Racial Profiling

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 its various derivatives were raised in the public consciousness. Like it or not, Hollywood and pop culture are often bellwethers of social justice issues, and 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 BelAire' produced an episode about racial profiling. Indeed, the fact that Rodney King was beaten following a traffic stop was not lost on large segments of America. Moreover, mainstream newspapers and television news programs were presenting stories of racial profiling. Nevertheless, during this time very few, if any, law enforcement agencies possessed 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, which is the premier law enforcement accrediting body, did not require departments to possess such policies until only a few years ago.

It does not take a stretch of the imagination to see the same scenario occurring in retail establishments. Just as with law enforcement, newspapers and television news programs are discussing the issue of racial profiling by shopping malls and retailers. Similarly, television situation comedies, such as 'That's So Raven,' have addressed the issue of retailers engaging in racial profiling. Indeed, the shaman of millions of American women ' 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, actual litigation against some of the country's most prominent retailers regarding racial profiling can be widely publicized. In two separate lawsuits, Walgreens is defending against claims of racial profiling. According to the Chicago Tribune, three former Walgreens employees 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, NV, black customers alleged that a Walgreens clerk became hostile toward them, used racial slurs, and refused to serve them. According to the plaintiffs, Walgreens claimed corrective measures would be taken, but none were. Further, as The New York Times reported, in New York, Macy's reached a $600,000 settlement with the New York Attorney General to resolve claims by black customers allegedly subjected to racial profiling. After a lengthy inquiry, it was determined that 75% of the shoppers detained on suspicion of shoplifting were black or Latino, which was a much higher percentage than of blacks and Latinos shopping in the stores. Eddie Bauer, Inc. was also 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 lawsuits will soon be filed. Retailers should not be caught unprepared. The industry should learn from the law enforcement experience that identifying the issue of racial profiling and its consequences is the initial step in preventing the activity and, it is hoped, 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 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 facts from occurring in the first place.

Law enforcement was at a disadvantage because, until recently, there were no well-recognized causes of action 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. In the context of racial profiling, however, the precise contours of the specific causes of action and the elements needed to be proved were less than clear. After nearly a decade of litigation, the elements of causes of action to remedy racial profiling are better recognized.

Retailers and shopping malls are in a slightly better position to know 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: 42 U.S.C. '1981 false imprisonment and intentional infliction of severe emotional distress. These causes of action have well-defined elements. For example, in General Building Contractors v. Pennsylvania, 458 U.S. 375, 390 (1982), the Supreme Court held that to state a cause of action under '1981, a plaintiff must show purposeful discrimination based upon race. Unfortunately, the issue of whether certain retailers and shopping malls would fall within the scope of Title II of the Civil Rights Act of 1964 (42 U.S.C. '2000a) 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. According to the late Sen. Hubert H. Humphrey (D-MN), '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.' 110 Cong. Rec. 6533. Nevertheless, some case law has given an expansive reading to 'public accommodations' under the Civil Rights Act, such that some retail establishments fall within the definition. For example, in U.S. v. Baird, 85 F.3d 450 (9th Cir. 1995), the Ninth Circuit Court of Appeals found that a 7-Eleven store with two video games was a 'public accommodation' because it was a place of amusement. And in U.S. v. DeRosier, 473 F.2d 749 (5th Cir. 1973), 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% 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.' 775 ILCS 5/5-101(a)(2).

Next month's installment will discuss preventing racial profiling and preparing for allegations.

Iain D. Johnston is a senior counsel at the Chicago office of Holland & Knight LLP. He litigates a wide range of matters, including civil rights, employment, government, land use, and complex commercial cases. He has successfully represented law enforcement agencies and private security companies in cases alleging racial profiling. Johnston has trained hundreds of law enforcement personnel from across the country, and written and reviewed employment and enforcement policies and procedures. He can be reached at [email protected].

