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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.


      The two relevant federal anti-discrimination laws are Title II of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Title II is the federal public accommodation law intended to prevent racial discrimination in public establishments. Title II does not, however, consider retail stores as places of public accommodation. Thus, black shoppers facing racial discrimination in retail stores must look elsewhere for federal relief. The other option is found in 42 U.S.C. § 1981. Section 1981 provides that all citizens have the same right to the privileges, benefits, terms, and conditions of contracts as white citizens. Black shoppers seeking relief under § 1981 must show that they sought to create a specific contract, rather than merely experiencing racial discrimination while browsing. Because of this strict contractual requirement, federal law, as it stands, is insufficient to adequately protect black shoppers from racial discrimination in retail stores.


      Title II of the Civil Rights Act of 1964 prohibits racial discrimination in places of public accommodation, stating, “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation ... without discrimination or segregation on the ground of race, color, religion, or national origin.” Unfortunately for black shoppers, Title II provides a list of places that qualify as public accommodations that does not include retail establishments. Rather, Title II defines “places of public accommodation” as including hotels, restaurants, theaters, and establishments located within hotels, restaurants, or theaters. Additionally, Title II includes any restaurant or other facility engaged in selling food for consumption on the premises, “including, but not limited to any such facility located on the premises of any retail establishment.” At least two federal courts have held this list to be exclusive. Courts have held that “[t]he clear implication of this provision is that Congress did not intend to include retail establishments--thus the need to make clear that restaurant-type facilities within a retail establishment were covered under 42 U.S.C. § 2000a(b)(2). If retail establishments were also intended to be covered, there would be no need for this provision.” The legislative history tends to agree with courts; retail establishments were not included in Title II because discrimination in retail stores was considered less prevalent than in the included establishments. As Senator Humphrey put it in 1964 in his comments before the Senate of the 88th Congress:

       Discrimination in retail establishments generally is not as troublesome a problem as is discrimination in the places of public accommodation enumerated in the bill. And it seems likely that if discrimination is terminated in restaurants and hotels, it will soon be terminated voluntarily in those few retail stores where it still exists.

      Unfortunately, Senator Humphrey's vision of society fifty years later was incorrect, as Title II's exclusion of retail establishments did not terminate discrimination voluntarily in those places, but rather served to deny relief to consumers who in fact had legitimate claims. Thus, because retail establishments are not specifically listed and do not fall into any of the expressly enumerated categories of places of public accommodation, Title II does not appear to adequately protect black shoppers from racially discriminatory treatment in retail stores.

B. 42 U.S.C. §1981

      The Civil Rights Act of 1866, codified as 42 U.S.C. § 1981, ensures that “all persons ... shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens.” While the Civil Rights Act of 1991 expanded the scope of § 1981 to protect “the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship,” the amendment retained § 1981's “focus upon contract obligations. In fact, it positively reinforced that element by including in the new § 1981(b) reference to a ‘contractual relationship.”’

      To establish a claim under § 1981, plaintiffs must show (1) membership in a protected class, (2) discriminatory intent on the part of the defendant, (3) engagement in a protected activity, and (4) interference by the defendant with the protected activity.

      Interestingly, it is the third prong of § 1981 that serves as the gatekeeper test for the statute. Courts look first to whether plaintiffs sought to engage in a protected activity before advancing on to whether there was intentional discrimination. In fact, the Supreme Court has held that “nothing in the text of § 1981 suggests that it was meant to provide an omnibus remedy for all racial injustice. If so, it would not have been limited to situations involving contracts. Trying to make it a cureall... goes beyond any expression of congressional intent.” In keeping with Supreme Court precedent to prevent § 1981 from morphing into an omnibus anti-discrimination statute, courts require shoppers alleging § 1981 claims to establish that they sought to create a contract. Section 1981 provides protection for “all phases and incidents of the contractual relationship.” In doing so, § 1981“protects the would-be contractor along with those who already have made contracts.” However, this protection requires the intent to form a specific contract in order to qualify as engagement in a protected activity, and § 1981 does not clarify how such intent in fact manifests.

