* Assistant Professor, Management Department, School of Business, Salem State College, Salem, Massachusetts. B.A., George Washington University, 1987; J.D., George Washington University Law School, 1990. My deep gratitude and love to Esther Jain for her invaluable research assistance. Many thanks to Anne-Marie Moyes and Kristen Fredricks for their support and expert guidance. The author gratefully acknowledges Ross Petty, Lucille Ponte, and David Sanford for their time and assistance.
1 This scenario reflects a situation encountered by Brenda and Clifton Pilson, two of the named plaintiffs in a recently filed lawsuit against Cracker Barrel Old Country Stores, Inc. See Amended Complaint ¶¶ 121–128, NAACP v. Cracker Barrel Old Country Store, Inc., No. 4:01-CV-325-HLM (N.D. Ga. filed Apr. 11, 2002). The Federal District Court has denied certification to the class of plaintiffs. The plaintiffs are deciding whether to appeal the decision.
2 Although most of the cases discussed herein involve African-American plaintiffs, other people of color experience similar treatment in retail establishments. Deseriee A. Kennedy, Consumer Discrimination: The Limitations of Federal Civil Rights Protection, 66 Mo. L. Rev. 275, 299 (2001). For example, a complaint was filed against Footaction, a shoe store chain, after an employee was accused of discriminating against a Dominican family. The employee allegedly refused to help the individuals because they spoke Spanish. Pursuant to a settlement agreement, Footaction must provide anti-discrimination training for its Massachusetts employees. Retailer Creates Anti-bias Plan, Boston Herald, Aug. 9, 2002, at 28. Given that the majority of plaintiffs involved in Consumer Racial Profiling (CRP) lawsuits are African Americans, this Article employs the term “African-American” for the sake of simplicity and clarity. It is not intended to exclude the experience of other people of color. The laws discussed apply to members of all races. See infra Part II.
3 The designations “African-American” and “black” are used interchangeably throughout this Article, as are the terms “caucasian” and “white.” “Driving while black (or brown)” (DWB) refers to the heightened possibility that law enforcement officers will target people of color for traffic stops. DWB traffic stops are the result of racial profiling that occurs when law enforcement agencies employ race-based suspect profiles. Amanda G. Main, Note, Racial Profiling in Places of Public Accommodation: Theories of Recovery and Relief, 39 Brandeis L.J. 289, 289 (2000–01). “Profiles” are sets of personal and behavioral characteristics associated with individuals who tend to commit particular offenses. These profiles are intended to assist police officers in identifying criminal suspects. David A. Harris, Profiles in Justice: Why Racial Profiling Cannot Work 10 (2002). Such profiles may lead law enforcement officers to use race or color as a proxy for criminal propensity and consequently, to suspect anyone who is African-American, even absent any reasonable suspicion or probable cause. Kennedy, supra note 2, at 298; see Darin D. Fredrickson & Raymond P. Siljander, Racial Profiling: Eliminating the Confusion Between Racial and Criminal Profiling and Clarifying What Constitutes Unfair Discrimination and Persecution 15 (2002). Much political and legal discussion has focused on the unreasonable stops and searches performed as a result of racial profiling. Nevin v. Citibank, N.A., 107 F. Supp. 2d 333, 339 n.4 (S.D.N.Y. 2000); see Illinois v. Wardlow, 528 U.S. 119, 133–34 n.10 (2000) (discussing allegations of unlawful racial profiling by the New Jersey State Police and the Boston Police Department).
4 Matt Graves, Note, Purchasing While Black: How Courts Condone Discrimination in the Marketplace, 7 Mich. J. Race & L. 159, 185 (2001); see Kelvin R. Davis, Driving While Black: Cover-Up 23 (2001); Regina Austin, “A Nation of Thieves”: Securing Black People’s Right to Shop and to Sell in White America, 1994 Utah L. Rev. 147, 149–50 nn.7–12; Kennedy, supra note 2, at 276, 288, 291 (comparing “consumer discrimination” to racial profiling used by law enforcement officers and indicating that both are based on unsubstantiated stereotypes); see also Nevin, 107 F. Supp. 2d at 339 n.4 (noting that evidence of racial profiling in retail establishments has been reported by the media and is the subject of at least two other lawsuits in the Second Circuit Court of Appeals).
5 PrimeTime Live: True Colors (ABC television broadcast, Sept. 26, 1991). One black tester and one white tester were filmed covertly while performing commonplace retail activities. The documentary uncovered numerous incidents of racial discrimination. Peter Siegelman, Racial Discrimination in “Everyday” Commercial Transactions: What Do We Know, What Do We Need to Know, and How Can We Find Out? in A National Report Card on Discrimination in America: The Role of Testing 69 (Michael Fix & Margery A. Turner eds., 1998). Peter Siegelman has taught at Yale Law School, the University of Connecticut Law School, and Amherst College. He has conducted empirical research on employment discrimination litigation, discrimination in the sale of new cars, the economics of crime, and externalities in the provision of radio broadcasting.
6 20/20: Under Suspicion—Security Guards Unfairly Target Black Shoppers, (ABC television broadcast, June 8, 1998), available at 1998 WL 5433617 (undercover investigation conducted in suburban shopping mall revealed that, in contrast with the minimal attention given to the white tester, the black tester was followed and watched while she shopped, closely scrutinized before entering the dressing room, and spied on while she was inside the dressing room).
7 See generally Jackson v. Eddie Bauer, Inc., No. AW96–54, 1997 WL 802774 (D.C. Md. Oct. 1997) (where jury found that plaintiff had suffered emotional distress when he and his companions were falsely imprisoned for shoplifting).
8 Main, supra note 3, at 290. See generally Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091 (10th Cir. 2001), cert. denied, 534 U.S. 1131 (2002) (concluding that plaintiff presented sufficient evidence that defendant intentionally discriminated against her on account of race and that this discrimination interfered with her redemption of a coupon for a free fragrance, which constituted a contract).
9 African-American customers filed two class action lawsuits against Flagstar, the parent corporation of Denny’s Restaurants, for denying them full and equal service by refusing to seat and/or serve them in some of the defendant’s restaurants. The suits alleged that these policies and procedures, not applied to white persons, included requiring black customers to pre-pay for their meals, pay a cover charge, and present identification to be served. The restaurants also allegedly denied free “birthday meals” to black customers and forcibly removed black customers from the establishments. Under the terms of two consent decrees, Denny’s agreed to pay over $54 million in damages to black customers. See Dyson v. Flagstar Corp., No. DKC–93–1503, 1996 U.S. Dist. LEXIS 22685, at *2, 3 (D. Md. July 17, 1996); Order Denying Motion to Alter or Amend Judgment, Ridgeway v. Flagstar Corp., Nos. 93–20202 JW and 93–20208 JW, 1994 WL 669935, at *1 (N.D. Cal. Nov. 18, 1994); Amended Consent Decree, Ridgeway v. Flagstar Corp., (Nos. 93–20202 JW and 93–20208 JW), available at http://www.usdoj.gov/crt/housing/documents /dennysettle2.htm; Notice of Pendency and Settlement of Derivative Action and Settlement Hearing, Dyson v. Flagstar Corp., No. DKC–93–1503 & Ridgeway v. Flagstar Corp., Nos. 93–20202 JW and 93–20208 JW, available at http://www.entwistle-law.com/news/cases/settled/pdf/flgnot.pdf.
10 The terms “consumer racism” and “consumer discrimination” are also used to identify the practice of differential surveillance and treatment of African-American shoppers. Kennedy, supra note 2, at 276; see Austin, supra note 4, at 149. These terms will be used interchangeably with CRP throughout the Article.
11 Among the cases discussed in this Article, twice as many involved a degradation of a service/product rather than a complete denial. See infra Part III.
12 See infra Part III.
13 See, e.g., Alexis v. McDonald’s Rest. of Mass., Inc., 67 F.3d 341, 345 (1st Cir. 1995) (verbal attack); Rogers v. Elliott, 135 F. Supp. 2d 1312, 1313 (N.D. Ga. 2001) (verbal and physical attack); Williams v. Cloverland Farms Dairy, Inc., 78 F.Supp. 2d 479, 482–83 (D. Md. 1999) (verbal and physical attack).
14 See, e.g., Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 255 (4th Cir. 2001) (removal from motel); Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 864 (6th Cir. 2001) (removal from store); Bray v. RHT, Inc., 748 F.Supp. 3, 4 (D.D.C. 1990), aff’d sub nom. Bray v. Hebble, 976 F.2d 45 (D.C. Cir. 1992) (removal from restaurant).
15 See, e.g., Shawl v. Dillard’s, Inc., 17 Fed. Appx. 908, 909–10 (10th Cir. 2001) (rude service, surveillance, and harassment); Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1100 (10th Cir. 2001), cert. denied, 534 U.S. 1131 (2002) (search of customer’s belongings); Hill v. Shell Oil, Co. 78 F. Supp. 2d 764, 767–68 (N.D. Ill. 1999) (pre-payment requirement); Bobbitt by Bobbitt v. Rage, Inc., 19 F.Supp. 2d 512, 519 (W.D.N.C. 1998) (pre-payment requirement); Bermudez Zenon v. Restaurant Compostela, Inc., 790 F. Supp. 41, 43 (D.P.R. 1992) (three hour delay in service).
16 See, e.g., Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1244 (11th Cir. 2001) (refusal to serve African-American customers); Watson v. Fraternal Order of Eagles, 915 F.2d 235, 239–40 (6th Cir. 1990) (refusal to serve soft drinks to plaintiffs); Wilson v. Waffle House, No. CIV.A.97–W–647–N, 1998 WL 1665880, at *3 (M.D. Ala. Apr. 28, 1998) (refusal to serve African-American customers).
17 See generally Jerome D. Williams, Geraldine R. Henderson, & Anne-Marie Harris, Consumer Racial Profiling: Bigotry Goes to Market, 108 The New Crisis 22 (Nov/Dec. 2001).
18 Austin, supra note 4, at 148 n.4 (listing articles published in law journals and in the popular press); see Stephen E. Haydon, Comment, A Measure of Our Progress: Testing for Race Discrimination in Public Accommodations, 44 UCLA L. Rev. 1207, 1210 (1997) (employing former New York City Mayor David Dinkin’s difficulty in hailing a taxicab as an example of racial discrimination in everyday interactions).
19 Siegelman, supra note 5, at 70. “Although there is now a large body of research on the frequency and amount of discrimination in what are arguably the two most important markets in which most of us participate—employment and housing—we know very little about discrimination in other kinds of transactions.” Id. Siegelman also notes the dearth of social science literature that directly addresses the frequency with which blacks encounter discrimination in the marketplace. Id. at 92 n.30.
20 Id. at 79.
21 Id. at 80. The study defined discrimination as “unfair treatment because of your race.” Siegelman, supra note 5, at 80.
22 Id.
23 Id. at 72.
24 Id.
25 Thomas L. Ainscough & Carol M. Motley, Will You Help Me, Please? The Effects of Race, Gender and Manner of Dress on Retail Service, 11 Marketing Letters 129, 135 (2000).
26 Id. at 130.
27 See Jerome D. Williams & Thelma Snuggs, Presentation at Multicultural Marketing Conference, American Marketing Association, Survey of Attitudes Toward Customer Service in Retail Stores: The Role of Race (Oct. 16–19, 1996)(notes on file with author); see also Jerome D. Williams & Marye C. Tharp, African Americans: Ethnic Roots, Cultural Diversity, in Marye C. Tharp, Marketing and Consumer Identity in Multicultural America 165, 170, 194–95 (2001) (concluding that engaging in, or appearing to engage in, CRP may be detrimental to retailers associated with such practices in the minds of consumers); Haydon, supra note 18, at 1214 (discussing other similar statistics).
28 See infra Part III. See generally Geraldine R. Henderson, Anne-Marie Harris, & Jerome D. Williams, Legal Developments: Consumer Racial Profiling (unpublished manuscript on file with authors) (reviewing more than eighty cases filed in federal court since 1990 involving allegations of race discrimination in retail settings).
29 Siegelman, supra note 5, at 82.
30 Id.
31 See Joe R. Feagin, The Continuing Significance of Race: Anti-black Discrimination in Public Places, 56 Am. Soc. Rev. 101, 111–12 (1991); Kennedy, supra note 2, at 276; Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283, 1286–88 (1996). There is, however, disagreement about the seriousness and magnitude of consumer racial profiling. Kennedy, supra note 2, at 294. Siegelman recommends that social scientists undertake the methodical study of quantifying occurrences of CRP. See Siegelman, supra note 5, at 88.
32 See Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 Harv. L. Rev. 817, 841 (1991); Kennedy, supra note 2, at 288; Loren Page Ambinder, Note, Dispelling the Myth of Rationality: Racial Discrimination in Taxicab Service and the Efficacy of Litigation Under 42 U.S.C. § 1981, 64 Geo. Wash. L. Rev. 342, 364 (1996).
33 Ayres, supra note 32, at 841. Under this theory, an actor might, for example, consciously desire to avoid interaction with African Americans. Ambinder, supra note 32, at 364. Accordingly, retailers who want to discriminate may charge higher rates to blacks as an “animus-compensating tax,” or they may provide poor service to blacks. Id.; see Graves, supra note 4, at 185 (commenting that the most interesting conclusion of Ayres’ study was the discovery that certain retailers simply enjoyed “sticking Black customers with a bad deal”). Siegelman refers to the Shoney’s case as a “textbook example of racist management that discriminated against blacks, both as employees and as customers, as a matter of corporate policy.” Siegelman, supra note 5, at 95 n.47. See generally Haynes v. Shoney’s, Inc., No. 89–30093–RV, 1993 WL 19915 (N.D. Fla. Jan. 25, 1993) (Shoney’s was sued for allegedly maintaining a widespread corporate policy of discrimination against its customers and employees and ultimately agreed to pay more than $132 million to approximately 10,000 plaintiffs). Shoney’s policy is unusual. Large chains are less likely to discriminate overtly because they risk losing customers nationwide if one location discriminates against blacks. Furthermore, such a sweeping policy of discrimination would be difficult to hide. Siegelman, supra note 5 at 86, 95 n.49.
