New York Law School

Consumer Racial Profiling: The Crime without Redress or Repercussions

America has a very long and documented history of racial profiling against people of color. Discriminatory practices like stop and frisk and poll taxes have been present in this country since the dawn of our government. Although the Civil Rights Act of 1964 aimed to outlaw these forms of discrimination, many of these practices simply morphed into much “subtler” versions of themselves. In particular, the unfair treatment of Blacks by law enforcement and the judicial system has been as present as ever. This continued stain of Black enslavement and repression is evidenced by disproportionately high arrest rates and stricter prison sentences for Blacks, as well as targeted efforts to vilify the Black population. Thanks to the efforts of President Barack Obama, Black Lives Matter, Social Media, and activists throughout the country, many of these issues are now being brought to the political mainstream, yet there still is much to be done in the fight against racial injustice. This fight is especially challenging in the realm of retail and private businesses. You see, just as police and judicial abuse against Blacks represents a legacy of Black legal inequality, Consumer Racial Profiling represents a legacy of public and societal inequality.

Consumer Racial Profiling (CRP) is the act of storeowners and/or their employees following, harassing, or ignoring individuals while they shop in their stores simply due to the shopper’s apparent race. While CRP affects people of all colors and backgrounds, it is Blacks that are most frequently targeted. In a 2004 Gallup poll, 65% of Black respondents reported widespread racial profiling when shopping in malls and stores. Hence why CRP is also known as “shopping while Black”, drawing on the similarities to “driving while Black”. These racially charged interactions often lead to Black people being publicly embarrassed due to unfounded accusations of stealing, being searched for goods that they did not steal, or even being wrongly detained or apprehended by police officers.

In a perfect world, victims of CRP would be able to file suit and obtain redress from injuries they have sustained due to racial discrimination. However, the notable federal civil rights and public accommodation laws fall short of directly addressing these issues. Instead, victims of CRP often must file suit under common law claims such as defamation, false imprisonment, intentional infliction of emotional distress, or under federal laws not completely on point, all of which are difficult to state and prove a claim based on racial discrimination. Even when the discrimination is obvious, bringing a suit is discouraged due to the financial and emotional costs involved in litigation and the inadequacy or uncertainty of relief awarded in these cases.

For example, 42 U.S.C. § 1981, which states that all people shall have the equal right to “make and enforce contracts”, is often the federal law relied on by CRP victims. In order to make a successful claim under 42 U.S.C. §1981, there are several elements that must be met: 1) You must be a member of a protected class; 2) You must prove discriminatory intent on the part of the defendant; 3) You must have been engaging in a protected activity; and 4) The defendant interfered with that activity.

Although relatively straightforward, in practice these elements are very difficult to prove, and thus render 42 U.S.C. §1981 nearly impossible to enforce against retail companies engaging in discriminatory profiling practices. For example, take the case of Gregory v. Dillard, where a Black woman was followed into a fitting room and closely watched by two police officers after a sales clerk wrongly accused her of shoplifting. She subsequently refused to purchase any items in the store because she was offended by the employees’ conduct. The court stated that the plaintiff’s claim was insufficient because “active trailing of a minority shopper in a store amounts to no more than an unadorned and legally insufficient claim that the plaintiff was carefully watched while on the premises.” Garrett v. Tandy Corp., 295 F.3d at 101 (1st Cir. 2002). According to the court, absent an outright refusal to contract or attempt to “block” the contractual relationship, there is no cause of action for discriminatory practices and treatment of minorities in stores. Gregory v. Dillard’s, Inc., 565 F.3d 464 (8th Cir. 2009). In other words, being racially profiled and watched in a store alone is not enough to state a claim. Thus, interpreting the 4th element of 42 U.S.C. §1981 as the courts do, a defendant has not officially interfered with the protected activity of purchasing goods until they have made a concerted effort to refuse or block you from purchasing those goods. As stated by the court, “a claim must allege that the plaintiff was actually prevented, and not merely deterred, from making a purchase.” But where does the line fall between being prevented, and being deterred? Is being harassed while shopping not an attempt at preventing a fluid and positive contractual relationship? Furthermore, according to the court, “the mere expectation of being treated without discrimination while shopping” is NOT a protected activity as specified in the 2nd element of 42 U.S.C. §1981, only the actual purchasing of goods is. This means a retail employee that is particularly suspicious of Blacks can literally follow a Black person around the store without repercussions, so long as they don’t forcefully attempt to stop them from making a purchase. How’s that for equality?