      The problem with Crystal Gregory and Michael Richmond's claims from Gregory v. Dillard's is that general browsing has never been found to qualify as engagement in a protected activity to satisfy the third prong of § 1981 analysis. As the Seventh Circuit noted in Morris v. Office Max, Inc., “[a] claim for interference with the right to make and enforce a contract must allege the actual loss of a contract interest, not merely the possible loss of future contract opportunities.” The First Circuit has also held that to satisfy the third prong of a § 1981 claim, “a retail customer must allege that he was actually denied the ability either to make, perform, enforce, modify, or terminate a contract, or to enjoy the fruits of a contractual relationship.” The First Circuit did note the difficulties in determining what pre-formation conduct would be protected, recognizing that “each time a customer takes an item off the shelf, a new contract looms, and each time the item is returned, the potential contract is extinguished.” In an effort to resolve difficulties in determining when a black shopper is engaged in a phase of the contractual relationship, courts require that the shopper “show an attempt to purchase, involving a specific intent to purchase an item, and a step toward completing that purchase.”

      Once a specific sales contract has been shown, the inquiry moves on to the second and fourth prongs of § 1981 to determine whether the store had the intent to and did interfere with the sales contract on the basis of race. The second prong can be satisfied through either direct evidence, in the form of a racially-tinged statement or some other action, or through evidence of a pattern or practice of treating minority shoppers differently than white shoppers. While the second prong is expansive in what can be considered in order to show intent, the fourth prong has been substantially narrowed. While § 1981 states that it protects “all benefits, privileges, terms, and conditions of the contractual relationship,” courts--with the exception of the Sixth Circuit--have generally limited § 1981's applicability to instances where a contract was actually prevented, not merely offered on hostile terms.

      There are thus two major approaches to intentional interference with the formation of a contract: the general approach and the Sixth Circuit's approach. The general approach looks to what prevented contract formation. The First Circuit Court of Appeals has held that § 1981 prohibits “imped[ing] a customer's ability to enter into, or enjoy the benefits of the contractual relationship.” In order to state a claim, the store's discrimination must have actually prevented contract formation or denied a black shopper the benefits of a specific contract. Offending the shopper to the point where she leaves the store of her own volition is generally not covered. A store employee must refuse service to a black shopper, or somehow prevent the shopper from obtaining service in order to qualify as having interfered with his ability to make a contract. In certain cases, the Eighth Circuit has recognized that discriminatory conduct can reach a level of offensiveness where it amounts to constructive denial of service. However, for actions to qualify as constructive denial of service, they must be extremely offensive and inappropriate. In Green v. Dillard's, a Dillard's employee personally refused to serve a black couple, interfered with another sales associate's efforts to serve them, and referred to the couple by an ethnic slur. Beyond situations that extreme, however, a black shopper facing overt racial hostility from store employees generally does not have relief under § 1981 if she leaves the store of her own volition.

      The Sixth Circuit uses a broader interpretation of interference with a contract than the general approach in that it does not require actual denial of service. In Christian v. Wal-Mart Stores, Inc., the Sixth Circuit Court of Appeals held that providing services “in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory” on the basis of race violates § 1981. While the shoppers in Christian were actually evicted from the store and thus would also be able to meet the general test, the Sixth Circuit's language about providing services in a hostile manner would allow relief for shoppers like those in Garrett and Youngblood who were only treated poorly and not denied the ability to contract.

      In most circuits, § 1981 would not provide relief for shoppers like Crystal Gregory and Michael Richmond. The Eighth Circuit Court of Appeals, when it heard Gregory v. Dillard's found for Dillard's because Gregory did not show that the store had thwarted an attempt to contract and because Richmond had not pled sufficient facts to satisfy Rule 12(b)(6). In Gregory's case, the Eighth Circuit Court of Appeals found that the presence of security guards outside of her fitting room was merely evidence of watchfulness, which did not interfere with a contract sufficiently to cause a § 1981 violation. The fact that a clerk gave her a “snicker” and Gregory's belief that the store manager was not particularly helpful did not establish that Dillard's had prevented her from making a contract, especially since the sales clerk was waiting to ring up her items. The Eighth Circuit did not discuss whether Gregory had satisfied the third prong of § 1981 by engaging in a protected activity, but it appears from the record that she did. She had selected a pair of pants, tried them on, and approached a sales counter with the intent to make a purchase. It was only after she had made the trip to the counter that she abandoned her merchandise because of treatment that she felt was discriminatory. Gregory was in a situation where the attitude and behavior of Dillard's employees offended her to the point where she left the store without purchasing the goods she had selected and tried on. However, she did not have relief under the general § 1981 test because courts in the Eighth Circuit narrowly limit § 1981 to situations where stores actually refuse to contract with shoppers who are carrying specific goods to purchase.