34 “Even the well-known cases involving the segregation of railway cars involved maintaining a racial caste system . . . , not a refusal to allow blacks to engage in commerce.” Kennedy, supra note 2, at 291 n.103. One scholar, James Jones, argues that the term “racism” describes both the belief that one’s race is superior to another and the actions attendant to that belief. James Jones, Prejudice & Racism 13 (2d ed. 1997); see Kennedy, supra note 2, at 302 n.164. Historian Leon Litwack contends that current forms of discrimination have roots in the antebellum North, where discrimination stemmed from the belief that blacks “constituted a depraved and inferior race which must be properly kept in its place in a white man’s society.” Leon Litwack, North of Slavery: The Negro in the Free States, 1790–1860, at viii (1961); see Singer, supra note 31, at 134.
35 Ayres, supra note 32, at 842. Often, retailers’ actions result from their concern about security and loss prevention. For example, during an interview conducted on condition of anonymity, an employee of a large national chain of clothing stores revealed that managers currently train their sales associates to follow black and Hispanic customers as they shop as a method of loss prevention. The employee believes that store management is responsible for developing and implementing such a policy at the North Shore Mall in a suburb north of Boston. No official policy can be traced to corporate headquarters. Interview with anonymous employee, North Shore Mall, Peabody, Mass. (Aug. 14, 2002). According to Michael Magill, a consultant in the Security and Loss Prevention field, loss prevention personnel who profile members of one race, age group, or sex are usually part-time employees who are either full-time police officers (inappropriately bringing their “street smarts” into the retail marketplace) or poorly trained loss prevention personnel who are ignoring the total “thief pool” in the store. During a panel discussion at the American Marketing Association’s Marketing and Public Policy Conference, Mr. Magill (whose experience in the field spans forty years, thirty of which have been spent in retail) discussed data developed from hundreds of thousands of shoplifting arrests. He suggested that better indicators of the likelihood of theft, apart from race, should be used to identify potential shoplifters. Michael Magill, Panel Discussion at Marketing and Public Policy Conference, American Marketing Association, Consumer Racial Profiling: Legal, Practitioner, and Research Perspectives (May 17, 2002)(notes on file with author).
36 Ayres, supra note 32, at 843.
37 See Haydon, supra note 18, at 1211.
38 See Ayres, supra note 32, at 843.
39 Austin suggests that merchants who practice CRP “cannot discern a law-abiding black from a potentially law-defying black.” Austin, supra note 4, at 152. They may also perceive the laws designed to deter and punish shoplifting as inefficient and ineffective. Id. at 151; see Graves, supra note 4, at 184.
40 See Austin, supra note 4, at 151; Kennedy, supra note 2, at 329; see also Roberts v. Wal-Mart Stores, Inc., 769 F. Supp. 1086, 1087–88 (E.D. Mo. 1991) (class of African-American plaintiffs alleged that Wal-Mart enforced a discriminatory policy based on assumptions about the lack of credit-worthiness of blacks when it required its cashiers to record the race of customers who paid for their purchases with a check). While this case against Wal-Mart was dismissed, this does not necessarily mean that the claim was not valid. One of the problems CRP victims face is that their experiences are not taken seriously because of such dismissals.
41 Where society will not tolerate overt racism, racist beliefs are repressed. See Graves, supra note 4, at 182. Some individuals’ racist beliefs, however, “unconsciously manifest themselves in [their] decision-making processes.” Id. at 183. Furthermore, psychoanalysts suggest that individuals fail to recognize their own subconscious racist ideas because those ideas do not conform to what society regards as racism, namely, overt racist acts. Given that few individuals perceive themselves as overt racists, subconscious racism must also be labeled as blameworthy to eradicate such attitudes. Barbara Flagg, “Was Blind But Now I See”: White Race Consciousness and the Requirement of Discriminatory Intent, 91 Mich. L. Rev. 953, 989 (1993); see Kennedy, supra note 2, at 280; Haydon, supra note 18, at 1211.
42 See Kennedy, supra note 2, at 304, 325; see also Fredrickson & Siljander, supra note 3, at 104 (suggesting that cultural awareness is necessary for a thorough understanding of racial profiling and discrimination); James L. Fennessy, Comment, New Jersey Law and Police Response to the Exclusion of Minority Patrons from Retail Stores Based on the Mere Suspicion of Shoplifting, 9 Seton Hall Const. L.J. 549, 606 (1999) (arguing that disputes over discrimination in public accommodation involve public policy determinations that should not be decided by subjective, uninformed, and inconsistent police action).
43 Neil G. Williams, Offer, Acceptance, and Improper Considerations: A Common-Law Model for the Prohibition of Racial Discrimination in the Contracting Process, 62 Geo. Wash. L. Rev. 183, 228 (1994); see Austin, supra note 4, at 149; Haydon, supra note 18, at 1214–15.
44 See infra Part III.
45 Opportunity costs accrue when an individual chooses a less desirable alternative instead of a preferred alternative in order to avoid discrimination, such as taking a bus rather than a taxicab. Siegelman, supra note 5, at 91 n.23. Siegelman analyzed the data collected by the Washington Lawyers Committee for Civil Rights Under Law concerning taxicab discrimination and concluded that black individuals took seventy-two seconds longer than whites to successfully hail a cab. See Siegelman supra note 5, at 76, 77; see also Ambinder, supra note 32, at 359–64. Siegelman, valuing this time at twelve dollars per hour, estimated the average “cost” to be twenty-five cents. Of course, he notes that discrimination has an “important psychological dimension that is not adequately captured by a simple opportunity cost valuation such as this one.” Siegelman, supra note 5, at 77.
46 Siegelman, supra note 5, at 77; see Williams, supra note 43, at 187; Main, supra note 3, at 310 (remarking that the legislative history of Title II indicates that discrimination “discourag[es] industry and neglect[s] the needs of an entire segment of the consumer market”).
47 Austin, supra note 4, at 150–51.
48 Id.; see Williams, supra note 43, at 187; Haydon, supra note 18, at 1215 n.22.
49 Austin, supra note 4, at 154.
50 Williams, supra note 43, at 187; see Feagin, supra note 31, at 109; Kennedy, supra note 2, at 277–78, 294; Haydon, supra note 18, at 1215 n.22; see also Philomena Essed, Understanding Racism 2 (1991) (asserting that racism is not static ideology but a condition that is “routinely created and reinforced through everyday practices”).
51 “[T]he harms that result from discriminatory treatment while shopping result not from the inability to complete a transaction or enter into a contract with the store, but from the same rage, humiliation, and pain that employees feel while working in a racially or sexually hostile work environment.” Kennedy, supra note 2, at 333–34. It is difficult, however, to measure the psychological costs of CRP. Siegelman, supra note 5, at 91 n.23.
52 Kennedy, supra note 2, at 277. Kennedy discusses research being conducted in a variety of disciplines (psychology, psychiatry, and social science) to study the effects of living with daily racial assaults on African-Americans’ physical and mental health. Id.
53 Siegelman, supra note 5, at 95 n.54; Williams, supra note 43, at 187.
54 See Siegelman, supra note 5, at 82 (finding only 23 opinions in public accommodation cases since 1990, although there are tens of thousands of federal employment discrimination cases); Haydon, supra note 18, at 1215 (acknowledging that victims of discrimination rarely initiate a lawsuit and the few that do seek to enjoin only the most “flagrant violations”). Siegelman utilizes a broad definition of “public accommodation” that does not correspond precisely to the definition provided in the federal public accommodations statute, 42 U.S.C. § 2000(a)(b). Siegelman, supra, note 5, at 70; see infra note 114. The author’s search of federal court cases (based on 42 U.S.C. §§ 1981, 1982, and 2000(a) and decided between 1990 and 2002) generated approximately 80 published opinions.
55 Haydon, supra note 18, at 1215 (explaining that victims usually do not recognize a civil rights violation absent overt racial prejudice); see Ambinder, supra note 32, at 347.
56 Haydon, supra note 18, at 1215.
57 Siegelman, supra note 5, at 80.
58 Kennedy, supra note 2, at 328; Fennessy, supra note 42, at 602. Daniel Butler, Vice-President of Retail Operations at the National Retailers’ Federation (NRF) states that: “Racial profiling isn’t something people do obviously. It’s not something that people do in a way that everyone else around you normally sees. It’s more covert, and because of its covert nature, it’s harder to detect . . . .” Timothy P. Henderson, Perception that Some Merchants Practice Racial Profiling Generates Debate, Stores Online, at http://www.stores. org/archives/jun01edit.html (last visited Oct. 1, 2002). Siegelman posits: “In a world where race discrimination is illegal in most contexts and is widely considered to be immoral, discriminators have both a legal and social incentive to practice deceptive ‘Have a Nice Day Racism’ rather than overt discrimination.” Siegelman, supra, note 5, at 79; see Haydon, supra note 18, at 1214 (concluding that racial discrimination is generally covert because it is socially unacceptable or even illegal).
59 Feagin, supra note 31, at 103; see Kennedy, supra note 2, at 328. Some blacks may be “so sensitive to white charges of hypersensitivity and paranoia that they err in the opposite direction and fail to see discrimination when it occurs.” Feagin, supra note 31, at 109; see Kennedy, supra note 2, at 328.
60 Karen M. Ruggiero & Donald M. Taylor, Coping with Discrimination: How Disadvantaged Group Members Perceive the Discrimination That Confronts Them, 68 J. Personality Soc. Psychol. 826, 837 (1995); see Karen M. Ruggiero, & David M. Marx, Less Pain and More to Gain: Why High Status Group Members Blame Their Failure on Discrimination, 77 J. Personality Soc. Psychol., 774, 782–83 (1999); Karen M. Ruggiero et al., “Why did I get a ‘D’?” The Effects of Social Comparisons on Women’s Attributions to Discrimination, 26 Personality Soc. Psychol. Bull. 1271, 1271–72 (2000); Karen M. Ruggiero & Donald M. Taylor, Why Minority Group Members Perceive or Do Not Perceive the Discrimination that Confronts Them: The Role of Self-esteem and Perceived Control, 72 J. Personality Soc. Psychol. 373, 385 (1997); see also Cheryl R. Kaiser & Carol T. Miller, Stop Complaining! The Social Costs of Making Attributions to Discrimination, 27 Personality Soc. Psychol. Bull. 254, 255, 261–62 (2001) (positing that stigmatized people may avoid claims of discrimination because such attributions are costly in terms of perceived control over outcomes and social self-esteem); Janet K. Swim & Laurie L. Hyers, Excuse me-—What Did You Say?!: Women’s Public and Private Responses to Sexist Remarks, 35 J. Experimental Soc. Psychol. 68–85 (1999) (finding that fear of the consequences of confronting discriminators may keep stigmatized people from publicly acting on their dissatisfaction).
61 Kennedy, supra note 2, at 325; see Ambinder, supra note 32, at 347.
62 See Ambinder, supra note 32, at 347; See also infra Part III.A (discussing the difficulty in establishing differential treatment); Alexis v. McDonald’s Rest. of Mass., Inc., 67 F.3d 341, 347 (1st Cir. 1995) (no race-based animus is established absent some evidence that defendant’s angry response toward plaintiff stemmed from something other than a race-neutral reaction to a stressful encounter); Singh v. Wal-Mart Stores, Inc., No. CIV.A.98–1613, 1999 WL 374184, at *8 (E.D. Pa. June 10, 1999) (plaintiff was not similarly-situated in all relevant aspects to customers who were attempting to return or exchange merchandise, because there was no evidence that any other customer attempted to return an out-of-warranty appliance, purchase another appliance, and again attempt to make a return the next day in the presence of an employee who witnessed the events of the prior day); Jackson v. Tyler’s Dad’s Place, Inc., 850 F. Supp. 53, 55–56 (D.D.C. 1994), aff’d, 107 F.3d 923 (D.C. Cir. 1996) (plaintiffs’ assertion that they were denied seating because of their race was insufficient to state a claim when they presented no evidence that white patrons who arrived without reservations were seated in the main dining room); Robertson v. Burger King, Inc., 848 F. Supp. 78, 81 (E.D. La. 1994) (plaintiff was unable to state a cause of action since the service at the fast-food restaurant was merely slow and he was eventually served).
63 Haydon, supra note 18, at 1212, 1215, 1228; see Siegelman, supra note 5, at 85, 93 n.37; Ambinder, supra note 32, at 347; Graves, supra note 4, at 186.
64 Kennedy, supra note 2, at 327.
65 Id.
66 See Siegelman, supra note 5, at 70.
67 Kennedy, supra note 2, at 325–26. Daniel Tardiff contends that the subtle discrimination existing in the United States is often unprovable absent the use of testing programs. Consequently, no definitive data exist to support the belief that racial discrimination persists in America. See Daniel M. Tardiff, Comment, Knocking on the Courtroom Door: Finally an Answer from Within for Employment Testers, 32 Loy. U. Chi. L.J. 909, 924–27 (2001); see also infra note 152 (discussing testing).
68 Graves, supra note 4, at 185. Graves reports that many federal judges believe that most, if not all, civil rights claims are frivolous. The implication of these findings is that judges do not believe that there is as much racist behavior in the marketplace as there appears to be. Such beliefs can result from “unconscious” racism. Id. at 184. Furthermore, evidence shows that civil rights claims are still underreported. This is partly because pro bono attorneys, who cannot risk sanctions for frivolity and who work for no compensation, frequently represent the plaintiffs in these cases. Id. at 181 n.135; see also Kennedy, supra note 2, at 333 (“[T]here is a fear that all fact-finders, including judges, are susceptible to the effects of cognitive stereotyping.”).
