Alana Pilotto v. Urban Outfitters West LLC, 2016 IL App (1st) 160844
In Illinois, businesses must provide all employees, within each place of employment, restroom facilities and drinking fountains. Ill. Admin. Code tit. 77, § 890.810. However, not all businesses are required to provide restrooms for patrons, nor must they allow all patrons to use its employee restroom(s). But in August 2005, Illinois enacted the Restroom Access Act (also known as Ally’s Law) mandating that a business grant access to its employee restrooms to people with Crohn’s disease or other inflammatory bowel diseases if a public restroom is not nearby.
More importantly, the 1st District Appellate Court ruled that the state Restroom Access Act allows for both a common law and private right of action against businesses who refuse to let customers use a non-public toilet. The court came to its conclusion after Alana Pilotto embarrassingly defecated in public because she was denied access to the employee restroom at an Anthropologie store in Oakbrook Center.
Section 10 of the Act sets forth the duty imposed by the Act and provides, in full:
A retail establishment that has a toilet facility for its employees shall allow a customer to use that facility during normal business hours if the toilet facility is reasonably safe and the following conditions are met:
- The customer requesting the use of the employee toilet facility suffers from an eligible medical condition or utilizes an ostomy device
- Three or more employees of the retail establishment are working at the time the customer requests use of the employee toilet facility
- The retail establishment does not normally make a restroom available to the public
- The employee toilet facility is not located in an area where providing access would create an obvious health or safety risk to the customer or an obvious security risk to the retail establishment
- A public restroom is not immediately accessible to the customer.” 410 ILCS 39/10 (West 2014)
Pilotto and Anthropologie satisfied the statutes’ touchstones. The court reasoned that the language of the Act expressly contemplates civil liability for violations of the Act through section 15, which provides limited immunity for injury caused by a retailer’s compliance with the Act. See 410 ILCS 39/15(a) (West 2014).
There would be no need for immunity if there was no civil liability for a retailer’s conduct under the Act. Therefore, “it would make no sense for the statute to be read in such a way that a retailer can be held civilly liable for its actions when complying with the Act, but could not be held civilly liable for not complying with the Act at all.” Under this implied theory of a private right of action, the case was reversed.