Racial Profiling: Lessons Retailers and Shopping Malls Should Learn from the Law Enforcement Experience

The law enforcement community was unprepared for the onslaught of allegations of racial profiling because it never anticipated it would become 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 may have been avoided if the law enforcement community had initially recognized the issue and then prepared to address it.

Two goals of the retail industry should be avoiding litigation or being tainted by the issue. Without doubt, the best path to those twin goals is to ensure that racial profiling does not occur, which is the ultimate goal. Still, even if retailers and shopping malls recognize the issue and take action to prevent it, there is no guarantee they will not be sued. Nevertheless, in such circumstances, retailers and shopping malls will be better able to defend against such lawsuits because they were 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) providing supervision, 2) establishing policies, which are known by employees and enforced by employers, and 3) collecting data.

Proper supervision is essential. Employers must supervise employees so that 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 the policy. The more careful employers require their employees to sign a statement that they understand the anti-sexual harassment policy and will abide by it. The even more careful ' and some may 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 the policy. But how many retailers or shopping malls have a policy prohibiting racial profiling? The best guess is not many. 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, which is signed by employees and enforced by employers. This practice alone would go a long way not only in defending against allegations of racial profiling, but also in preventing racial profiling from occurring in the first place.

Collecting data may be a useful exercise. In the law enforcement context, data collection refers to the recordation of driver information for each stop of a motorist and comparison of that data 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 universally practiced now. 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 (ie, the number and races of motorists stopped), but not know the numerator (ie, 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 Macy's 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 become as universally used 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 the likely avalanche of public scrutiny and pressure, and resulting lawsuits ensue.

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 mailto:[email protected].

Part Two of a Two-Part Series

Last month's installment discussed recognizing and identifying the issue of racial profiling, and knowing the possible claims.

Lesson #3: Prevent the Activity and Prepare for Allegations

The law enforcement community was unprepared for the onslaught of allegations of racial profiling because it never anticipated it would become 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 may have been avoided if the law enforcement community had initially recognized the issue and then prepared to address it.

Two goals of the retail industry should be avoiding litigation or being tainted by the issue. Without doubt, the best path to those twin goals is to ensure that racial profiling does not occur, which is the ultimate goal. Still, even if retailers and shopping malls recognize the issue and take action to prevent it, there is no guarantee they will not be sued. Nevertheless, in such circumstances, retailers and shopping malls will be better able to defend against such lawsuits because they were 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) providing supervision, 2) establishing policies, which are known by employees and enforced by employers, and 3) collecting data.

Proper supervision is essential. Employers must supervise employees so that 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 the policy. The more careful employers require their employees to sign a statement that they understand the anti-sexual harassment policy and will abide by it. The even more careful ' and some may 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 the policy. But how many retailers or shopping malls have a policy prohibiting racial profiling? The best guess is not many. 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, which is signed by employees and enforced by employers. This practice alone would go a long way not only in defending against allegations of racial profiling, but also in preventing racial profiling from occurring in the first place.

Collecting data may be a useful exercise. In the law enforcement context, data collection refers to the recordation of driver information for each stop of a motorist and comparison of that data 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 universally practiced now. 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 (ie, the number and races of motorists stopped), but not know the numerator (ie, 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 Macy's 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 become as universally used 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 the likely avalanche of public scrutiny and pressure, and resulting lawsuits ensue.

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 mailto:[email protected].