69 Kennedy, supra note 2, at 327. Kennedy suggests that “courts give little weight to . . . the fact that African-Americans’ experience with racism makes them uniquely qualified to interpret and identify conduct that is a result of anti-black sentiment.” Id.
70 Fennessy, supra note 42, at 584; Graves, supra note 4, at 170–71. Graves attributes such heightened pleading requirements to a number of concerns among many federal judges. For example, civil rights claims are complex and take a great deal of time to litigate. Graves, supra note 4, at 172. In addition, Graves cites an explosion of cases that are blamed on “litigants’ and lawyers’ overuse, misuse, and abuse of the civil justice system.” Id. at 171.
71 See Kennedy, supra note 2, at 281.
72 See generally Amended Complaint, NAACP v. Cracker Barrel Old Country Store, Inc., No. 4:01–CV–325–HLM (N.D. Ga. filed Apr. 11, 2002).
73 See LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1375, 1378–79 (S.D. Fla. 1999) (African-American customers were repeatedly asked to leave store because, according to Denny’s employees, the stove was broken, the restaurant was out of food, or the store was closing); Charity v. Denny’s, Inc., No. CIV.A.98–0554, 1999 WL 544687, at *5 (E.D La. July 26, 1999) (listing examples of subtle harassment, including slow service, discourteous treatment, harassing comments and gestures, and racial insults).
74 Amended Complaint ¶ 1, Cracker Barrel Old Country Store, Inc., (No. 4:01-CV–325–HLM).
75 Id. § I, ¶ 14. “Cracker Barrel maintains actual or constructive control, oversight, or direction over all restaurant operations, including individual restaurant employment practices. Cracker Barrel operates approximately seventeen stores from leased facilities and also leases land and advertising billboards across the United States.” Id.
76 Id. ¶ 1. Plaintiffs patronized or attempted to patronize 28 Cracker Barrel Restaurants in 16 states. Id. ¶ 2.
77 Amended Complaint ¶ 3, Cracker Barrel Old Country Store, Inc., (No. 4:01–CV-–25–HLM).
78 A total of 310 current and former Cracker Barrel employee witnesses provided evidence of discrimination in accommodations at Cracker Barrel restaurants in 31 states. More than 50 employee witnesses have direct evidence that Cracker Barrel restaurant managers directed servers to seat African American patrons apart from white patrons. Id. ¶ 4. Plaintiffs’ claims were corroborated by 96 witnesses who were customers of Cracker Barrel restaurants. Id. ¶ 5.
79 Id. ¶ 7.
80 Id. ¶ 11.
81 Amended Complaint at Section VIII, Prayer for Relief, ¶¶ 3–4, 5, NAACP v. Cracker Barrel Old Country Store, Inc., No. 4:01–CV–325–HLM (N.D. Ga. filed Apr. 11, 2002). The Supreme Court has recognized that a § 1981 plaintiff is entitled to “compensatory and, under certain circumstances, punitive damages.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975).
82 Main, supra note 3, at 290.
83 Id. at 316; see Kennedy, supra note 2, at 304 (characterizing plaintiffs’ options as “a hodgepodge of legal claims”); Haydon, supra note 18, at 1212 (stating that “public accommodations cases have relied upon a patchwork of claims”).
84 Kennedy, supra note 2, at 338.
85 Id.; see Haydon, supra note 18, at 1228.
86 Haydon, supra note 18, at 1228. Tort law claims that are typically brought by CRP plaintiffs include the following: (1) False imprisonment, see, e.g., Shawl v. Dillard’s, Inc., 17 Fed. Appx. 908, 910 n.1 (10th Cir. 2001); Hampton v. Dillard Dep’t Stores, Inc. 247 F.3d 1091, 1100, 1112 (10th Cir. 2001), cert. denied, 534 U.S. 1131 (2002); Rogers v. Elliott, 135 F. Supp. 2d 1312, 1313 (N.D. Ga. 2001); (2) assault and battery, see, e.g., Rogers v. Elliott, 135 F. Supp. 2d 1312, 1313, (N.D. Ga. 2001); Holmes v. Dillard Dep’t Store, No. CIV.A.99–3444, 2000 WL 1725082, at *4–5 (E.D. La. Nov. 17, 2000); McCaleb v. Pizza Hut of Am., Inc., 28 F. Supp. 2d 1043, 1048 (N.D. Ill. 1998); (3) defamation, see, e.g., Shawl, 17 Fed. Appx. at 910; Garrett v. Tandy Corp., 142 F. Supp. 2d 117, 118–20 (D. Me. 2001); (4) negligent training and supervision, see, e.g., Williams v. Cloverland Farms Dairy, Inc., 78 F.Supp. 2d 479, 484–87 (D. Md. 1999); Perry v. S.Z. Rest. Corp., 924 F.Supp. 548, 550–54 (S.D.N.Y. 1996); (5) intentional infliction of emotional distress, see, e.g., Brown v. Zaveri, 164 F. Supp. 2d 1354, 1363 (S.D. Fla. 2001); Brown v. Wal-Mart Stores, Inc., No. 96–CV–1500, 1998 WL 178798, at *3–4 (N.D.N.Y. Apr. 10, 1998); Perkins v. Marriott Int’l, Inc., 945 F. Supp. 282, 283, 285–87 (D.D.C. 1996).
87 See, e.g., Shawl, 17 Fed. Appx. at 910 n.1; Hampton, 247 F.3d at 1100, 1112, cert. denied, 534 U.S. 1131 (2002); Rogers, 135 F. Supp. 2d at 1313; (2) assault and battery, see, e.g., Rogers, 135 F. Supp. 2d at 1313; Holmes, No. CIV.A.99–3444, 2000 WL 1725082, at *4–5 (E.D. La. Nov. 17, 2000); McCaleb, 28 F. Supp. at 1048.
88 Austin, supra note 4, at 151; see Thomas Brad Bishop, Excerpts from the Law of Shoplifting: A Guide for Lawyers and Merchants, 19 Cumb. L. Rev. 43, 55–56, 62–64 (1988).
89 Austin, supra note 4, at 152. Austin suggests that K-Mart Corp. v. West Virginia Human Rights Commission is one case where a store owner used objective evidence of a shoplifter profile. Id. at 152, n.21; see K-Mart Corp. v. W. Va. Human Rights Comm’n, 383 S.E.2d 277, 278 (W.V. 1989) (store previously warned to be on the lookout for a shop-lifting band of gypsies).
90 Williams, supra note 43, at 218; see Reid v. Key Bank of S. Me., Inc, 821 F.2d 9, 11 (1st Cir. 1987) (affirming jury’s conclusion that defendant bank acted in bad faith when, motivated by racial prejudice, it restricted plaintiff’s credit and seized his assets without notice); Ricci v. Key Bancshares of Me., Inc., 662 F. Supp. 1132, 1141 (D. Me. 1987) (jury concluded bank unlawfully discriminated against plaintiff and violated its duty of good faith and fair dealing when it terminated a line of credit it had extended to plaintiff).
91 Williams, supra note 43, at 225.
92 Id. at 226.
93 Nan D. Hunter, Accommodating the Public Sphere: Beyond the Market Model, 85 Minn. L. Rev. 1591, 1617 (2001); see Singer, supra note 31, at 1345–48.
94 Singer, supra note 31, at 1300, 1301. New Jersey, however, has a different approach, as it appears to be the only state that has extended the common law duty to serve to all business and organizations that serve the general public. Fennessy, supra, note 42, at 553.
95 Singer, supra note 31, at 1475.
96 Id. at 1300.
The antebellum law presented itself in a neutral framework yet obscured the fact that African Americans were not included among the right-holders protected by the right of access to businesses that held themselves out as open to the public. The post-Civil War period brought in an era of confusion and turmoil as social groups attempted to work out the new relations between the races, experimenting with options from full, equal, and integrated access to segregation to outright exclusion. The Jim Crow era constituted property rights in a manner that both established and perpetuated a racial caste system, while suppressing the contradiction between segregation laws and emerging conceptions of absolute private property rights. The civil rights era again revolutionized social relations in the 1960s.
Id. at 1475–76.
97 Hunter, supra note 93, at 1614. State laws proscribe primarily three types of discrimination. The most common, sex discrimination, is banned by 43 state statutes, including the District of Columbia. Of those 43 statutes, 11 also prohibit sexual orientation discrimination. Twenty-one state statutes, including the District of Columbia, cover marital status discrimination. Id. at 1615–16.
98 Kennedy, supra note 2, at 337. For example, New Jersey’s Law Against Discrimination prohibits discrimination in places of public accommodation, including retail stores, based on race, creed, ethnicity, gender, and sexual orientation. See N.J. Stat. Ann. § 10:5–4 (West 1993 & Supp. 2002).
99 Singer, supra note 31, at 1290; see Hunter, supra note 93, at 1628 n.190. States that have no statutes prohibiting race-based discrimination in retail stores include Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, and Texas. Singer, supra note 31, at 1290.
100 Fennessy, supra note 42, at 607. Fennessy also explains that, under the New Jersey Law Against Discrimination, police officers are not authorized to enforce the anti-discrimination provisions when disputes arise in public accommodations. Id.
101 Haydon, supra note 18, at 1226.
102 Id.
103 15 U.S.C. §§ 41–58 (2000).
104 The legislative history of a Pennsylvania law provides one example:
The purpose of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) is to eradicate “unfair or deceptive business practices” and prevent fraud. Among the “unfair or deceptive business practices” barred by the UTPCPL is the “fail[ure] to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made.”
Singh v. Wal-Mart Stores, Inc., No. CIV. A. 98–1613, 1999 WL 374184, at *10 (E.D. Pa. June 10, 1999) (citations omitted); see also Pa. Stat. Ann. tit. 73, § 201–2 (West 1993).
105 Federal Trade Commission, Policy Statement on Unfairness, reprinted in H.R. Rep. No. 98–156, 1st Sess. pt. 1, at 36 (1983).
106 Federal Trade Commission, Policy Statement on Deception, reprinted in In re Cliffdale Assocs., Inc., 103 F.T.C 110, 175 (1984). According to Dr. Ross Petty, Professor of Marketing and Technology Law, Babson College, Wellesley, MA, the FTC has never challenged discriminatory advertising as deceptive. Ross D. Petty & Anne-Marie Harris, Regulating Racially Discriminatory Advertising: Brown v. Board of Education Meets Modern Marketing 30 (2002) (unpublished manuscript, on file with author).
107 Tenn. Code Ann. § 47–18–101 to (125 (2001).
108 Second Amended Complaint ¶¶ 133–142, Berry v. South East Waffles, L.L.C., No. 4: 01–CV–28 (E.D. Tenn. filed Feb. 15, 2002). This case settled on August 6, 2002.
109 Id. ¶¶ 133–142.
110 “The truth is that the affronts and denials that this section, if enacted, would correct are intensely human and personal. Very often they harm the physical body, but always they strike at the root of the human spirit, at the very core of human dignity.” S. Rep. No. 88–872 (1964), reprinted in 1964 U.S.C.C.A.N. 2355, 2369; see also John Hope Franklin, The Civil Rights Act of 1866 Revisited, 41 Hastings L.J. 1135, 1137 (1990) (“[The Civil Rights Act of 1964] was direct and specific and addressed acute problems facing African Americans as they sought to make their way through the maze of practices, customs, traditions, and even laws that impeded their everyday functions and activities.”).
The only purpose of the 1964 Civil Rights Act was arguably to implement that aspect of the common-law rule [that only innkeepers, common carriers, or places of entertainment (in some states) had a duty to serve the public without unjust discrimination] while overturning the pieces of the common-law rule that held that segregation was a “reasonable regulation” of private property open to the public and that “separate facilities were equal.”
Singer, supra note 31, at 1337.
111 Pub.L. No. 88–352, 201, 78 Stat. 241(1964) (codified as amended at 42 U.S.C. § 2000a to a–6 (1994)).
112 H.R. Rep. No. 88–914 (1963), reprinted in 1964 U.S.C.C.A.N. 2355, 2393–94.
113 U.S. Const. art. I, § 8, cl. 3; see S. Rep. No. 88–872 (1964), reprinted in 1964 U.S.C.C.A.N. 2355, 2366–68. The Act was not intended to replace the Act of 1866. Franklin, supra note 110, at 1137; see Singer, supra note 31, at 1434; see also Watson v. Fraternal Order of Eagles, 915 F.2d 235, 239–40 (6th Cir. 1990).
114 42 U.S.C. § 2000(a) (1994). A “public accommodation” is defined as:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally 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; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.
Id. at 2000(a)(b).
115 Haydon, supra note 18, at 1219; see, e.g., Chu v. Gordman’s Inc., No. 8:01CV182, 2002 WL 802353, at *3 (D. Neb. Apr. 12, 2002) (holding that a retail store is not a place of public accommodation under the Act); Halton v. Great Clips, Inc., 94 F. Supp. 2d 856, 861–62 (N.D. Ohio 2000) (holding that a hair salon is not a place of entertainment, and therefore, not a place of public accommodation under Title II).
116 42 U.S.C. § 2000a(b)(2).
117 Haydon, supra note 18, at 1219; see Kennedy, supra note 2, at 335; Singer, supra note 31, at 1412. Although retail stores are excluded from coverage, the definition of public accommodation includes stores that have eating establishments (or other covered entities) located on the premises. 42 U.S.C. § 2000a(b)(4)(A)(ii). Consequently, the statute reaches hundreds of stores that have restaurants or lunch counters. Hunter, supra note 93, at 1622; see Thomas v. Tops Friendly Markets, Inc., No.96–CV1579, 1997 WL 627553, at *3 (N.D.N.Y. Oct. 8, 1997) (holding that a retail establishment that contains a food counter covered by 42 U.S.C § 2000a(b)(2) is a place of public accommodation).