      The Sixth Circuit's test would offer Crystal Gregory a substantially higher chance of getting her case to trial. Gregory claimed that Dillard's employees summoned security to monitor her and were rude and unhelpful to her because of her race. While none of them directly blocked her efforts to make a contract, a jury could determine that the employees were offering her the ability to contract in a “markedly hostile” or discriminatory manner. While there is no guarantee that Gregory's treatment would in fact be found to be discriminatory, since the Sixth Circuit uses the “markedly hostile” test, at the very least Gregory should be able to survive a motion to dismiss for failure to plead all prongs of § 1981.

      Michael Richmond's claim was dismissed pursuant to a Rule 12(b)(6) motion for failing to plead sufficient facts, but had he sufficiently pled his motion, he would have had difficulty recovering nonetheless. Richmond complained of two instances of discrimination. The first instance involved a store employee walking away from Richmond several times when he approached her for service. By selecting merchandise and carrying it to a store employee to purchase, Richmond satisfied the third prong of § 1981 analysis. He would have had trouble, however, meeting the second and fourth prongs. In Gregory, there was extensive testimony from store employees regarding a store practice of treating black shoppers differently than white shoppers, which could be used to establish intent for the second prong. Richmond's problem is that, had he been presenting his claim on the merits of his experience alone, he would have had no evidence that he was treated differently because of race beyond the fact that he was treated poorly and that he was black. For the fourth prong, Richmond was not fully denied the ability to make his purchases. As was the case in Bagley, while the employee that Richmond interacted with refused to personally serve him (or interact with him at all), a second employee did approach him and offer to provide service. Under the Seventh Circuit's standard, Richmond would not have a case because he voluntarily abandoned his purchase despite the presence of an employee who was willing to ring him out. The facts in his case are not egregious enough to meet the Green exception for constructive denial of a contract either. While an employee's walking away from Richmond is certainly frustrating, it does not rise to the level focused on by the Eighth Circuit Court of Appeals in Green, where the employee used a racial slur and actively discouraged other employees from offering assistance. Since the employee in Richmond's case neither used a racial slur nor discouraged other employees from offering assistance, the Green exception would likely not apply.

      Richmond's second complaint is also unlikely to succeed. His experience at the jewelry counter involve an employee directing his attention to lower cost merchandise after he requested to see a more expensive piece. These facts on their own would not satisfy the second prong of § 1981, because the employee did not make any reference to Richmond's race, and could very well have been trying to turn Richmond's attention to cheaper merchandise because of a perceived lack of funds. Richmond can meet the second prong only through the extensive employee testimony presented elsewhere in the case. The facts in Richmond's case also present problems with the third prong of § 1981, in that Richmond had not actually selected merchandise to purchase or made a step towards making a purchase. Richmond was diverted to other goods as he sought to browse merchandise in the display case. Since merely viewing items does not create a contractual relationship under § 1981, arguably, Richmond had not progressed far enough into the exchange for a specific sales contract to exist. With regards to the fourth prong, the employee did not prevent Richmond from being able to begin a contractual relationship. While her actions were frustrating, she did not necessarily refuse to serve Richmond and was, in fact, actively trying to sell him goods. Since Richmond left of his own accord, while a store employee was trying to sell him merchandise, like Bagley, his § 1981 claim would not succeed.

      However, like Gregory, under the Sixth Circuit's test, Richmond would also have a much better chance of recovery. Regarding both incidents, Richmond benefits from the Sixth Circuit's focus on whether a shopper had to endure hostile or discriminatory treatment en route to contract as opposed to whether the shopper actually tried to contract with the store despite hostile treatment. Having a store employee repeatedly walk away from a black shopper and having a store employee refuse to let a black shopper look at expensive merchandise both present a triable issue of fact for a jury, rather than the dismissal that Richmond would receive under the general § 1981 test. Again, this does not guarantee that Richmond's particular treatment would qualify as creating a “hostile” environment, but at least he should be able to survive a motion to dismiss for failing to meet the prongs of § 1981 analysis.