For more than a decade, law enforcement agencies across the country have struggled with allegations of racial profiling. Many of the country's large law enforcement agencies have been sued for alleged racial profiling. These agencies include the California Highway Patrol, the Ohio Highway patrol and the Illinois State Police. The results of these lawsuits have been mixed. Some agencies, such as the Illinois State Police, prevailed, and many other agencies reached settlements. These suits were extremely expensive to litigate, and the settlements were, at times, just as expensive. Regardless of the outcome of the litigation, however, the damage caused by these allegations was massive. The citizens' trust and confidence instilled in these departments, if it existed at all in recent times, was breached. The damage occurred, in large part, because perception is often as important as ' or more important than ' reality. Although the phenomenon of racial profiling undoubtedly exists, all agencies and their personnel become tainted, whether 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' struggles with the issue of racial profiling. Each year, new suits have been filed against merchants alleging some form of racial profiling. Although the existence of 'shopping while black' may unfortunately not be new to some, the legal consequences of such activities are beginning to make not only headlines but also court opinions. Indeed, in this post-9/11 world, the issue of racial profiling may become inflamed due to the need to increase mall security from terrorist attacks. For example, in 2004, Albuquerque police and mall security at the Coronado Mall allegedly detained eight Muslims because security believed it had 'a bunch of terrorists.' This article sets forth three lessons that retailers and shopping malls should learn from the law enforcement experience.

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 its various derivatives were raised in the public consciousness. Like it or not, Hollywood and pop culture are often bellwethers of social justice issues, and 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 BelAire' produced an episode about racial profiling. Indeed, the fact that Rodney King was beaten following a traffic stop was not lost on large segments of America. Moreover, mainstream newspapers and television news programs were presenting stories of racial profiling. Nevertheless, during this time very few, if any, law enforcement agencies possessed 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, which is the premier law enforcement accrediting body, did not require departments to possess such policies until only a few years ago.

It does not take a stretch of the imagination to see the same scenario occurring in retail establishments. Just as with law enforcement, newspapers and television news programs are discussing the issue of racial profiling by shopping malls and retailers. Similarly, television situation comedies, such as 'That's So Raven,' have addressed the issue of retailers engaging in racial profiling. Indeed, the shaman of millions of American women ' 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, actual litigation against some of the country's most prominent retailers regarding racial profiling can be widely publicized. In two separate lawsuits, Walgreens is defending against claims of racial profiling. According to the Chicago Tribune, three former Walgreens employees 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, NV, black customers alleged that a Walgreens clerk became hostile toward them, used racial slurs, and refused to serve them. According to the plaintiffs, Walgreens claimed corrective measures would be taken, but none were. Further, as The New York Times reported, in New York, Macy's reached a $600,000 settlement with the New York Attorney General to resolve claims by black customers allegedly subjected to racial profiling. After a lengthy inquiry, it was determined that 75% of the shoppers detained on suspicion of shoplifting were black or Latino, which was a much higher percentage than of blacks and Latinos shopping in the stores. Eddie Bauer, Inc. was also 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 lawsuits will soon be filed. Retailers should not be caught unprepared. The industry should learn from the law enforcement experience that identifying the issue of racial profiling and its consequences is the initial step in preventing the activity and, it is hoped, 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 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 facts from occurring in the first place.

Law enforcement was at a disadvantage because, until recently, there were no well-recognized causes of action 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. In the context of racial profiling, however, the precise contours of the specific causes of action and the elements needed to be proved were less than clear. After nearly a decade of litigation, the elements of causes of action to remedy racial profiling are better recognized.

Retailers and shopping malls are in a slightly better position to know 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: 42 U.S.C. '1981 false imprisonment and intentional infliction of severe emotional distress. These causes of action have well-defined elements. For example, in General Building Contractors v. Pennsylvania , 458 U.S. 375, 390 (1982), the Supreme Court held that to state a cause of action under '1981, a plaintiff must show purposeful discrimination based upon race. Unfortunately, the issue of whether certain retailers and shopping malls would fall within the scope of Title II of the Civil Rights Act of 1964 (42 U.S.C. '2000a) 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. According to the late Sen. Hubert H. Humphrey (D-MN), '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.' 110 Cong. Rec. 6533. Nevertheless, some case law has given an expansive reading to 'public accommodations' under the Civil Rights Act, such that some retail establishments fall within the definition. For example, in U.S. v. Baird , 85 F.3d 450 (9th Cir. 1995), the Ninth Circuit Court of Appeals found that a 7-Eleven store with two video games was a 'public accommodation' because it was a place of amusement. And in U.S. v. DeRosier , 473 F.2d 749 (5th Cir. 1973), 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% 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.' 775 ILCS 5/5-101(a)(2).

Next month's installment will discuss preventing racial profiling and preparing for allegations.

Iain D. Johnston is a senior counsel at the Chicago office of Holland & Knight LLP. He litigates a wide range of matters, including civil rights, employment, government, land use, and complex commercial cases. He has successfully represented law enforcement agencies and private security companies in cases alleging racial profiling. Johnston has trained hundreds of law enforcement personnel from across the country, and written and reviewed employment and enforcement policies and procedures. He can be reached at [email protected].