118 110 Cong. Rec. 6533 (1964). To get the bill passed, it was probably necessary to limit the applicability of Title II to certain kinds of businesses. Singer, supra note 31, at 1417. According to legal scholar Deseriee Kennedy, the 1964 Congress expected that less bothersome areas of discrimination would disappear through voluntary action and public effort. Kennedy, supra note 2, at 335–36.
119 See Singer, supra note 31, at 1418.
120 Id. at 1412–13; Main, supra note 3, at 313. Singer provides compelling arguments on both sides of this debate. Singer, supra note 31, at 1413–35. For example, he points to Title II’s express exemption for private clubs as evidence that Congress did not intend to exempt retail stores from coverage under the public accommodations statute. “In the absence of an express exemption, we should conclude that Congress did not intend affirmatively to give such stores a right to discriminate . . . .” Id. at 1434. Main urges Congress to amend Title II by updating the list of covered entities to reflect societal changes experienced since 1964, while Hunter maintains that a generic definition of the term “public accommodation” is appropriate. Hunter, supra note 93, at 1614, 1615; Main, supra note 3, at 313–14. Both Main and Hunter highlight the broad coverage of Title III of the Americans With Disabilities Act of 1990 that also proscribes discrimination in places of public accommodation. Hunter, supra note 93, at 1614–15; Main, supra note 3, at 314. Hunter also discusses the proper meaning of “public” in the context of civil rights law. See Hunter, supra note 93, at 1628–29; see also United States v. Baird, 85 F.3d 450, 453–54 (9th Cir. 1996) (holding that the presence of two video game machines, a form of “entertainment,” in a retail convenience store, transformed the retail store into a place of public accommodation under 42 U.S.C. § 2000a(b)).
121 See Singer, supra note 31, at 1413–15. Perhaps the omission is due, in part, to the fact that “the common law never provided a right of access to retail stores although it did provide a right of access to other public accommodations.” Id. at 1291.
122 See, e.g., Chu v. Gordman’s Inc., No. 8:01CV182, 2002 WL 802353, at *3, 4 (D. Neb. Apr. 12, 2002) (rejecting plaintiff’s argument that the amusement derived from shopping at the half-price store can transform the retail store into a place of entertainment); McCrea v. Saks, Inc., No. CIV. A. 00–CV1936, 2000 WL 1912726, at *2 (E.D. Pa. Dec. 22, 2000) (holding that retail establishments are excluded from Title II coverage based on the ordinary meaning of the statute’s words and the exclusionary language in § 2000a(b)(2)); Halton v. Great Clips, Inc., 94 F. Supp. 2d 856, 861–62 (N.D. Ohio 2000) (finding that a hair salon is not a place of public accommodation under the act because it is not a place of entertainment, and emphasizing that Congress could have amended Title II to include service establishments if it had wanted); Haywood v. Sears, Roebuck & Co, No. 7:94–CV–106–BR2, 1996 U.S. Dist. LEXIS 11954, at *7 (E.D.N.C. July 18, 1996) (holding that statute was inapplicable because defendant’s retail store was not a “place of public accommodation”).
123 See 42 U.S.C. § 2000a-3(c). The statute provides, in pertinent part:
In the case of an alleged act or practice prohibited by this subchapter which occurs in the State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishing or authorizing a state or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) of this Section before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings.
Id.
124 See, e.g., Stearnes v. Baur’s Opera House, Inc., 3 F.3d 1142, 1144–45 (7th Cir. 1993) (holding that plaintiffs must give notice to the Illinois Department of Human Rights before filing a Title II claim); Watson v. Fraternal Order of Eagles, 915 F.2d 235, 242 (6th Cir. 1990) (deeming it unnecessary to reach the merits of plaintiffs’ action under Title II because plaintiffs did not exhaust their administrative remedies as required by the statute); Brown v. Zaveri, 164 F. Supp. 2d 1354, 1360 (S.D. Fla. 2001) (Title II claim dismissed for failure to exhaust remedies under the Florida Commission for Human Rights); Hill v. Shell Oil Co., 78 F. Supp. 2d 764, 772 (N.D. Ill. 1999) (denying defendant’s motion to dismiss the Title II claims for lack of subject matter jurisdiction because plaintiffs met the jurisdictional requirements by satisfying the 30-day state notice rule in § 2000a-3(c)); White v. Denny’s Inc., 918 F. Supp. 1418, 1423 (D. Co. 1996) (dismissing plaintiff’s Title II claim since plaintiffs conceded they failed to notify the Colorado Civil Rights Commission).
125 Robinson v. Power Pizza, Inc., 993 F. Supp. 1458, 1459–60 (M.D. Fla. 1998).
126 Id. at 1460–61. The FCHR is empowered to “receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice.” Fla. Stat. Ann. § 760.06(5) (West 1997 & Supp. 2001).
127 See 42 U.S.C. §§ 2000a-3, 2000a-6(b); see also Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968) (per curiam).
128 See Haydon, supra note 18, at 1251; Main, supra note 3, at 314–15.
129 Act of Apr. 9, 1866, ch. 31, 14 Stat. 27, 27 (reenacted by Enforcement Act of 1870, ch. 114, § 18, 16 Stat. 140, 144 (1870)) (codified as amended at 42 U.S.C. §§ 1981–1982 (2000)). Congress enacted the law pursuant to its power, under the Thirteenth Amendment, to eradicate involuntary servitude. See Runyon v. McCrary, 427 U.S. 160, 168–70 (1976).
130 Jones v. Alfred H. Mayer Co., 392 U.S. 409, 443 (1968). “The aim of [§ 1981] is to remove the impediment of discrimination from a minority citizen’s ability to participate fully and equally in the marketplace.” Bobbitt by Bobbitt v. Rage, Inc., 19 F. Supp. 2d 512, 516 (W.D.N.C. 1998); see Patterson v. McLean Credit Union, 491 U.S. 164, 190 (1989).
131 Barry Sullivan, Historical Reconstruction, Reconstruction History, and the Proper Scope of Section 1981, 98 Yale L.J. 541, 549, 552, 554, 556 (1989).
132 Franklin, supra note 110, at 1141.
133 See, e.g., Chu v. Gordman’s, Inc., No.8:01CV182, 2002 WL 802353, at *6 (D. Neb. Apr. 12, 2002) (the right to contract under § 1981 should be broadly construed); Charity v. Denny’s, Inc., No. CIV.A.98–0054, 1999 WL 544687, at *5 (E.D. La. July 26, 1999) (finding that courts must afford a liberal construction of the Civil Rights Act in order to carry out the purpose of Congress to eliminate the inconvenience, unfairness, and humiliation of racial discrimination); Haywood v. Sears, Roebuck and Co., No. 7:94–CV–106–BR2, 1996 U.S. Dist. LEXIS 11954, at *5 (E.D.N.C. July 18, 1996) (Sections 1981 and 1982 must be construed broadly because they are remedial statutes).
134 Kennedy, supra note 2, at 279.
135 The statute contains no limitation concerning the types of contracts that it covers. See Singer, supra note 31, at 1434.
136 42 U.S.C. § 1981 (1994). The U.S. Supreme Court has held that there is a “cause of action for private acts of racial discrimination” under § 1981 (and § 1982). See Patterson v. McLean Credit Union, 491 U.S. 164, 177 (1989); Runyon v. McCrary, 427 U.S. 160, 173 (1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 436–37 (1968); see also Sullivan, supra note 131, at 550. In Patterson v. McLean Credit Union, the U.S. Supreme Court had held that § 1981 did not apply to post-formation conduct in contracting relations. Patterson, 491 U.S. 164 at 179–80. The court concluded that “[racial harassment] is not actionable under § 1981, which covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process.” Id. The Civil Rights Act of 1991 reversed the Patterson decision by amending The Civil Rights Act of 1866 “explicitly to prohibit discrimination in entering into, performing, and enforcing all types of contracts.” See Williams, supra note 43, at 213; see also Perry v. Command Performance, No. 89–2284, 1991 WL 464475, at *2 (E.D. Pa. Mar. 27, 1991), aff’d, 945 F.2d (3d Cir. 1991) (a decision made before the 1991 amendment, where the plaintiff could not establish a § 1981 claim because the discriminatory conduct occurred after formation of a race-neutral contract for hairstyling services). Kennedy provides an excellent explanation of the Supreme Court’s restrictive reading of “making and enforcing contracts” and the ensuing 1991 amendment. See Kennedy, supra note 2, at 308–09; see also Hunter, supra note 93, at 1621.
137 42 U.S.C. § 1982.
138 McCrary v. Runyon, 515 F.2d 1082, 1087 (4th Cir. 1975), aff’d, 427 U.S. 160 (1976).
139 Kennedy, supra note 2, at 334.
140 See Morris v. Office Max, Inc., 89 F.3d 411, 414–15 (7th Cir. 1996) (holding that although plaintiffs were discouraged from patronizing the store because the police were summoned to “check out” African-American customers, they were not excluded from the store, denied service or asked to leave, and consequently, nothing impaired or interfered with the plaintiffs’ rights to make a purchase); Halton v. Great Clips, Inc., 94 F. Supp. 2d 856, 870 (N.D. Ohio 2000) (holding that defendant’s failure to carry products used or preferred by African Americans did not deny plaintiffs the right to purchase property under § 1982 regardless of whether the failure to carry such products was an unreasonable business decision).
141 Jeffrey v. Home Depot U.S.A., Inc., 90 F. Supp. 2d 1066, 1070 (S.D. Cal. 2000); see also Morris, 89 F.3d at 414–15 (referring to the same rationale for deciding that defendant violated neither § 1981 nor § 1982); Haywood v. Sears, Roebuck and Co., No. 7:94–CV–106–BR2, 1996 U.S. Dist. LEXIS 11954, at *5, 7 (E.D.N.C. July 18, 1996) (plaintiff’s claim under § 1982, like their § 1981 claim, failed because singling out plaintiffs as potential thieves does not violate their rights under either section of the statute).
142 See Henderson, Harris, & Williams, supra note 28.
143 The Supreme Court adopted this standard of proof for § 1981 claims based on the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), two Title VII cases. See Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989). Courts in four circuits have applied this standard. See Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1101–12 (10th Cir. 2001), cert. denied, 534 U.S. 1131 (2002); Morris, 89 F.3d at 413–14; Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir. 1994); Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); Chu v. Gordman’s, Inc., No. 8:01CV182, 2002 WL 802353, at *4 (D. Neb. Apr. 12, 2002); Rogers v. Elliott, 135 F. Supp. 2d 1312, 1314 (N.D. Ga. 2001); Buchanan v. Consol. Stores Corp., 125 F. Supp. 2d 730, 734 (D. Md. 2001); Holmes v. Dillard Dep’t Store, No. CIV.A.99–3444, 2000 WL 1725082, at *2 (E.D. La. Nov. 17, 2000); Jeffrey, 90 F. Supp. 2d at 1069; Bobbitt by Bobbitt v. Rage, Inc., 19 F. Supp. 2d 512, 517 (W.D.N.C. 1998); Ackaa v. Tommy Hilfiger Co., No. CIV.A.96–8262, 1998 WL 136522, at *3 (E.D. Pa. Mar. 24, 1998); Baker v. McDonald’s Corp., 686 F. Supp. 1474, 1481 (S.D. Fla. 1987), aff’d, 865 F.2d 1272 (11th Cir. 1988). Courts have adopted the McDonnell Douglas burden-shifting framework for proving Title II cases as well. See Charity v. Denny’s, Inc., No. CIV.A.98–0554, 1999 WL 544687, at *5 (E.D. La. July 26, 1999) (concluding that the same prima facie test applies in § 1981 cases as claims arising under § 2000(a)); Arguello v. Conoco, No. CIV.A.3:97–CV–0638–H, 1998 WL 713277, at *4 (N.D. Tex. Oct. 7, 1998), aff’d in part, rev’d in part, 207 F.3d 803 (5th Cir. 2000) (adopting the burden-shifting framework due to the lack of guidance from the Fifth Circuit Court of Appeals about what standard to use and to the Fifth Circuit Court of Appeals’ willingness to apply the Title VII burden-shifting framework outside of Title VII); see also Haydon, supra note 18, at 1220.
144 The Supreme Court first articulated that plaintiffs must establish intentional racial discrimination in General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 388–91 (1982) (emphasis added); see also Patterson, 491 U.S. at 186. Some commentators disagree with the intent requirement. See Graves, supra note 4, at 192 n.212 (arguing that the text of sections 1981 and 1982 clearly contains no intent requirements). According to Graves, the intent requirement is not rooted in the reality of racist behavior, which “exists regardless of the discriminator’s intent.” Id. “The position implied by the discriminatory intent rule, that conscious discrimination is blameworthy but unconscious discrimination is not, is counter-productive of the ultimate goal of racial justice. Invalidating only conscious racism provides an incentive for whites to repress and deny whatever racist attitudes they in fact harbor.” Flagg, supra note 41, at 989. By comparison, although most courts do not require Title II plaintiffs to prove that the defendant-merchant intentionally discriminated against them, a few courts have implied that intent is also an element of a Title II claim. See LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1375, 1382 (S.D. Fla. 1999); Harrison v. Denny’s Rest., Inc., No. C–96–0343(PJH), 1997 WL 227963, at *4 (N.D. Cal. Apr. 24, 1997); Jones v. City of Boston, 738 F. Supp. 604, 606 (D. Mass. 1990).