      As exemplified through Crystal Gregory and Michael Richmond, black shoppers facing discrimination in retail stores might not be adequately protected under current federal law. Courts have focused § 1981 directly on the four corners of the contract, rather than on whether racial discrimination has altered any of the phases and incidents of the contractual relationship. Black shoppers may be offered contracts laden with terms and conditions of humiliation and degradation, but so long as the contracts remain offered, § 1981 is not triggered. As such, in relation to protecting against discrimination in retail stores, federal law provides minimal relief.


      To date, five states--Alabama, Georgia, Mississippi, North Carolina, and Texas--do not have public accommodation statutes that prohibit discrimination on the basis of race. The rest of the states and D.C. have varying forms of public accommodation statutes relating to discrimination in retail stores. These statutes vary in coverage and detail, and can be separated into four categories: (1) those expressly including stores or retail establishments as ““places of public accommodation”; (2) those broad enough where retail stores should properly be covered; (3) those whose coverage is unclear, either by inclusion of contradictory language or omission of defining criteria; and (4) those who provide an exclusive list of places where retail stores are not mentioned.

      Discrimination claims brought by black shoppers like Crystal Gregory and Michael Richmond would meet varying degrees of success, depending on the state in which they were brought. Almost every state has some form of prohibitory language that makes it unlawful to discriminate and deny citizens “the full enjoyment of any of the accommodations, facilities or privileges of any place of public resort, accommodation, assemblage or amusement.” Such language from the various state statutes offers broader protection against discrimination than federal law because unlike § 1981, state public accommodation laws do not require a contractual relationship. Thus, it does not matter whether the employees at Dillard's interfered with a contract, because interference with “the full enjoyment of any of the accommodations, facilities or privileges” is sufficient for a state claim.


      Twenty states and D.C. specifically include retail establishments or stores in their definitions of places of public accommodation. Most of these states have two relevant sections of their statutes dealing with public accommodations: one defining a “place of public accommodation” and one expressly prohibiting discrimination on the basis of race in those places. Colorado, D.C., Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Pennsylvania, Rhode Island, and South Carolina all expressly list retail stores or establishments as places of public accommodation. Arkansas, Idaho, Kentucky, Louisiana, New Hampshire, Ohio, Oklahoma, and Tennessee do not specifically use the word “retail” in their statutes. Rather, they define places of public accommodation to mean “any place, store, or other establishment ... that supplies accommodations, goods, or services to the general public,” or “any public place ... for the sale of goods and merchandise.” Whether they use “retail establishment” or just “store,” these states have expressly included retail establishments as places of public accommodation. This is most likely a response to the federal Title II language and federal precedent establishing that retail stores are not considered places of public accommodation under federal law. In fact, Hawaii, Maine, Maryland, Nevada, and South Carolina all use identical or near-identical language to Title II but specifically add an additional line to include retail establishments.


      Sixteen states have public accommodation statutes that do not specifically include the words “store” or “retail,” but that are nonetheless broad enough in language to cover retail stores. These states vary in the language used. California provides the broadest protection, stating simply that all citizens “are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” This all-inclusive phrase, “all business establishments of every kind whatsoever” --though not specifically listing retail stores--could not reasonably or otherwise be interpreted to exclude retail establishments. Utah has a similarly broad statute. Though defining “place of public accommodation” as “every place, establishment, or facility of whatever kind, nature, or class that caters or offers its services, facilities, or goods to the general public for a fee or charge,” Utah's actual anti-discrimination statute states that all persons are entitled ““to full and equal accommodations, advantages, facilities, privileges, goods and services in all business establishments and in all places of public accommodation” Thus, even if a court could find that a retail store is not a place of public accommodation under the Utah definitions section, the actual anti-discriminations statute provides the broadness necessary to include retail establishments under “all business establishments.”

      The other states do not have as expansive statutes as California or Utah, but they still contain broad language that could not reasonably be interpreted to exclude retail stores. Most of the other remaining states define place of public accommodation as “any establishment that caters or offers its services or facilities or goods to the general public.” Some states add a non-exclusive list of specific places after the general definition. Montana and Alaska also include at the end of their lists the phrase “and all other public amusement and business establishments.”


