥ $100 (refunds/gift cards).
- The trial court granted summary judgment for Neiman Marcus, finding the sales associate position involved “access” to personal/confidential information. The appellate court reversed and remanded, holding the exemptions did not apply to the entry‑level sales associate role.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sales associates have "access" to personal or confidential information under §10(b)(5) | Sales associates merely receive or temporarily secure credit applications and turn them over; they do not read, retain, process, or have database access — so they lack the kind of "access" the exemption contemplates. | Receiving or inputting customer application data into POS and handling the hard copy constitutes "access" to personal/confidential information, so §10(b)(5) exempts the position. | Reversed trial court: "access" requires more than transient custody or conduiting; entry‑level associates are not the managers/select employees entrusted to process, keep, or retrieve sensitive data, so §10(b)(5) does not apply. |
| Whether sales associates have custody/unsupervised access to cash or marketable assets ≥ $2,500 under §10(b)(2) | Associates are supervised, subject to POS limits and surveillance; corporate policy limits cash handling and no Illinois store keeps $2,500+ unsecured in registers — exemption inapplicable. | Associates handle high‑value sales and may process transactions that total > $2,500, so the position involves custody of cash/marketable assets. | Held §10(b)(2) inapplicable: register cash and open merchandise are not "marketable assets" entrusted only to managers; associates lack unsupervised access to ≥ $2,500. |
| Whether associates have signatory power over business assets ≥ $100 per transaction under §10(b)(3) | Issuing refunds or gift cards is routine cashiering, not signatory authority to withdraw or transfer employer funds; exemption not intended to cover ordinary cashiers. | Associates can authorize refunds and gift‑card transactions exceeding $100, so they have signatory power over business assets ≥ $100. | Held §10(b)(3) inapplicable: "signatory authority" means authority to make decisions to withdraw/transfer employer funds (e.g., accountants, managers), not routine cashier refunds. |
| Whether summary judgment for defendant was appropriate | N/A (plaintiff opposed summary judgment) | Defendant bore burden to show no genuine factual dispute and that one of the exemptions clearly applied. | Reversed: genuine issues resolved by record show defendant failed to meet its burden to show any exemption made credit checks a bona fide occupational requirement; summary judgment for defendant improper. |
Key Cases Cited
- Irwin Industrial Tool Co. v. Department of Revenue, 238 Ill. 2d 332 (summary judgment standard)
- Advincula v. United Blood Services, 176 Ill. 2d 1 (statutory construction principles)
- DeLuna v. Burciaga, 223 Ill. 2d 49 (plain‑language application of statutes)
- Nelson v. Artley, 2015 IL 118058 (consider statute in its entirety; legislative intent)
- In re Marriage of Eltrevoog, 92 Ill. 2d 66 (construe statutory terms to avoid unintended results)