145 Under the statute, all persons have the same right: 1) to make and enforce contracts, 2) to sue, be parties, and give evidence, 3) to the full and equal benefit of the laws, and 4) to be subjected to like pains and punishments. See 42 U.S.C. § 1981(a). To date, litigation involving § 1981 most commonly involves the right to make and enforce employment contracts. See Hawkins v. Pepsico, 203 F.3d 274, 278 (4th Cir. 2000); Buchanan, 125 F. Supp. 2d at 734. Claims involving retail transactions have been relatively infrequent. See Morris, 89 F.3d at 413.
146 McDonald Douglas Corp., 411 U.S. at 802; see Burdine, 450 U.S. at 253; Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir. 2001); Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 879 (6th Cir. 2001). This standard is based on the framework established in employment discrimination cases. See cases cited supra note 143.
147 See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Burdine, 450 U.S. at 253; Murrell, 262 F.3d at 257; Christian, 252 F.3d at 879.
148 Amended Complaint ¶¶ 2, 4–10, NAACP v. Cracker Barrel Old Country Store, Inc., No. 4:01–CV–325–HLM, (N.D. Ga. filed Apr. 11, 2002).
149 Rosenblatt v. Bivona & Cohen, P.C., 946 F. Supp. 298, 300 (S.D.N.Y. 1996); see Murrell, 262 F.3d at 258 (plaintiffs, who were three African Americans and one caucasian, proved they were members of a protected class because both blacks and whites can sue for violations of § 1981); Cedeno v. Wal-Mart Stores, Inc., No. CIV.A.98–CV–479, 1999 WL 1129638, at *2 (E.D. Pa. Nov. 30, 1999) (persons of Hispanic origin may use § 1981 to sue for racial discrimination); Bobbitt by Bobbitt v. Rage, Inc., 19 F. Supp. 2d 512, 520 (W.D.N.C. 1998) (section 1981 prohibits discrimination against non-minority individuals who associate with African Americans); Shen v. A&P Food Stores, No. 93–CV 1184(FB), 1995 WL 728416, at *3 (E.D.N.Y. Nov. 21, 1995) (section 1981 protects identifiable classes of persons who are subjected to intentional discrimination because of their ancestry or ethnic characteristics).
150 Black’s Law Dictionary 577 (7th ed. 1999); see Ackerman v. Food-4-Less, No.98–CV–1011, 1998 WL 316084, at *2 (E.D. Pa. June 10, 1998) (plaintiff stated valid claim of intentional race discrimination where defendant’s security guard used numerous racial slurs against her and told her that she could not be married to her husband because he was white and she was a minority); Shen, 1995 WL 728416, at *3 (plaintiff’s allegations of purposeful discrimination are sufficient to state a claim where cashier ordered plaintiffs to shop at a Chinese-run supermarket, used a dirty gesture and said “Get out of here” and an employee shouted to one plaintiff, “Go back to China”); Jones v. City of Boston, 738 F. Supp. 604, 606 (D. Mass. 1990) (finding direct evidence of race-based animus where bartender suggested to a group of white women that they not speak to “niggers” and physically threw plaintiff out of the bar).
151 Ambinder, supra note 32, at 355. In the housing context, for example, black and white testers have been able to prove intentional discrimination when they attempted to rent the same apartment. See Haydon, supra note 18, at 1216; see generally Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). Using this method enables researchers to control for other variables, thereby increasing the probative value of the information they obtain. See Haydon, supra note 18, at 1251; Tardiff, supra note 67, at 926–27. While testing can provide invaluable evidence of the defendant’s discriminatory intent, Siegelman suggests that it would be too cumbersome to undertake testing in retail establishments. See Siegeleman, supra note 5, at 81. Currently, there are no significant programs that test for discrimination in public accommodations or retail establishments, although some companies perform internal “audits” to curb poor service. Haydon, supra note 18, at 1212; see Siegelman, supra note 5, at 95 n.50. One explanation for the lack of testing in retail establishments is that the courts have not yet addressed the issue of whether testers would have standing to sue. Haydon, supra note 18, at 1218. Perhaps there is also fear that empirical data would reveal the frequency of discriminatory confrontation and harassment in the marketplace.
152 See Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1109 (10th Cir. 2001), cert. denied, 534 U.S. 1131 (2002) (stating that evidence of discrimination need not be admitted by defendant); Joseph v. N.Y. Yankees P’ship, No. 00 CIV. 2275(SHS), 2000 WL 1559019, at *5 (S.D.N.Y. Oct. 19, 2000) (explaining that discriminatory intent can be inferred when plaintiff can show specific instances where individuals situated similarly “in all relevant aspects” were treated differently according to their race); Washington v. Duty Free Shoppers, Ltd., 710 F. Supp. 1288, 1289 (N.D. Cal. 1988) (explaining that a confession of discrimination is not necessary for finding evidence of discrimination). In cases where there is no direct evidence of intentional discrimination, some courts require a plaintiff to establish a prima facie case of racial discrimination by showing that: (1) plaintiff is a member of a protected class; (2) he or she attempted to make, enforce or secure the performance of a contract; and (3) was denied the right to do so; and the opportunity to make, enforce, or secure the performance of a contract for like goods or services remained available to similarly situated persons outside of the protected class. See, e.g., Halton v. Great Clips, Inc., 94 F. Supp. 2d 856, 864–65 (N.D. Ohio 2000); LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1375, 1382 (S.D. Fla. 1999); Singh v. Wal-Mart Stores, Inc., No. CIV.A.98–1613, 1999 WL 374184, at *6 (E.D. Pa. June 10, 1999); Wells v. Burger King Corp., 40 F. Supp. 2d 1366, 1368 (N.D. Fla. 1998); White v. Denny’s, Inc., 918 F. Supp. 1418, 1424 (D. Colo. 1996).
153 See Hampton, 247 F.3d at 1107; see also supra Part I.D.
154 Williams, supra note 43, at 228.
155 Haydon, supra note 18, at 1213 (explaining that it is convincing evidence of discrimination where black plaintiffs could show that similarly situated white customers obtained the services that had been denied to them. Often, however, no such comparison is possible). When no valid comparison is possible “it may be difficult to distinguish bad service that stems from incompetence, chance, or mistake from bad service that is motivated by illegal discrimination.” Id.; see Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 871 (6th Cir. 2001); Cook v. CSX Transp. Corp., 988 F.2d 507, 512 (4th Cir. 1993); Callwood v. Dave & Buster’s, Inc., 98 F. Supp. 2d 694, 707 (D. Md. 2000).
156 See, e.g., Amended Complaint, ¶¶ 91–102, NAACP v. Cracker Barrel Old Country Store, Inc., No. 4:01–CV–325–HLM, (N.D. Ga. filed Apr. 11, 2002). On July 25, 2001, at approximately 9:48 p.m., Chandra Harmon and her friend, Renee Daniel, arrived at Cracker Barrel Country Store #29 in Chattanooga, Tennessee. Ms. Harmon, who is African-American, and Ms. Daniel, who is a multi-racial woman, were accompanied by their children all of whom are either African-American or multi-racial. The restaurant and parking lot were full. As they walked from the parking lot to the restaurant, they passed a white customer who told Harmon’s party that the Cracker Barrel was still open and that the restaurant seated customers until 10 p.m. When Harmon’s party entered the restaurant, a server stopped them, and informed them that the restaurant was about to close. Harmon and Daniel asked if they could be seated, as they were from out of town and had hungry children with them. The server checked with the manager who approached Ms. Harmon and informed her that the restaurant had stopped seating patrons for the evening and that Cracker Barrel would be unable to serve her party. The manager refused Daniel’s request to make an exception because their children were hungry. At approximately 10 p.m., four white men walked into the restaurant behind Harmon and Daniel. To both parties, the manager stated that, “If I let one of you in, I have to serve you all.” The Harmon party left the restaurant and got in the car. While still in the parking lot, Harmon and Daniel discussed the incident. Through the window, they could see that the four white customers were seated and drinking beverages. They decided to return to the restaurant. Harmon knocked on the restaurant door, now locked, and demanded to speak to the manager again. When the manager came outside, he initially denied that the four white customers were being served. Harmon and Daniel pointed out that the four customers in question were visible from the front window. The manager went back into the restaurant. At approximately 10:15 p.m., while the manager was inside, Daniel and Harmon watched another white male enter the restaurant. He, too, was seated and served. When the manager returned, he stated, “I just looked at our tapes and I don’t have anything rung up after 10:00.” The manager also said that the four white customers, who entered the restaurant after Harmon’s party, were seated before 10:00 p.m. Id.
157 See id. ¶¶ 192–201.
193. On February 10, 1999, Ms. Campbell visited the Wilson, North Carolina Cracker Barrel on Highway 264. She was with six family members–-three other adults and three minors. The Campbells were the only African Americans in the restaurant. The restaurant was not crowded.
194. When they arrived, Ms. Campbell requested a large table in the non-smoking section. The hostess, a white woman, said, “If you want to be served, you will go to the section where we take you.”
195. Though there were three large, non-smoking tables available, and one large smoking table available, the hostess seated the Campbells at a small table in a corner of the smoking section, behind a partition. Ms. Campbell’s family were [sic] forced to squeeze together in order to fit at the assigned table.
196. The white server was rude to them. He rushed them and spoke curtly in a demeaning tone while taking their food and drink order.
197. The Campbell party then waited for approximately one half-hour before they were served their drinks. When Ms. Campbell reminded their [sic] of her request for ice, he took all the drinks, not just hers, back to the kitchen. The Campbells did not receive their drinks again.
198. The Campbell party waited for approximately another hour and were not served any food or drinks. The server did not come back to their table during this time, even though he checked the other tables in the section. Meanwhile, in the time during which the Campbells waited, a white party of approximately seven customers arrived, were served dinner and desert [sic], ate their food, and left the restaurant.
199. After approximately one and a half hours, the Campbells had still not been served their drinks or food. They decided to leave. They asked a white female hostess if they could see the manager. She returned with a young black man to speak with them. They asked him when their food would be ready. After checking with the kitchen, he returned to the [sic] Ms. Campbell’s table and informed them that the kitchen had not yet started to prepare their order. The Campbells then left the restaurant.
200. The next day, Ms. Campbell telephoned Cracker Barrel’s Corporate Headquarters in Lebanon, Tennessee. She spoke with Cracker Barrel counsel, Michael Zylstra. He told Ms. Campbell that Cracker Barrel was a private restaurant, and that it reserved the right to serve whomever it wanted. When Ms. Campbell told Mr. Zylstra that she was going to begin to record the phone conversation, he refused to speak further.
Id. ¶¶ 193–200.
158 Cook, 988 F.2d at 512; see Christian, 252 F.3d at 871; Callwood, 98 F. Supp. at 707.
159 Haydon maintains, “[e]ven if the plaintiff is able to observe white customers receiving better service, there are many respects in which the plaintiff may not have been situated similarly to the observed white customer.” Haydon, supra note 18, at 1232. Graves argues that courts have redefined the right of people of color not to be intentionally discriminated against in the marketplace so that now people of color have only the right not to be intentionally and overtly discriminated against. Graves, supra note 4, at 192 (emphasis added).
160 Haydon, supra note 18, at 1232.
161 See, e.g., Alexis v. McDonald’s Rest. of Mass., Inc., 67 F.3d 341, 347 (1st Cir. 1995) (no race-based animus is established absent some evidence that defendant’s angry response toward plaintiff stemmed from something other than a race-neutral reaction to a stressful encounter); Wells v. Burger King Corp., 40 F. Supp. 2d 1366, 1368 n.2 (N.D. Fla. 1998) (proving that similarly situated individuals outside the protected class were treated differently is problematic where there is no evidence that a group of four non-minority women were refused service when, like plaintiffs, they entered the restaurant late at night, immediately asked to see the manager about an earlier incident at the drive-through window, handed identification to the manager, and only asked to be served after having a less-than-friendly conversation with the manager); Perkins v. Marriott Intern., Inc., 945 F. Supp. 282, 286 (D.D.C. 1996) (plaintiffs, whose belongings were scattered about their room and whose call for security assistance was ignored, fail to present evidence of racial animus because they cannot show that a well-behaved non African-American couple, staying at the hotel as cash customers, and who owed $18 for a breakfast bill, would have drawn the attention of Marriott security personnel).
162 Christian, 252 F.3d at 872. The standard modifies the 3rd and 4th prongs of the prima facie test set forth above. The new test “allows a plaintiff to state a claim when similarly situated persons are not available for comparison, as will often be the case in the commercial establishment context.” Id. The court explained that although the McDonnell Douglas test adequately represented the plaintiff’s ultimate burden of proof in a § 1981 action, it was inappropriate to employ it as a prima facie standard in cases involving consumer discrimination. See id. at 871–72. The Court echoed Callwood’s rationale for replacing the McDonnell Douglas test. Recognizing the differences between employment discrimination and consumer discrimination, the court determined that a distinct standard reflecting such differences is warranted. Id. at 872. “Employment decisions . . . are regularized and periodic, are made by supervisory personnel, and by their very nature are almost always documented. [They] leave behind a paper trail of evidence which to a greater or lesser extent will be available during discovery or otherwise to a discrimination victim.” Callwood, 98 F. Supp. 2d at 706; see Christian, 252 F.2d at 870. Therefore, in the employment context it makes sense to insist upon evidence of similarly situated applicants or employees. In the commercial establishment context, on the other hand, the clientele is “largely itinerant,” and the task of protecting similarly situated individuals outside the protected group is much more difficult. Christian, 252 F.2d at 870–71; see Callwood, 98 F. Supp. 2d at 706.
163 Callwood, 98 F. Supp. 2d at 707; see also Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir. 2001) (stating similar test for establishing a prima facie case of race discrimination in eviction from motel).