      Four states have public accommodation statutes that are ambiguous as to whether they cover retail stores. Missouri and Nebraska have statutes that provide first a broad general definition of what constitutes a place of public accommodation, and then second, include the enumerated list from Title II. Virginia and Wyoming are unclear in that their statutes prohibit racial discrimination in places of public accommodation, but do not define what constitutes a place of public accommodation. In all four states, the rights of black shoppers are unclear because the statutes remain ambiguous as to where discrimination is and is not allowed.

      Missouri and Nebraska's public accommodation statutes are almost identical. The Missouri Human Rights Act (MHRA) begins with a broad, general definition of places of public accommodation: “all places or businesses offering or holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public or such public places providing food, shelter, recreation and amusement.” Under this general definition, retail stores would be considered places of public accommodation, given that they offer goods to the general public. However, the statute then provides the same enumerated list found in Title II, although the Missouri and Nebraska lists differ from Title II in that they are not exclusive. There are two reasons why including the list from Title II causes confusion despite a clear introductory statement. First, the ejusdem generis rule of statutory construction establishes that when a statute has a list of specific terms followed by a general definition, the general definition is still limited to terms similar to the enumerated specific terms. By providing a list of places of public accommodation, even if the list is non-exclusive, the MHRA implies that unlisted businesses that are not similar to those listed in the statute are not covered. Second, the enumerated list expressly comprises restaurants, including “any such facility located on the premises of any retail establishment.” Later, the list states that any “establishment which is physically located within the premises of any establishment otherwise covered by this section” is also considered a place of public accommodation. Similarly to Title II, if retail establishments were places of public accommodation under the MHRA, then the phrase “any such facility located on the premises of any retail establishment” would be superfluous. To give that phrase meaning, retail establishments would need to be excluded. The Missouri and Nebraska statutes are unclear in the sense that they imply that retail stores both are and are not covered as places of public accommodation. As long as there is no clear answer in the statute, the rights of black shoppers cannot be adequately protected.

      Virginia and Wyoming have statutes that do not define place of public accommodation. Because “place of public accommodation” is a term of art used in various different statutes to refer to a variety of different locations, merely invoking the phrase with no clarification or definition provides little useful information. Since the states also have little case law on the subject, and none involving racial discrimination, it is an open question as to whether the statutes refer to the Title II definition that excludes retail stores, or some other interpretation. Thus, in Virginia and Wyoming, the rights of black shoppers are also not adequately protected.


      Alabama, Georgia, Mississippi, North Carolina, and Texas do not have public accommodation statutes. As a result, there is no prohibition on racial discrimination in retail stores in those states. Florida's public accommodation statute actually directly copies Title II. Since the Florida statute uses Title II's exclusive list of places of public accommodation, it does not cover retail stores. Thus, black shoppers facing racial discrimination in retail stores in Alabama, Georgia, Mississippi, North Carolina, Texas, and Florida have no state recourse.


      Plaintiffs like Crystal Gregory and Michael Richmond have the best chance of success under state public accommodation statutes in states where it is clear that retail stores are covered. The states that expressly mention retail stores, and those that have laws broad enough to include retail stores without expressly mentioning the phrase, offer Gregory and Richmond the chance to bring their claims to court. Such statutes merely establish that “[a]ll persons are entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, national origin or disability.” Under public accommodation laws, Gregory and Richmond only have to prove that they were treated differently than white shoppers on the basis of their race. Since there is no tie to contract, Gregory's claim that she was monitored because of her race and that store employees were rude because of race is still actionable. Similarly, Richmond's claims that he was denied service and unable to view expensive merchandise because of his race are also actionable. Gregory and Richmond still have state court claims pending in Missouri, so the outcome of their claims under Missouri law is unclear. The outcome in states that do not define “place of public accommodation” is also unclear and hinges on whether those states would choose to use the Title II definition or whether they would seek guidance from other states with broader laws. Ultimately, if they are in a state that considers retail stores places of public accommodation, Gregory and Richmond would be more likely to get their claims to trial. The problem remains that not all states are consistent and clear in whether they consider retail stores places of public accommodation.


