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Jeremy D. Bayless and Sophie F. Wang

Permission requested:  Jeremy D. Bayless and Sophie F. Wang, Racism on Aisle Two: a Survey of Federal and State Anti-discrimination Public Accommodation Laws, 2 William & Mary Policy Review 288 (Spring, 2011) (112 Footnotes omitted)

      In the Eighth Circuit Court of Appeals case Gregory v. Dillard's, black shoppers entering the Dillard's retail store in Columbia, Missouri claimed that they were entering a different store than white shoppers. They entered a store where a special security code was often announced when they crossed the threshold, where store employees closely followed them, and where they were suspected of being shoplifters solely based on the color of their skin. Generally, black customers of restaurants, movie theaters, and gas stations are protected from such discrimination by federal and state law. Discriminatory consumer profiling in retail stores, however, presents a more complicated issue. Federal law provides that all citizens have the same right to make and enforce contracts as white citizens. On the state level, various states have enacted laws prohibiting racial discrimination in places of public accommodation. Unfortunately for black customers, federal law only partially protects them from discrimination while they are shopping in a retail store. Furthermore, while several states have included retail stores within their definition of places of public accommodation, others, including Missouri (where the alleged discrimination in Gregory v. Dillard's took place), do not. The result is that neither black shoppers nor retail stores have a clear understanding of what actions are prohibited in stores across the nation.

      The facts of Gregory v. Dillard's provide several examples of the type of scenarios that black shoppers can face in retail settings and how the law deals with those circumstances. Plaintiff Crystal Gregory claimed that she was watched in the store on the basis of her race and that store employees were rude and unhelpful to her, while Plaintiff Michael Richmond claimed that he was denied service and directed to cheaper merchandise because of his race. Neither of these shoppers prevailed on their claim in the Eighth Circuit Court of Appeals, but an examination of their shopping experiences and the results of their suits can illustrate areas where federal and state anti-discrimination laws can be improved.

      Crystal Gregory was shopping for clothes in Dillard's when she felt that the store employees treated her discriminatorily. As Gregory approached the fitting rooms with several articles of clothing, a store employee asked her if she needed assistance. Gregory declined assistance and entered the fitting room to try on the clothing. When she emerged, she noticed that two security guards had come to stand by the fitting rooms. As she walked by the employee who had offered to assist her, Gregory claims the employee gave her a “snicker” and began to follow her through the store. Because she felt that the security guards had been summoned and that the store employee had been rude on account of her race, Gregory abandoned her merchandise and asked to see a manager. After finding the manager to be of little help, Gregory left Dillard's without making a purchase.

      Michael Richmond had two separate encounters that he claimed involved racial discrimination. The first involved an attempt to purchase several items. Richmond carried items he intended to purchase to a store employee at a sales counter. The employee, however, repeatedly refused to ring up his merchandise. Rather, she walked away from Richmond, who followed her from station to station until he finally abandoned his items.

      Richmond's second incident involved an exchange at a jewelry counter. When he asked to view an item in a display case, the employee behind the counter told Richmond the price of the item and then directed him to less expensive merchandise. Richmond again asked to see the item he had originally requested. When the employee continued to emphasize the price of the original item and refer him to merchandise in the markdown counter, Richmond responded angrily, “I want to see this shit here,” to which the employee replied, “you have no reason to be rude.” Richmond then complained to an assistant manager and left the store.

      In both instances, Crystal Gregory and Michael Richmond felt that they were discriminated against on the basis of their race. However, as the Eighth Circuit noted, they lacked a legal remedy. This article will examine how and why their claims were unsuccessful in order to illustrate the flaws in federal and state anti-discrimination law that should be remedied.

      Part I of this article examines the flaws in federal public accommodations and anti-discrimination law, which ultimately provides minimal protection to non-contractual situations. Part II examines the varying state laws, which are on the whole inconsistent and unclear as to the scope of the protection they offer. Finally, Part III proposes that significant amendments be made to both federal and state law to specify the exact extent to which retail stores are included in order to remove unwanted vagueness from the law. Part III also discusses the policy considerations implicated by any such proposed changes.

      While it is certainly true that not every black shopper who feels that he was discriminated against should win in court, a shopper who is denied relief should be denied for fair and logical reasons that are consistent with the law and Supreme Court precedent. Amending federal and state statutes to clarify what does and does not qualify as protected actions would further the original purpose of protecting citizens from racial discrimination while also holding retail stores to a reasonable standard.