164 See Christian, 252 F.3d at 873. This language,
which makes actionable the deprivation of service, as opposed to an outright refusal of service, better comprehends the realities of commercial establishment cases in which an aggrieved plaintiff may have been asked to leave the place of business prior to completing her purchase, refused service within the establishment, or refused outright access to the establishment. It is thus in harmony with the promise of § 1981(b), which guaranties all persons equal rights in “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
Id.
165 Id. at 872. Graves notes that this test is in harmony with the purpose of § 1981, which should not be limited to protecting rights only when “violators are foolish enough to tell their victims that they are discriminating against them.” Graves, supra note 4, at 192.
166 See Lizardo v. Denny’s, Inc., 270 F.3d 94, 102 (2d Cir. 2001). In Lizardo, plaintiffs alleged that they were treated in a “markedly hostile manner” when the hostess failed to greet them and, in response to one of the plaintiff’s inquiry about the wait, said, “don’t even go there.” Id. Moreover, one of the plaintiffs was escorted out of the restaurant and shoved, and defendant’s security guards failed to protect plaintiffs in a parking lot brawl. Id. Nevertheless, the court ultimately found that, “[i]n this case, the cited instances of hostility, considered in context, did little to support an inference of discriminatory intent.” Id.
167 Amended Complaint ¶¶ 125, 126 NAACP v. Cracker Barrel Old Country Store, Inc., No. 4:01–CV–325–HLM, (N.D. Ga. filed Apr. 11, 2002). Evidence of a retailer’s “markedly hostile” conduct can support a prima facie case of discrimination without any evidence of how similarly situated persons were treated. Christian, 252 F.3d at 871.
Factors relevant to the determination of whether conduct is “markedly hostile” . . . include whether the conduct is (1) so profoundly contrary to the manifest financial interests of the merchant and/or her employees; (2) so far outside of widely-accepted business norms; and (3) so arbitrary on its face, that the conduct supports a rational inference of discrimination.
Callwood, 98 F. Supp. 2d at 708; see Christian, 252 F.3d at 871.
168 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
169 See 42 U.S.C. § 1981(a). Most CRP plaintiffs claim that defendants interfered with their right to “make and enforce contracts.” See, e.g., Shawl v. Dillard’s Inc., 17 Fed. Appx. 908, 910 (10th Cir. 2001); Chapman v. Higbee Co., 256 F.3d 416, 419 (6th Cir. 2001), vacated by 270 F.3d 297 (6th Cir. 2001); Bermudez Zenon v. Rest. Compostela, Inc., 790 F. Supp. 41, 44 (D.P.R. 1992). In a small number of cases, however, plaintiffs have alleged violations of § 1981(a)’s “equal benefits clause.” See, e.g., Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1098 (10th Cir. 2001), cert. denied, 534 U.S. 1131 (2002); Alexis v. McDonald’s Rests. of Mass., Inc., 67 F.3d 341, 346 (1st Cir. 1995); Lewis v. J.C.Penney Co., 948 F. Supp. 367, 371 (D. Del. 1996). In Haywood v. Sears, Roebuck & Co., plaintiff asserted that defendant violated § 1981(a)’s “like punishments clause.” No. 7:94–CV–106–BR2, 1996 U.S. Dist. LEXIS 11954, at *5 (E.D.N.C. July 18, 1996).
170 See 42 U.S.C. § 1981(a). The term “make and enforce contracts” is defined as encompassing “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).
171 Amended Complaint ¶¶ 10–11, Cracker Barrel Old Country Store, Inc., (No. 4:01–CV–325–HLM).
172 See, e.g., Christian, 252 F.3d at 866 (African-American shopper was removed from the Wal-Mart store and forced to leave behind her shopping cart of merchandise); Henderson v. Jewel Food Stores, Inc., No. 96 C 3666, 1996 WL 617165, at *4 (N.D. Ill. Oct. 23, 1996) (court denied defendant’s motion to dismiss plaintiff’s § 1981 claim because plaintiff was ultimately ejected from the store in handcuffs and was unable to complete his purchase, rather than merely being deterred); Shen v. A&P Food Stores, No. 93 CV 1184(FB), 1995 WL 728416, at *1 (E.D.N.Y. Nov. 21, 1995) (A&P first refused to sell apple juice to individuals of Chinese descent and later limited plaintiffs to purchasing only three bottles per person); Washington v. Duty Free Shoppers, Ltd., 710 F. Supp. 1288, 1289 (N.D. Cal. 1988) (Black shoppers who did not have airline tickets or passports were consistently prevented from entering the duty free shop, while white shoppers were regularly admitted without proof that they were traveling overseas).
173 See, e.g., Arguello v. Conoco, Inc., 207 F.3d at 805 (5th Cir. 2000) (alleging that cashier at Conoco refused to accept plaintiff’s out of state driver’s license as identification when she attempted to pay for gas with a credit card, shouted racial epithets at plaintiff while she was completing her transaction, and continued to harangue her over the store’s intercom after the plaintiff left the store); Morris v. Office Max, Inc., 89 F.3d 411, 414 (7th Cir. 1996) (alleging that they would have made a purchase had they not been stopped and questioned by police officers while they inspected time stamps).
174 See Morris, 89 F.3d at 414; see, e.g., Hampton, 247 F.3d at 1118 (plaintiff alleges that when defendant prevented plaintiff from redeeming a coupon, it interfered with a benefit or privilege of her contract with defendant); Watson v. Fraternal Order of Eagles, 915 F.2d 235, 243 (6th Cir. 1990) (denying black patrons the right to buy soft drinks by telling them to leave the premises effectively prevented them from entering into a contract); Halton v. Great Clips, Inc., 94 F. Supp. 2d 856, 869–70 (N.D. Ohio 2000) (some of plaintiffs’ claims were actionable under § 1981 insofar as they alleged discriminatory practices by defendants in three areas: application of chemical treatments, available hair styles, and pricing, because plaintiffs sought—but were denied—services at the defendant’s salon while caucasians received services and because African Americans incurred or were told of the price increase while caucasians were presumably not charged the same price); Ackerman v. Food-4-Less, No. 98–CV–1011, 1998 WL 316084, at *3 (E.D. Pa. 1998) (plaintiff may have been prevented from completing her purchase when, after she picked up a container of Spanish seasoning, defendant’s security guard grabbed her and detained her for over two hours in the middle of her grocery shopping); Henderson, 1996 WL 617165, at *4 (plaintiff prevented from completing his sales transaction when he was grabbed by a store employee as he substituted and added items to his purchase that the cashier had begun to ring up); Shen, 1995 WL 728416, at *3 (plaintiffs’ claim is cognizable where they allege that defendant refused to sell them groceries); Bermudez-Xenon, 790 F. Supp. at 43–44 (refusal to seat and serve customers falls under § 1981’s protection); Washington, 710 F. Supp. at 1289–90 (claim actionable where African-American plaintiffs—but not white customers—were not admitted into defendant’s store and therefore prevented from making purchases, unless they produced a passport or airline ticket to enter defendant’s store).
175 See Kennedy, supra note 2, at 315, 330; see, e.g., infra notes 176–181.
176 See Morris, 89 F.3d at 414. In Morris, the assistant manager summoned the police one minute after plaintiffs entered defendant’s retail store, reporting “two male blacks acting suspiciously.” Id. at 412. The Seventh Circuit Court of Appeals found that plaintiffs’ allegation that they were considering the purchase of additional items when police arrived to “check [them] out” was insufficient to state a claim under § 1981 because such loss was speculative. Id. at 414. The plaintiffs failed to show that they would have made further purchases if they had not been approached by the police. See id.
177 See Shawl v. Dillard’s, Inc., 17 Fed. Appx. 908, 912 n.3 (10th Cir. 2001) (rejecting the “implied contract with the consumer as a member of the shopping public theory”); Wesley v. Don Stein Buick, Inc., 42 F. Supp. 2d 1192, 1201 (D. Kan. 1999) (stating that recognizing a right to browse would almost nullify the contract requirement and, consequently, transform the statute into a general cause of action for all race discrimination); Lewis v. J.C. Penney Co., Inc., 948 F. Supp. 367, 371–72 (D. Del. 1996) (concluding that § 1981 does not prohibit racial discrimination against every individual who enters the premises of a commercial establishment).
178 See, e.g., Hampton, 247 F.3d at 1118 (denying plaintiff the benefit or privilege of the merchant’s implied contractual offer to let her shop in its store does not give rise to § 1981 claim); Morris, 89 F.3d at 414 (no § 1981 violation where police stopped plaintiff while he was browsing in the store, asked him for identification, asked some questions, and apologized); Arguello, 2001 WL 1442340, at *4 (denial of a proper shopping atmosphere does not, alone, state a claim under § 1981); Wesley, 42 F. Supp. 2d at 1201 (no § 1981 violation when plaintiff had nothing more than a general interest in the automobiles, was simply browsing for a potential automobile that her parents might purchase at some later date, and could not prove that she would have attempted to make a purchase if defendant had not interfered by treating her rudely and seeking personal information from her); Ackaa v. Tommy Hilfiger, Co., No. CIV.A.96–8262, 1998 WL 136522, at *5–6 (E.D. Pa. Mar. 24, 1998) (no § 1981 violation when plaintiffs were singled out for observation and mildly harassed while browsing). Kennedy argues that “[i]t is artificial to separate out those acts inimical to shopping [such as inspecting the goods displayed for sale and comparing the goods and prices] from the exchange of tender for goods at the cash register.” Kennedy, supra note 2, at 322. Most courts, however, have not acknowledged the customer’s right to “browse.” See id.
179 See Sterling v. Kazmierczak, 983 F.Supp. 1186, 1191–92 (N.D. Ill. 1997). In this case, an African-American man, who was wearing a pair of shoes he had recently purchased at Marshall Field’s, went to the defendant’s store to purchase air rifle cartridges. After being questioned and accused of shoplifting the shoes, a store security guard removed the shoes from plaintiff’s feet. Local police were summoned and plaintiff was arrested. At trial, plaintiff produced his receipt from Marshall Field’s and was found not guilty. Id. at 1192. Regarding his § 1981 claim, the court found that plaintiff did not present sufficient evidence that defendant’s actions interfered with his right to contract because
[t]here are no allegations that [plaintiff] ever found the cartridges for which he was looking and that he was prepared to buy such cartridges before he left the store. In addition, there are no allegations that [plaintiff] had the air rifle cartridges in hand when confronted by [the security guard]. The allegations simply establish that [plaintiff] was browsing about the store. The allegations in no way show that [plaintiff] suffered an actual loss of a contract interest; rather, the allegations only establish that [plaintiff] suffered a possible loss of a future contract opportunity.
Id.; see also Evans v. Holiday Inns, Inc., 951 F. Supp. 85, 90 (D. Md. 1997) (plaintiffs failed to state a claim where defendant evicted them from the motel after requesting plaintiffs to reduce the noise level in their room). Fennessy explains that it is not yet clear whether the courts of New Jersey will hold that exclusions from retail stores are unlawful under the New Jersey Law Against Discrimination. See Fennessy, supra note 42, at 606. Kennedy emphasizes plaintiffs’ legal difficulty in proving the absence of probable cause for the stop and search. Kennedy, supra note 2, at 334.
180 Chu v. Gordman’s, Inc., No. 8:01CV182, 2002 WL 802353, at *6 (D. Neb. Apr. 12, 2002).
181 See Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 854 (8th Cir. 2001) (no violation of § 1981 occurred because plaintiff was able to purchase the beef jerky before he was detained); Morris, 89 F.3d at 414 (plaintiffs who made a purchase and stayed in the store to examine other merchandise made no showing that defendant’s summoning of police to question plaintiffs interfered with their right to make further purchases or enter into retail contracts where they were not denied admittance nor asked to leave the store); Chu, 2002 WL 802353, at *6 (Korean plaintiffs’ right to contract was not violated when the store’s security manager stopped them at the door, after they paid for their purchases, and searched their shopping bags); Holmes v. Dillard Dep’t Store, Inc., No. CIV.A.99–3444, 2000 WL 1725082, at *2 (E.D. La. Nov. 17, 2000) (plaintiff suffered no contractual loss because she had finished her transaction and was exiting the store when she was asked to leave the store by a deputy); Hickerson v. Macy’s Dep’t Store, No. CIV.A.98–3170, 1999 WL 144461, at *1–2 (E.D. La. Mar. 16, 1999) (plaintiff’s right to contract was not violated because plaintiff had completed his transaction when the security guard stopped him, asked him to produce a receipt, searched his bag, and required him to return to the store because they had him “on tape” stealing a pair of jeans); Ackaa, 1998 WL 136522, at *6 (right to contract was not violated when security guards at defendant’s store followed plaintiffs around the store, accosted them, falsely accused them of shoplifting, and requested that they leave the store and not return under threat of arrest for trespassing, because plaintiffs were not prevented from entering the store, their transactions in the store were completed, and they did not express any intention to shop in the store again that day); Lewis, 948 F. Supp. at 372 (right to contract was not violated when store security guards approached plaintiff near her car in the store parking lot and asked her to return to the store so they could inspect her shopping bags); Flowers v. TJX Cos., No. 91–CV–1339, 1994 WL 382515, at *6 (N.D.N.Y. July 15, 1994) (defendant did not interfere with the formation of an implicit retail contract where plaintiffs who were accused of shoplifting and asked to leave the store had completed their retail transactions at T.J.Maxx).
182 Main, supra note 3, at 307; see Ackerman v. Food-4-Less, No. 98–CV–1011, 1998 WL 316084, at *3 (E.D. Pa. June 10, 1998).