      In order to adequately protect the rights of black shoppers, federal law and several state laws must change. Federal law provides no relief for black shoppers who have been discriminated against but are still able to purchase items. Title II does not consider retail stores places of public accommodation because of a misguided belief that racial discrimination does not occur in the retail setting. Section 1981 does not protect shoppers from discrimination that does not prevent contract formation despite expressly stating that it protects all “benefits, privileges, terms, and conditions.” Black shoppers also have no relief under the laws of ten states.


      The primary change that is necessary in federal law is to add retail stores to Title II's coverage. Given that retail stores have become essentially immune to federal liability for discrimination and that, in many states, retailers can also discriminate freely without repercussion; Title II fails to achieve its goal of eliminating racial discrimination in American businesses. Senator Humphrey's belief that money knows no race, and that capitalism would eliminate racism in retail stores, has been proven incorrect and should not prevent Title II from providing the same protections as the vast majority of state public accommodation statutes, as well as the Americans with Disabilities Act, which does include retail stores as places of public accommodation for its purposes.

      In addition to legislative changes adding retail stores to Title II, judicial changes need to be made to § 1981 adjudication. Since § 1981 applies to all “phases and incidents” of the contractual relationship, discrimination that occurs before the contract is actually formed (i.e. before the shopper brings goods to a sales clerk to make the purchase) should at least manage to survive a motion to dismiss. If Congress in fact sought to protect all phases of the contractual relationship, black shoppers should be covered by § 1981's prohibition of racial discrimination the moment they enter a retail store. Shoppers enter stores for the purpose of browsing and purchasing items. Retail stores hold themselves out to the public for the purpose of making contracts. When a black shopper goes to a retail store, the standard should not be whether the retailer managed to offend the shopper enough that she left before she could attempt a contract. It should be whether the shopper could go about contemplating and making a contract without discrimination or harassment. Congress acknowledged that this should be the true gatekeeper for the statute in 1991 when it amended § 1981 to protect all “benefits, privileges, terms, and conditions of the contractual relationship.” However, under the current standard for § 1981, stores may still discriminate against black shoppers who may seek to make a contract but who had merely failed to arrive at the contract initiation point. To correct this problem, courts need to adopt a test similar to the Sixth Circuit's that acknowledges that discrimination can occur during the formation of a contract and yet not prevent the contract from occurring. A test that focuses on whether the retailer's behavior was objectively hostile and discriminatory, regardless of whether the shopper completed the contract is the only way to prevent a black shopper who experiences discrimination from being placed in a Catch-22. After all, under current law, if he abandons his purchase in disgust, he does not have a § 1981 claim because he left of his own accord, and if he endures the discrimination and goes through with the purchase, he still does not have a § 1981 claim because he was not prevented from making a contract. For § 1981 to have teeth in the retail setting, it must apply to all discrimination during the formation of a contract, not just that which makes contracting impossible.


      The primary change that is necessary in state law is for the ten states that do not provide clear coverage for retail stores as places of public accommodation to clarify their statutes or to draft new statutes. Alabama, Georgia, Mississippi, North Carolina, and Texas need to adopt statutes that prohibit racial discrimination in public accommodations, and to include retail stores within that statute. Florida should expand its public accommodation statute in line with the necessary expansion of Title II. While those states may be hesitant to regulate the behavior of private entities, the only real burden that public accommodation statutes impose upon stores is that they treat all of their customers in the same way. There are no additional requirements apart from not being discriminatory towards minority shoppers. Just as stores must provide accessible entrances and facilities for handicapped individuals, they should be required under state law to treat minority shoppers the same as white shoppers.

      The states that have unclear statutes, either as a result of internally contradictory statutory construction or the lack of a statutory definition of ““places of public accommodation,” should amend their statutes to clarify that retail stores are covered. Until these states clarify their statutes, black shoppers who experience racial discrimination in retail stores must sit in limbo, without legal remedy. Particularly in the case of Missouri and Nebraska, where the statutory confusion is a direct result of poorly drafted legislation that copied the Title II list without analyzing how it would interact with their broad definition, these states have a duty to their citizens to at least make it clear where they are or are not protected.


