Racial Profiling: Lessons Retailers and Shopping Malls Should Learn From the Law Enforcement Experience
 
June 27, 2006
 

For more than a decade, law enforcement agencies across the U.S. have struggled with allegations of racial profiling. Many of the country’s large law enforcement agencies have been sued for alleged racial profiling, including the California Highway Patrol, the Ohio Highway Patrol and the Illinois State Police. The results of these lawsuits have been mixed. Some agencies prevailed, such as the Illinois State Police, and many other agencies reached settlements. These suits were extremely expensive to litigate, and the settlements were, at times, just as expensive. But regardless of the financial outcome of the litigation, other damage caused by these allegations to the agencies was massive. The public’s trust and confidence in these departments, to the extent it had existed, was breached. The damage occurred, in large part, because perception is often as or more important than reality. All agencies and their personnel become tainted, fairly or not, with the stigma resulting from the actions of a few.

Retailers and shopping malls can learn much from the experiences of law enforcement agencies and their struggles with the issue of racial profiling. Each year, new suits are filed against merchants alleging some form of racial profiling. Although “shopping while black” may unfortunately not be a new phenomenon to some, the legal consequences of alleged incidents are beginning not only to make headlines but to find their way into court opinions as well. Indeed, in this post-9/11 world, the issue of racial profiling may be raised more often, due to attempts by malls to increase security against terrorist attacks. For example, in 2004, eight Muslims were allegedly detained by Albuquerque police and security at the Coronado Mall because security believed it had “a bunch of terrorists.”

Lesson #1: Recognize and Identify the Issue

Surprisingly, many if not most law enforcement agencies were caught off guard by claims of racial profiling. For years, “driving while black” (often referred to as DWB) and related terms were part of the public consciousness. Like it or not, Hollywood and pop culture are often bellwethers of social justice issues. Throughout the 1980s and early 1990s, movies, situation comedies and even stand-up comedians discussed the issue of racial profiling by law enforcement. Even “The Fresh Prince of Bel Aire” featured an episode about racial profiling. And the fact that Rodney King, an African-American, was beaten following a traffic stop, was not lost on large segments of America. Moreover, mainstream newspapers and television news programs presented stories of racial profiling. Nevertheless, during that time, very few if any law enforcement agencies had explicit policies prohibiting racial profiling. Most departments did not adopt such policies until after the avalanche of litigation and public scrutiny. In fact, the Commission on Accreditation of Law Enforcement Agencies, the country’s premier law enforcement accrediting body, did not require departments to possess such policies until only a few years ago.

It does not take much imagination to see the same scenario occurring in retail establishments. Just as with law enforcement, newspapers and television news programs are now raising the issue of racial profiling by shopping mall operators and retailers. Similarly, television situation comedies, such as “That’s So Raven,” have addressed the issue of retailers engaging in racial profiling. Indeed, one of the most famous women in America – Oprah Winfrey – has publicly discussed her claim of being subjected to racial profiling by an upscale merchant. Just as with claims of racial profiling by law enforcement, this type of media exposure brings the issue into the mainstream consciousness and furthers the perception – whether true or not – that retailers routinely engage in this activity.

More importantly, racial profiling litigation against some of the country’s most prominent retailers has been widely publicized. In two separate lawsuits, a drugstore retailer is defending against claims of racial profiling. According to the Chicago Tribune, in Chicago, Illinois, three former employees of the drugstore retailer have filed suit alleging that white supervisors forced them to follow black customers to ensure that they “did not steal anything from the store.” Three black customers are also plaintiffs in that suit, alleging they were subjected to this conduct. Similarly, in Reno, Nevada, black customers alleged that the drugstore retailer’s clerk became hostile toward them, used racial slurs and refused to serve them. According to the plaintiffs, the drugstore retailer claimed corrective measures would be taken, but none were. Also, the New York Times reported that in New York City, a national department store reached a $600,000 settlement with the New York Attorney General to resolve claims by black customers who were allegedly subjected to racial profiling. After a lengthy inquiry, it was determined that 75 percent of the shoppers detained on suspicion of shoplifting were black or Latino – a much higher percentage than blacks and Latinos shopping in the stores. In addition, a national clothing retailer was sued for false imprisonment when it held blacks for allegedly shoplifting.

In light of the media focus and high-profile lawsuits, it is reasonable to believe that more litigation will soon be filed. Retailers should be prepared. Retailers should learn from the law enforcement experience, namely, that identifying the issue of racial profiling and its consequences is the initial step in preventing the activity and, hopefully, in preventing litigation.

Lesson #2: Know the Possible Claims

The best way for any entity to address an issue is to know how it could be held liable. Preventive measures are difficult to institute without knowing how you will be held accountable. Without knowing what evidence a plaintiff is going to use, it is difficult to erect barriers to prevent those incidents from occurring in the first place.

Law enforcement was at a disadvantage because, until recently, there were no well recognized causes of actions for racial profiling. There were some guideposts showing possible causes of action against law enforcement officers and entities. These included claims based upon equal protection and Title VI of the Civil Rights Act. But in the context of racial profiling, the precise contours of the specific causes of action and the elements that needed to be proved were less than clear. After nearly a decade of litigation, however, the elements of causes of action to remedy racial profiling are better recognized.