183 Hampton, 247 F.3d at 1114–16. The Supreme Court declined to review the case.
184 Id. at 1100.
185 Id. at 1106.
186 Id. at1103–05. Referring to the comment to Restatement (Second) of Contracts § 45 (1981), in which an option or unilateral contract is defined as “an offer that does not invite a promissory acceptance,” the Tenth Circuit Court of Appeals explained that Dillard’s offered a variance of an option or unilateral contract to Ms. Hampton, and she completed the invited performance in accordance with the terms of the offer.” Id. at 1104. Restatement (Second) of Contracts § 45 provides: 1) Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tenders a beginning of it. 2) The offeror’s duty of performance under any option contract so created is conditional on completion or tender of the invited performance in accordance with the terms of the offer. Restatement (Second) of Contracts § 45 (1981).
187 Hampton, 247 F.Sd at 1106.
188 See Bagley v. Ameritech Corp., 220 F.3d 518, 521–22 (7th Cir. 2000) (plaintiff was not prevented from making a purchase when the assistant manager loudly stated that she would not help him and made an obscene gesture towards him, and plaintiff left the store without saying anything or seeking further assistance); Garrett v. Tandy Corp., 142 F. Supp. 2d 117, 119 (D. Me. 2001) (no interference with plaintiff’s § 1981 right to contract because the transaction was already complete when the Radio Shack manager accused him of stealing a computer); Thomas v. National Amusements, Inc., No. 98–71215, 1999 U.S. Dist. LEXIS 5188, at *8–9 (E.D. Mich. Feb. 24, 1999) (no contract loss where plaintiffs were not wholly denied the right to see a movie at defendant’s theater although the movie usher required minority—but not caucasian—theatergoers who possessed the wrong tickets to return to the ticket booth to exchange their tickets); Bobbitt by Bobbitt v. Rage, Inc., 19 F. Supp. 2d 512, 518 (W.D.N.C. 1998) (one group of plaintiffs failed to state a claim where they alleged that they received discourteous treatment and poor service but were not asked to leave or denied service).
189 See Bentley v. United Refining Co. of Pennsylvania, 206 F. Supp. 2d 402, 405–06 (W.D.N.Y. 2002) (summary judgment granted for defendant where service was delayed and plaintiff was treated rudely but was able to complete his transaction); Rogers v. Elliott, 135 F. Supp. 2d 1312, 1313, 1315 (N.D. Ga. 2001) (sales clerk’s use of racial epithets and physical assault of plaintiff was insufficient to violate plaintiff’s right to contract where plaintiff had already completed the transaction); Arguello v. Conoco, Inc., No. CIV.A.397C70638.H, 2001 WL 144230, at *4 (N.D. Tex. Nov 9, 2001) (no valid § 1981 claim exists where sales clerk harassed, insulted, and disparaged plaintiff due to her ethnic background but did not prevent plaintiff from completing the sales transaction and purchasing the goods she desired).
190 Hampton, 247 F.3d at 1118.
191 See supra note 169 and accompanying text.
192 See 42 U.S.C. § 1981(b) (2001).
193 See Jeffrey v. Home Depot U.S.A., Inc., 90 F. Supp. 2d 1066, 1069 (S.D. Cal. 2000) (plaintiff who purchased a deadbolt suffered no actual loss of a contract interest because he was not denied service or detained but merely delayed by the cashier’s request to search the red canvas bag that plaintiff was carrying); Bobbitt, 19 F. Supp. 2d at 514–15, 517–18 (plaintiffs’ rights were not violated when they were not denied admittance, nor refused service, nor asked to leave at any time, although they waited 10–12 minutes to be seated, and another 15 minutes for a menu—notably longer than white patrons—but were finally waited upon); Ackerman v. Food-4- Less, No. 98–CV–1011, 1998 WL 316084, at *3 (E.D. Pa. June 10, 1998) (finding plaintiff’s ability to contract would be unabridged if she could have purchased an item after her two and one half hour detention for alleged shoplifting); Harrison v. Denny’s Rest., Inc., No. C–96–0343 (PJH), 1997 WL 227963, at *4 (N.D. Cal. Apr. 24, 1997) (plaintiff did not show that Denny’s denied him service where his order was taken, he received his meal, and he was satisfied with his meal, even though service was slow); Robertson v. Burger King, Inc., 848 F. Supp. 78, 81 (E.D. La. 1994); (plaintiff who ultimately received service failed to state a claim under § 1981 because he was not denied admittance or service when Burger King employee temporarily stopped serving him to wait on white customers behind him).
194 Bentley, 206 F. Supp. 2d at 406.
195 See Hill v. Shell Oil, Co., 78 F. Supp. 2d 764, 777 (N.D. Ill. 1999) (holding that black plaintiffs who purchased gasoline stated a cause of action where defendant forced them, but not whites, to pre-pay); Bobbitt, 19 F. Supp. 2d 518–19 (requirement that plaintiffs prepay for food altered a fundamental characteristic of service and was sufficient to state a cause of action under § 1981).
196 See Hill, 78 F. Supp. 2d at 777.
197 Id. at 777 n.11; see McCaleb v. Pizza Hut of Am., Inc., 28 F. Supp. 2d 1043, 1048 (N.D. Ill. 1998); see also 42 U.S.C. § 1981(b).
198 No. 00 CIV. 2275(SHS), 2000 WL 1559019, at *5 (S.D.N.Y. Oct. 19, 2000).
199 See id. at *4; see also Buchanan v. Consolidated Stores Corp., 125 F. Supp. 2d 730, 735–36 (D. Md. 2001) (summary judgment in favor of defendant was denied where defendant instituted a no-check policy at its stores more likely to be patronized by African-American customers whereby plaintiffs were allowed to purchase the item(s) they wanted only if they complied with defendant’s special condition on plaintiffs’ right to contract); Ghaznavi v. Days Inns of Am., Inc., No. 91 CIV. 4520(MBM), 1993 WL 330477, at *4 (S.D.N.Y. Aug. 20, 1993) (plaintiff stated a valid claim in situation where hotel manager had discretion to accept alternative forms of identification but refused to do so when plaintiff attempted to check in); Harvey v. NYRAC, Inc., 813 F. Supp. 206, 208–11 (E.D.N.Y. 1993) (defendant may have arbitrarily employed a “race neutral” policy prohibiting the rental of “luxury” automobiles to Brooklyn residents for the purpose of discriminating against prospective African-American car renters); Washington v. Duty Free Shoppers, Ltd., 710 F. Supp. 1288, 1289 (N.D. Cal. 1988) (summary judgment in favor of defendant was denied where store customers who were African-Americans alleged that they were required to produce a passport or airline ticket to shop at the defendant’s store, while this requirement was not imposed on non-minority customers).
200 See Amended Complaint ¶¶ 91–102, NAACP v. Cracker Barrel Old Country Store, Inc., No. 4:01–CV–325–HLM, (N.D. Ga. filed Apr. 11, 2002).
201 See, e.g., Joseph, 2001 WL 1559019, at *5 (an African-American woman made out her prima facie claim by stating that defendant denied her entry for failing to conform with the dress code at the “Stadium Club” while her caucasian friend, who was wearing a similar tank top, was admitted); LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1375, 1379, 1383–84 (S.D. Fla. 1999) (plaintiffs who were members of a multi-racial party established a prima facie case of discrimination by alleging that the manager asked them to leave moments after they arrived at the restaurant saying: “You don’t look right together” and that they needed to leave); Franceschi v. Hyatt Corp., 747 F. Supp. 138, 140, 145 (D.P.R. 1990) (plaintiff alleging that defendant refused access to the hotel to Spanish-speaking visitors while permitting entrance to English-speaking visitors stated a valid claim under § 1981). In Berry v. South East Waffles, LLC, plaintiffs’ allegations against defendant are similar to those filed against Cracker Barrel. Second Amended Complaint ¶¶ 14–65, No. 4:01–CV–28, (E.D. Tenn. filed Feb. 15, 2002). The parties settled this lawsuit on August 6, 2002. In Berry, as African-American patrons approached the door, they noticed employees of the Waffle House closing the blinds and placing a hand-written sign on the entrance door which read “Closed due to maintenance” although there was no indication that any maintenance was being performed. The employees locked the doors before any of the African Americans could reach the front door. Plaintiffs observed that the restaurant was busy cooking for and serving a large number of caucasian customers. Waffle House employees periodically unlocked the restaurant’s doors to let caucasian patrons out. When they asked if they could enter the restaurant and be served, plaintiffs were turned away. When they asked if they could place orders and have them filled on a “to go” basis, Waffle House employees answered plaintiffs with a resounding “No!” One of the plaintiffs video-taped the events described above. Plaintiffs contacted the Police Department to dispatch an officer to the scene and to assist them with entry to the Waffle House restaurant. Police did not detain or arrest anyone during the pertinent time period, and they did nothing to enforce plaintiffs’ right of access to the premises. Id. ¶¶ 23–47.
202 Singer, supra note 31, at 1434.
203 As illustrated by Campbell incident described in Amended Complaint ¶¶ 91–102, Cracker Barrel Old Country Store, Inc., No. 4:01–CV–325–HLM.
204 See id. at ¶¶ 121–128, 137–174, 209–214.
205 See, e.g., Shawl v. Dillard’s, Inc., 17 Fed. Appx. 908, 911–12 (10th Cir. 2001) (plaintiff did not show an actual contract loss when she decided to return the next day to purchase a pair of sandals rather than completing the purchase on that day, to prevent an unpleasant salesperson from earning a commission on the sale); Bagley v. Ameritech, Corp., 220 F.3d 518, 521 (7th Cir. 2000) (holding that plaintiff did not establish a § 1981 claim for refusal of service because he decided to leave the store rather than attempting to receive service from other salespeople after the assistant manager said, “I will not serve [you]” while giving plaintiff “the finger”); Arguello v. Conoco, Inc., No. CIV.A.397CV0638–H, 2001 WL 1442340, at *3, 5 (N.D. Tex. Nov. 9, 2001) (plaintiff, who waited in line to purchase beer, observed the sales clerk harassing his daughter, then put the beer down and left the store, failed to state a claim because he did not attempt to purchase anything nor was he prevented from purchasing anything); Callwood v. Dave & Buster’s, Inc. 98 F. Supp. 2d 694, 718 (D. Md. 2000) (finding plaintiffs’ “constructive eviction” argument failed to state a claim under § 1981 because they offered no evidence that they were deprived of defendant’s services while similarly situated patrons outside the protected class were not).
206 See Amended Complaint ¶¶ 185–191, Cracker Barrel Old Country Store, Inc., No. 4:01-CV-325-HLM.
207 See Singh v. Wal-Mart Stores, Inc., No. CIV.A.98–1613, 1999 WL 374184, at *6 (recognizing a valid claim of contractual interference under § 1981 where store refused to accept an item for return or exchange); Perry v. Burger King Corp., 924 F. Supp. 548, 552 (S.D.N.Y. 1996) (denying motion to dismiss where customer finished meal and sought to use restaurant’s restroom facilities; noting that plaintiff may be “considered to have contracted for food and use of the bathroom” as benefit of contractual relationship).
208 Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1104 (10th Cir. 2001), cert. denied, 534 U.S. 1131 (2002).
209 Amended Complaint ¶¶ 184, 201, Cracker Barrel Old Country Store, Inc., No. 4:01–CV–325–HLM.
210 See id. ¶¶ 192–201.
211 See Hill v. Shell Oil Co., 78 F. Supp. 2d 764, 777 (N.D. Ill. 1999).
212 Williams v. Cloverland Farms Dairy, Inc., 78 F. Supp. 2d 479, 482–83 (D. Md. 1999).
213 Id.
214 Id. at 485.
215 Id. at 485–86.
216 See, e.g., Lizardo v. Denny’s, Inc., 270 F.3d 94, 104–05 (2d Cir. 2001) (recognizing claims of delayed service as actionable but granting summary judgment for defendant on the facts because smaller non-minority parties who were seated before African-American plaintiffs were not similarly situated); White v. Denny’s, Inc., 918 F. Supp. 1418, 1425 (D.D.C. 1996) (plaintiffs’ failure to “literally attempt to order food and drinks at Denny’s is not enough, in and of itself, to conclude that they failed to meet their prima facie burden”); Bermudez-Xenon v. Rest. Compostela, Inc., 790 F. Supp. 41, 43–44 (D.P.R. 1992) (no dismissal of plaintiffs’ claim under § 1981 where they waited three hours to be seated and served at defendant’s restaurant whereas white patrons who arrived after them were promptly provided with seats and service).
217 Callwood v. Dave and Busters, Inc., 98 F. Supp. 2d 694, 705, 709–10, 716 (D. Md. 2000) (denying defendant’s motion for summary judgment where plaintiffs experienced extraordinarily discourteous and hostile treatment from the staff and management of the restaurant when the server ignored their party, repeatedly issued warnings about the restaurant’s seating policy to members of the party in a disrespectful tone, even though plaintiffs were in compliance with the policy, and later refused to serve them). Applying its new standard of proof, the court denied defendant’s motion for summary judgment because it found that plaintiffs presented sufficient evidence that “they received services in a markedly hostile manner and in a manner which a reasonable person would find objectively unreasonable.” Id. at 709.
218 McCaleb v. Pizza Hut of Am., Inc., 28 F. Supp. 2d 1043, 1048 (N.D. Ill. 1998) (plaintiffs’ claim was not precluded since, in contrast to white customers, they were not seated, provided with utensils, or asked if they wanted to order drinks even though defendant allowed them to purchase pizza).
219 Charity v. Denny’s, Inc., No. CIV.A.98–0554, 1999 WL 544687, at *3 (E.D. La. July 26, 1999) (even though restaurant manager offered to personally serve them complimentary meals, plaintiffs’ § 1981 claim was cognizable where waiter refused to serve them due to their race and engaged in harassing and taunting conduct).