      Expanding federal and state law to prohibit racial discrimination in retail settings raises three important policy problems. First, there is a high risk that creating a cause of action for shoppers who feel offended in retail stores would open the floodgates of litigation and lead to a plethora of meritless lawsuits. Second, any law controlling the behavior of private actors is suspect as a violation of their right to personal autonomy, regardless of whether they are individuals or corporations. Third, laws prohibiting racial discrimination may ultimately cause perverse results and lead to a greater focus on race since store employees must go out of their way to acknowledge race in order to avoid the appearance of differential treatment.

      The Supreme Court, in Domino's v. McDonald, listed excessive litigation as a primary reason not to expand § 1981 beyond specific contracts under which the complaining party had rights. Justice Scalia stated that such an expansion “would produce satellite litigation of immense scope.” Extensive satellite litigation is a fear because applying § 1981 to cases where discrimination does not block the formation of a contract would make it far more difficult to eliminate meritless cases before trial. If shopping in a retail store is sufficient to satisfy the third prong of § 1981 analysis, then the only option for dismissing cases without merit is either the shopper not showing intent or the shopper not showing discrimination. Since evidence of other actions by store employees can stand in for direct evidence of intent, the intent prong is unlikely to be an effective tool for weeding out meritless cases. The only remaining option is finding that the shopper has not proven discrimination. Under the current standard, a shopper who presents evidence that she was treated poorly while shopping, and claims that it was because of her race, has stated sufficient evidence to get to trial, as credibility determinations are the province of the jury.

      The solution to this problem is not to continue arbitrarily limiting “phases and incidents” of the contractual relationship to just the actual formation of the contract. If the concern is truly that shoppers who have not experienced discrimination will bring frivolous claims, then the solution is to more aggressively dismiss cases where there is a lack of evidentiary support to show that black shoppers were treated differently from white shoppers on account of their race. Thus, courts should simultaneously also create a stricter evidentiary standard by requiring shoppers bringing a § 1981 claim to actually show that (1) they were treated poorly, (2) they were treated in a way different from white shoppers, and (3) a reasonable person could find such differential treatment to be because of the shopper's race. Such a requirement would balance the new protections offered in retail stores and would make it more difficult for frivolous claims to get to trial, while still allowing shoppers who have experienced legitimate discrimination to get relief.

      As an example, to look further into the case of Crystal Gregory, her claim was ultimately correctly dismissed, but not because she was not denied the ability to enter into a contract, but because there was no evidence that anything the store employees did was unreasonable or race-based. Gregory based her claims on the rude “snicker” of the employee and the fact that there were security guards nearby. It is unreasonable to assume that such a rude ““snicker,” in the absence of any other evidence, was based on racial animosity. After all, neither federal nor state anti-discrimination law is designed to ensure that shoppers are treated politely, merely that they are treated equally. Furthermore, stores are well within their rights to have security guards to monitor activities, and Gregory did not present any evidence that the guards were called because of her and because of her race Dismissing Gregory's claim because she was not prohibited from making a contract disregards the impact that racial discrimination can have on an individual during the contract formation process. Dismissing her claim because there is no interpretation of her facts that could amount to discrimination acknowledges the impact of discrimination while still protecting retailers from frivolous litigation.

      The second concern is that regulating the behavior of private actors is something that lawmakers should avoid whenever possible. Retail stores, after all, are private actors who exist in a free market. If shoppers feel unwelcome in a particular store, they are free to either shop elsewhere or even purchase items online. Adding further regulation to private stores decreases their ability to function profitably and creates federal and state controls over private action that are not necessary.

      This concern, however, is not applicable to public accommodation laws and retail stores for two reasons. First, there is already a national policy in place to eliminate racial discrimination, and § 1981 was crafted to further that policy. Second, the limitations that § 1981 and state public accommodation laws place on retail stores are minimal. These statutes do not require stores to provide special treatment for minority shoppers, or to enact costly renovations or programs. They merely require that stores treat everyone who enters them in an equal way. Retail stores like Dillard's are already aware of how they treat white shoppers. Applying § 1981 and state public accommodation laws to retail stores will only require that the stores treat black shoppers the same. The only difficulty with this approach would arise when a store is located in an area where, statistically, a minority group commits substantially more shoplifting or vandalism than white citizens. However, anti-discrimination statutes do not affect a store's ability to respond to minority shoppers who are actually shoplifters, they only prohibit the stores from treating all minority shoppers like they are shoplifters.