In another case, Shugri v. Home Depot USA, a Black Muslim-American was asked to show her receipts for blinds she purchased as she exited Home Depot. However, several White patrons both before and after her were not asked for their receipts. Shugri refused and loaded the blinds in her car and drove off, only to be stopped and searched by police officers a mile down the road. She was then forced to wait for a Home Depot employee to arrive at the scene in order to identify her, at which point Shugri furnished her receipt and was told she was free to go. The court found that Shugri did not satisfy the elements of a claim under §1981 because she did not allege any facts that show discriminatory treatment DURING her purchase, but only AFTER her purchase. According to the court, once a transaction has been completed, no contractual duty remains that could support a claim under §1981. This case again proves that discrimination will continue to be tolerated in public settings so long as the laws allegedly in place to prevent bigotry are interpreted as narrowly as this case.

Not only are retail companies not accountable to the law in many cases, but they also are rarely accountable to themselves. Unlike police officers, which commonly are required to record the race of those they stop and the reason for stopping them, there is no legislation that requires retailers to record the race of customers they snub, belittle, follow, or accuse of stealing. Thus, most stores have no real system in place to keep potential discriminatory practices in check. This has created a slippery slope of employees feeling like they have carte blanche to act on their prejudices by racially profiling Black shoppers.

Proponents of CRP often justify their actions by saying it is Blacks who steal more, however that has proven to be false. According to the FBI’s UCR database, in 2012 approximately 70 percent of larceny/shoplifting arrestees were White. This is on top of the fact that Blacks are put under greater surveillance the moment they walk into a store (typically due to the misconception that minorities account for most of the shoplifting and other criminal activity in retail establishments). The reality is that non-minority shoppers are who account for most of the shoplifting, according to the FBI. Thus, it is in the best interest of retailers to ensure their employees do not racially profile patrons in their store. Not only are they losing money due to shrinkage caused by shoplifters that are never suspected, but they are also losing potential repeat business from Blacks that are treated unequally in their stores. CRP is simply not effective. Take this study done by the University of Florida, which proved that shoplifters could be more readily identified by behavior, not race. By watching a patrons mannerisms, such as fidgetiness, constant gazes at security cameras, and other notable patterns in behavior, loss-prevention agents were able to thwart shoplifting at much higher success rates than simply picking out a shoplifter based on looks alone.

Some retailers deny that they racially profile Black people, and instead say that they only profile people that dress “ghetto”. However, this has also proven to be false. It does not matter how well-off, well-dressed, or well-versed, a Black person is—the color of our skin is the ultimate determination as to whether we are to be profiled or not. For example, Oprah Winfrey, one of the ten richest Black people in the world, has been a victim of consumer racial profiling. While shopping for an expensive handbag overseas, a store employee refused to allow her to see a particular bag that she liked because “it would cost to much and she would not be able to afford it”. Her case is far from a rarity for affluent Black folks. John Henson, an NBA player, was barred from entering a jewelry establishment because of his “threatening” (read tall and Black) appearance. Before he could even get to the door, a store employee locked the doors and asked him to go away. Police arrived shortly thereafter upon a store employee calling them for help and questioned him about his motives. Oprah and John Henson are Black, and THAT is what made them a suspect to those retailers.

Due to the above difficulties, CRP has become a largely unreported issue. Being racially profiled, whether in stores or by the police, has become routine for many Black people. Everyday racism is simply a fact of life. Furthermore, a lack of knowledge in regards to the existence of state civil rights agencies also prevents CRP from being reported more heavily. Additionally, due to the difficulties of actually enforcing laws meant to prevent discrimination, there is little incentive to filing suit. Lastly, even if one does file a suit and gets to plead his case in front of a jury of his peers, more often than not those jurors are White, and thus cannot relate to what it may feel like to be racially profiled (preventing a victim from being taken seriously).

Rather than acknowledging the clear existence of racism in the US, there are those that would like to “victim blame” Black people for the discrimination they face by stating it is the way they dress or act that causes them to be profiled. However, this is just another example of the Black plight being demeaned into non-existence. CRP and discrimination, and the lack of resolve to address them in general, are symptoms of an unwillingness to address racism in this country, as recognized by the widespread refusal to recognize the existence of a problem by society and courts alike.

Nevertheless, there are in fact potential ways we could alleviate or improve issues with CRP. By amending public accommodation laws both at the federal and state level to include retail stores as a place of public accommodation would send waves throughout the retail community that discrimination is NOT tolerable in any circumstance. These laws could also allow victims to recover compensatory damages in order to increase it’s utility. Our government could also provide more funding to state civil rights agencies. More funding would allow those agencies to represent more individuals that have been victimized by consumer racial profiling.

However, we as a society must continue to actively and vocally oppose racial profiling in all its forms, because allowing discriminatory methods to occur with no redress or repercussions will legitimize the practices for others in the future. And until new laws are enacted that protect consumers from racial profiling and outlaw all forms of discrimination, or federal courts start to construe the current civil rights statutes more broadly, a dollar in the hands of a Black person will never be worth the same as a dollar in the hands of a White person.

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