Retailers and shopping malls are in a slightly better position of knowing the potential causes of action against them for racial profiling. The following are clear causes of action a plaintiff alleging racial profiling by a retailer could allege, depending on the precise circumstances presented: Section 1981 of the Civil Rights Act, false imprisonment and intentional infliction of severe emotional distress. These causes of action have well-defined elements. For example, the United States Supreme Court has held that to state a cause of action under Section 1981, a plaintiff must show purposeful discrimination based upon race. But the issue of whether certain retailers and shopping malls would fall within the scope of Title II of the Civil Rights Act of 1964 for discriminating in a “public accommodation” is less clear. The legislative history of the Civil Rights Act seems to make it clear that retail stores were specifically excluded from the Act. The Congressional Record for the Civil Rights Act shows that Senator Humphrey stated that “Retail stores, food markets, and the like were excluded from the Act for the policy reason that there was little, if any, discrimination in the operation of them.” But some courts have given an expansive reading to “public accommodations” under the Civil Rights Act, such that some retail establishments fall within the definition. For example, the Ninth Circuit Court of Appeals found that a convenience store with two video games was a “public accommodation” because it was a place of amusement. Also, the Fifth Circuit Court of Appeals found a neighborhood tavern to be a “public accommodation” as a place of amusement even though less than 3 percent of its revenue was obtained from a juke box, pool table and shuffle board game. Of course, a retailer that may be exempt under the federal Civil Rights Act may still be liable under a corresponding state act. For example, the Illinois Human Rights Act prohibits discrimination in “public accommodations,” including “department stores, clothing stores, hat stores [and] shoe stores.”

Lesson #3: Prevent the Activity and Prepare for Allegations

The law enforcement community was unprepared for the onslaught of allegations of racial profiling it faced because it never anticipated racial profiling becoming an issue with massive legal and administrative consequences. Because the law enforcement community was generally unprepared, the result included costly litigation and onerous settlements, as well as a decrease in public confidence. Many of these consequences might have been avoided if the law enforcement community initially recognized the issue and then prepared to address it.

Two goals of the retail industry should be to avoid litigation and not be tainted by the issue. Without a doubt, the best path to those twin goals is to ensure that racial profiling does not occur. But even if retailers and shopping malls recognize the issue and take action to prevent it, there is no guarantee that they will not be sued. Nevertheless, they will be better able to defend against such lawsuits if they are proactive.

Interestingly, many of the same preventive measures that the law enforcement community adopted to prevent, catch and/or defend against allegations of racial profiling are transferable to the retail setting. The three most common measures are (1) supervision, (2) policies that are known by employees and enforced by employers, and (3) data collection.

Proper supervision is essential. Employers must supervise employees so they do not racially profile customers. In fact, unsupervised employees can cause a retailer or shopping mall to be liable in an untold number of ways beyond racial profiling. Hiring good people and monitoring their behavior are key steps. One important method of supervision is monitoring complaints. If a retailer or shopping mall receives a complaint about alleged racial profiling, it should swiftly and thoroughly investigate the allegation to determine if it is meritorious. Some allegations may arise because of a communication breakdown, but others may be justified. If an allegation of racial profiling is found to be true, corrective measures should be instituted immediately.

An explicit written policy prohibiting racial profiling is extremely advisable. The use of an anti-racial profiling policy can be analogized to an anti-sexual harassment policy. Nearly every employer possesses a policy prohibiting sexual harassment. But the better employers notify and train their employees about their policy. The more careful employers require their employees to sign a statement indicating that they understand their anti-sexual harassment policy and will abide by it. And the even more careful (some might say overly cautious) employers have their employees attend training on an annual or semi-annual basis and sign the policy before each year’s holiday party. Of course, the best employers enforce their policy. But how many retailers or shopping malls have a policy prohibiting racial profiling? The best guess is not many. And without an explicit written policy, the chances of training employees not to engage in this activity are nominal at best. Best practices would require the adoption of an explicit anti-racial profiling policy, one that is signed by employees and enforced by employers. This practice alone would go a long way in not only defending against allegations of racial profiling but also in preventing racial profiling from occurring in the first place.

Collecting data can also be useful. In the law enforcement context, data collection refers to the recordation of driver information each time a motorist is stopped. The data is then compared to a benchmark to determine anomalies between the expected number of minorities that would be stopped and the number that are actually stopped. In the law enforcement community, data collection is a controversial practice, but one that is almost universal. Like all statistical analyses, data collection assumes accurate data. But this assumption can often be wrong. Unless an accurate benchmark exists, comparing the data collected to that benchmark is uninformative. A department may know the correct denominator (i.e., the number and races of motorists stopped) but not know the numerator (i.e., the racial percentage of motorists traveling on a given roadway at a given time). In the context of a retailer or shopping mall, the ability to determine the racial breakdown of patrons would not be as difficult and probably more accurate. A retailer or mall could simply keep a running tally of patrons and their races visiting the store or mall. And with the prevalence of in-store video cameras, the count could take place in a discrete location and at a convenient time. However, knowing the racial breakdown of customers is still only half the information needed. Retailers and malls would still need to collect data regarding the races of individuals detained or questioned for alleged shoplifting or other unlawful behavior. Only with both sets of data can an accurate statistical analysis be made. Thus, for example, the settlement reached between a national department store and the state of New York was based upon a study indicating that the percentage of those shoppers detained on suspicion of shoplifting that was black or Latino was much higher than the percentage of blacks and Latinos visiting the stores. Whether data collection will be used as universally by retailers and malls as it is by law enforcement remains to be seen.

Conclusion

The retail industry is at an important juncture on the issue of racial profiling. The law enforcement experience was, and still is, a long and painful one. Retailers and malls should learn from the law enforcement experience and (1) recognize the issue exists, (2) understand how they could be held liable, and (3) institute policies and procedures to prevent racial profiling from occurring in their establishments. The opportunity to take these measures exists now, before public scrutiny, pressure and lawsuits ensue.

For more information, e-mail Iain D. Johnston at iain.johnston@hklaw.com or call toll free, 1-888-688-8500.

This article by Iain D. Johnston was published in two parts in Commercial Leasing Law & Strategy. Part one was published in May 2006 and part two was published in June 2006.