      The third policy concern is that applying anti-discrimination laws to retail stores would lead to perverse results and cause a greater focus on shoppers' race. This concern arises where everyone in a retail store is covered under § 1981 and a state public accommodation statute; in that case, the store is in quite the bind. If a store security officer legitimately suspects a black shopper of shoplifting and is incorrect, he is faced with a potential § 1981 suit. The shopper would claim that the only reason he was followed was his race, while the officer and the store would claim other reasons for surveillance. If properly pleaded, this could lead to trial, which is both costly and could negatively impact the store's public image. Thus stores will need to implement new training practices for their employees regarding proper customer treatment, which may also be costly. It is even possible that such a series of events would force store employees to approach all minority shoppers with trepidation, and shoppers will only be further distinguished by their race.

      The solution to this problem is similar to that of the frivolous litigation problem. If courts are more willing to dismiss cases where the facts merely indicate unsatisfactory treatment of a black shopper, as opposed to actual discrimination, then stores need not treat black shoppers delicately. As Judge Colloton pointed out in his dissent in Gregory v. Dillard's, providing anti-discrimination protection in retail stores does not give aggrieved customers carte blanche to prevail in every suit. Rather, if courts require that plaintiffs show that they are actually treated in a manner that “rises to the level of severe or pervasive harassment,” or in a “markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory,” then there would be a firm barrier to suits lacking merit. Minority shoppers who are merely offended by non-racially based, rude conduct would simply have to endure what everyone, regardless of race, has to suffer through at some point: bad service. Retail stores would be able to treat black and white shoppers the same without fear of frivolous suits, as such claims would fail to meet the stricter reasonableness test and evidentiary bars in court.


      Even in the twenty-first century, minority citizens of the United States still find themselves walking into a store and being met with hostility and humiliation based on the color of their skin. Federal and state anti-discrimination laws are designed to address the ongoing discrimination against members of protected classes in places of public accommodation, but they are far from perfect. Black shoppers like Crystal Gregory or Michael Richmond, after being treated with derision and suspicion because of their race while shopping, had limited options of recourse.

      Federal law does not adequately protect against discrimination in retail stores. Title II does not include retail stores as places of public accommodation. Section 1981 protects against discrimination only if a contractual relationship exists. Thus, despite hostile treatment by the store, unless the customer is actually prevented from making a purchase, she has no claim. The overt use of a racial slur may sometimes be enough to qualify as constructive denial of service, as was the case in Green, but in Gregory or Richmond's case (and in most cases) discriminatory action is not as overt. As such, federal law provides minimal protection for those victims of modern, “smart” racism, which a reasonable person may find to be objectively discriminatory, but the laws simply do not address

      State law, though broader than federal law, is also still less than ideal. Though many state laws do include retail stores as places of public accommodation, and though none of the state laws require a contractual relationship (unlike § 1981), the differences between states and the lack of clarity in many of the statutes leave room for improvement in the state law arena as well.

      Ultimately, both federal law and many state laws should be amended. Title II should include retail stores, as the reasoning behind excluding them, as noted in the Congressional Record, is unsound. Courts interpreting the scope of § 1981 should use a test focusing on whether discrimination occurred, similar to the Sixth Circuit. At the same time, courts should also create a higher evidentiary standard for such claims and be more willing to dismiss frivolous cases with facts that no reasonable person could interpret as discrimination. State laws should be amended to either become all-inclusive like California, or, at the very least, make clear as to whether retail stores are included as places of public accommodation.

      Black shoppers and white shoppers should be allowed to enter the same store, subject to the same terms and conditions, and be treated with the same level of respect and dignity. This does not mean that minority shoppers may flood the courts with discrimination claims. Thus, while retail stores should be included in both federal and state public accommodation statutes, the ultimate goal is not to grant minority shoppers with meritless claims an open door to the courtroom. Rather, the law should be, as it was intended, to simply ensure that “the rights ... for all people, without regard to race, age, marital status, creed, color, sex, handicap, sexual orientation or national origin, may be effectively safeguarded.”