220 McCaleb, 28 F. Supp. 2d at 1048.
221 Id. In this case, plaintiffs inquired about drinks and were informed that the drink machine had been turned off. Although they ordered their pizzas for dine-in service, the pizzas were prepared in take-out boxes. The pizzas were not delivered to the table; instead a member of plaintiffs’ party had to retrieve them. Pizza Hut employees played loud music, turned lights on and off, and generally disrupted plaintiffs’ dining experience to such an extent that they left, unable to complete their meal. Id. at 1046–47.
222 Kennedy, supra note 2, at 338–39. This amendment was “intend[ed] . . . to bar all race discrimination in contractual relations.” H.R. Rep. No. 102–40, pt. 1 , at 92 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 630; H.R Rep. No. 102–40, pt. 2, at 37 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 730;(emphasis added). See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 64 (1986) (finding that Title VII’s use of the phrase “‘terms, conditions or privileges of [men and women in] employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment . . . .’”).
223 Brief of Amicus Curiae Lawyers’ Committee For Civil Rights Under Law at 6, Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091 (10th Cir. 2001) (Nos. 98–3011, 98–3261) cert. denied, 534 U.S. 1131 (2002).
224 See id.
225 Id. at 5.
226 See id.
227 See, e.g., Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1050 (8th Cir. 2002); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Swinton v. Potomac Corp., 270 F.3d 794, 806–07 (9th Cir. 2001); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 191 (4th Cir. 2001).
228 Moreover, some courts specifically reject “an expansive interpretation that § 1981 broadens the scope of civil rights and protects consumers from harassment upon entering a retail establishment.” Hampton, 247 F.3d at 1118.
229 See Singer, supra note 31, at 1434 (noting that there is no textual basis for applying the statute to some contracts but refusing to apply it to others).
230 42 U.S.C. § 1981(a)–(b) (2000) (emphasis added); see Hampton, 247 F.3d at 1104 (explaining that the list “in subsection (b) which gives examples of what might constitute the ‘making’ or ‘enforcing’ of a [sic] is intended to be illustrative rather than exhaustive”).
231 Fox v. General Motors Corp., 247 F.3d 169, 175–76 (4th Cir. 2001); see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Patterson v. McLean Credit Union, 491 U.S. 164, 180 (1989); Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 64–66 (1986). Furthermore, in cases involving the Americans with Disabilities Act and Americans with Disabilities Employment Act (ADEA), courts have easily applied the Title VII standards for hostile work environment harassment. See Fox, 247 F.3d at 176; see also Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996) (concluding that a hostile work environment claim is actionable under the ADEA because of the use of the “terms, conditions, or privileges of employment” language and “the general similarity of purpose shared by Title VII and the ADEA”).
232 491 U.S. at 180; see Fox, 247 F.3d at 175. The Patterson Court specifically held that § 1981’s application was restricted to racial discrimination in the making and enforcement of contracts, such that plaintiff’s claim of racial harassment was not actionable under § 1981. 491 U.S. at 178–80. Congress reacted by amending the statute’s language—in particular, the phrase “benefits, privileges, terms and conditions”—to be an “illustrative rather than exhaustive” list of the protected facets of the contractual relationship. H.R. Rep. No. 102–40, pt. 1, at 92 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 630; H.R. Rep. No. 102–40, pt. 2, at 37 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 730–31.
233 Following 1991 amendments to the Civil Rights Act, legal theories of recovery for intentional discrimination under § 1981 and Title VII are “substantially identical.” Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir. 1997); see Patterson, 491 U.S. at 186 (holding Title VII burden-shifting rules apply in § 1981 cases). Under either § 1981 or Title VII, a plaintiff can show a racially hostile work environment by demonstrating that the harassment was “(1) unwelcome; (2) based on race; and (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere,” and that (4) there was some basis for imposing liability on employer. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183–84 (4th Cir. 2001).
234 See Amended Complaint ¶¶ 103–120, 121–128, 137–55, 165–171, 209–214 , NAACP v. Cracker Barrel Old Country Store, Inc., No. 4:01–CV–325-HLM, (N.D. Ga. filed Apr. 11, 2002).
235 See id. ¶¶ 177–184, 192–201.
236 The standard of proof for analyzing such a claim could mirror the one articulated by the court in Callwood v. Dave & Busters, Inc,. See 98 F. Supp. 2d 694, 704–05 (D. Md. 2000). Making a slight alteration to extend the test beyond the employment situation, hostile environment harassment would be established when defendant’s conduct is sufficiently severe or pervasive to alter the terms or conditions of the contract and creates an abusive atmosphere. See supra note 150 and accompanying text.
237 Both Haydon and Kennedy remark that judges routinely dismiss consumer discrimination claims on summary judgment under Fed. R. C. P. 56. See Kennedy, supra note 2, at 330; Haydon, supra note 18, at 1231. A plaintiff’s inability to point to similarly situated whites who received better treatment frequently results in a finding that there exists no genuine issue as to any material fact. See Kennedy, supra note 2, at 330; Haydon, supra note 18, at 1231
238 See Henderson, Harris, & Williams, supra note 28.
239 See supra note 146. The purpose of the McDonnell Douglas framework requiring “the defendant to articulate a legitimate non-discriminatory reason for its action [is] to progressively narrow the inquiry in order to ‘frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.’” Fennessy, supra note 42, at 585; see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 529 (1993) (Souter, J., dissenting).
240 See Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257, 258 (4th Cir. 2001); Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 879 (6th Cir. 2001); Wells v. Burger King Corp., 40 F. Supp. 2d. 1366, 1368 (N.D. Fla. 1998).
241 In Halton v. Great Clips, Inc., defendants attempted to explain the dramatic increase in price for services primarily used by African-American customers as a valid business decision. 94 F. Supp. 2d 856, 869 (N.D. Ohio 2000). They contended that initially, the price for the service, which included a shampoo, blow dry, and thermal curl, was artificially low to attract customers and was intended to reflect the time necessary to perform the service. Id. After an the initial price for this service was set at nine dollars, however, defendants discovered that the service took between an hour and an hour and a half. Id. Given that most stylists could perform three haircuts in an hour, defendants multiplied the price of a haircut by three and charged the African-American plaintiffs twenty-seven dollars for the shampoo, blow dry, and thermal curl. Id.; see e.g., Lizardo v. Denny’s, Inc., 270 F.3d 94, 102 (2d Cir. 2001) (defendant cites plaintiffs’ confrontation with the restaurant manager as the non-discriminatory reason for ejecting the African-American plaintiffs); Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1108 (10th Cir. 2001) cert. denied, 534 U.S. 1131 (2002). (Dillard’s contends that Officer Wilson, based on the facts and circumstances, had probable cause to stop Ms. Hampton); Singh v. Wal-Mart Stores, Inc., No. CIV.A.98–1613, 1999 WL 374184, at *8 (E.D. Pa. June 10, 1999) (defendant suspected that plaintiff was engaging in a “swap” of merchandise or “fraud”); Wells v. Burger King Corp., 40 F. Supp. 2d 1366, 1368 (N.D. Fla. 1998) (defendant refused to serve plaintiffs and asked them to leave because plaintiffs were causing a disturbance in the restaurant); White v. Denny’s, Inc., 918 F. Supp. 1418, 1425–26 (D. Colo. 1996) (defendants discontinued plaintiffs’ service when one member of plaintiffs’ party loudly used profanity, yelling “bitch” across the restaurant, in response to white patron’s offensive racial comments directed to plaintiffs); Jones v. City of Boston, 738 F. Supp. 604, 605 (D. Mass. 1990) (defendant’s reason for asking plaintiff to leave the hotel based on plaintiff’s harassment of women in the bar, unruly behavior, knocking over a table, and shouting obscenities at defendants).
242 See Christian, 252 F.3d at 878 (manager testified that he wanted plaintiff removed from the store because he suspected her of shoplifting); Hampton , 247 F.3d at 1099–1100 . But see Fennessy, supra note 42, at 579, (suggesting that a mere suspicion of shoplifting may not be a sufficient legitimate, non-discriminatory reason for the retailer’s action under the New Jersey Law Against Discrimination).
243 Kennedy, supra note 2, at 331; see Fennessy, supra note 42, at 602.
Retail discrimination is often disguised . . . and it is usually more difficult to determine whether or not the exclusion [from the retail establishment] occurred on the basis of race. For example, consider a situation where the merchant suspects and excludes minority customers who, while browsing through the store, surreptitiously watched and discussed the location of the store’s security personnel. From the merchant’s perspective, these customers were excluded based upon their suspicious actions and not their race. If the minority customers were not shoplifters, however, but were simply noting to each other the common minority experience of being watched and followed by store security, then the exclusion may have been based upon race.
Fennessy, supra note 42, at 602.
244 Haydon, supra note 18, at 1232.
245 62 F. Supp. 2d 1375, 1383 (S.D. Fla. 1999). Although the court found that Denny’s satisfied its burden of production when it “proffered a variety of reasons for the conduct by its manager on January 2, 1998,” the court ultimately awarded each plaintiff $300 in compensatory damages. See id. at 1383, 1385.
246 McDonnell Douglas Corp. v. Green, 411 U.S. 793, 804 (1973).
247 Id.; see Christian , 252 F.3d at 879; Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000).
248 St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 137 (2000).
249 Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997); Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir. 1996).
250 See Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1117 (10th Cir. 2001), cert. denied, 534 U.S. 1171 (2002) (upholding an award for in the amount of $1.2 million, a most unusual result). In Clark v. Maryland Hospitality, Inc.,
Thomas and Nancy Clark, two black individuals, live within five or six miles of the Maryland Inn. On July 5, 1988, a desk clerk denied them a room, telling them that the motel did not rent to local residents. The Clarks filed a complaint with the Prince George’s County Human Relations Commission alleging racial discrimination. The commission sent two testers to the motel, one black and the other white. The desk clerk asked the black tester for identification, then told him he could not stay in the motel because he was a local resident. Although the white tester used a local address when registering, the clerk on duty rented him a room without asking for identification or questioning his reasons for staying at the motel.
No. 91–2091, 1992 WL 187297, at *1 (4th Cir. Aug. 6, 1992). The Fourth Circuit Court of Appeals affirmed the district court’s denial of defendant’s motion for judgment notwithstanding the verdict. Id. In Bentley v. United Refining Co. of Pennsylvania, the jury awarded plaintiff $5,000 in compensatory damages and $100,000 in punitive damages. 206 F. Supp. 2d 402, 403 (W.D.N.Y. 2002). Following the jury verdict for the plaintiff, however, the district court granted defendant’s motion for judgment as a matter of law finding that plaintiff was not denied service and that the six to seven minute delay he experienced did not alter a fundamental characteristic of the service to which he was entitled. Id. at 405, 406. The court found that, “[d]espite the delay, plaintiff maintained his position in line and completed his intended purchases.” Id. at 406.
251 After a three-day trial, the jury in Perry v. S.Z. Restaurant Group concluded that defendant did not discriminate against plaintiff when restaurant’s employees told him the restroom was out of order and when he was subjected to racial epithets. 45 F. Supp. 2d 272, 273 (S.D.N.Y. 1999). In Middlebrooks v. Hillcrest Foods, Inc., the jury found that African-American plaintiffs were not subjected to intentional race discrimination under § 1981 despite their presentation of direct evidence at trial of such racial discrimination. See Order, Middlebrooks v. Hillcrest Foods, Inc., at 7, No. 1:97–2411–TWT (N.D. Ga. Nov. 19, 1998); see generally Verdict, Middlebrooks v. Hillcrest Foods, Inc., No. 1:97–2411–TWT, (N.D. Ga. filed Jan 19, 1999).
252 Hampton, 247 F.3d at 1109.
253 Id.
254 See Kennedy, supra note 2, at 317.
255 See Murrel v. Ocean Mecca Hotel Inc., 262 F.3d 253, 255, 260 (4th Cir. 2001); Christian v. Wal-Mart Stores Inc., 252 F.3d 862, 864 (6th Cir. 2001); Arguello v. Conoco, Inc., 207 F.3d 803, 813 (5th Cir. 2000) Watson v. Fraternal Order of Eagles, 915 F.2d 235, 237 (6th Cir. 1990). In Chapman v. Higbee Co., the Sixth Circuit Court of Appeals initially affirmed summary judgment for the defendant, but later vacated its decision. 256 F.3d 416, 418 (6th Cir. 2001), vacated by 270 F.3d 297 (6th Cir. 2001).
256 See Lizardo v. Denny’s, Inc., 270 F.2d 94, 99 (2d Cir. 2001); Shawl v. Dillard’s, Inc., 17 Fed. Appx. 908, 909 (10th Cir. 2001); Bagley v. Ameritech Corp., 220 F.3d 518, 522 (7th Cir. 2000); Jackson v. Tyler’s Dad’s Place, 107 F.3d 923, 923 (D.C. Cir. 1996); Morris v. Office Max, Inc., 89 F.3d 411, 412, 415 (7th Cir. 1996); Alexis v. McDonald’s Rests. of Mass., Inc., 67 F.3d 341, 354 (1st Cir. 1995); Bray v. Hebble, 976 F.2d 45, 45 (D.C. Cir. 1992); Perry v. Command Performance, 945 F.2d 395, 395 (3d Cir. 1991).
257 Charity v. Denny’s, Inc., No. CIV.A.98–0554, 1999 WL 544687, at *5 (E.D. La. 1999). Racial justice cannot be attained absent recognition of the social significance of race. Whites’ increased color-conscious attention to black perspectives and experience is a crucial ingredient in the effort to eradicate the difference race has made in this society. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060, 1113–25 (1991). Any attempt to eliminate the unfair treatment that shoppers of color encounter in the marketplace requires a thorough and objective examination of the phenomenon of CRP. See Austin, supra note 4, at 173; Siegelman, supra note 5, at 86–88.
258 Paul R. Mullins, Race and Affluence 47 (1999); see Kennedy, supra note 2, at 284.
259 Testing by the Equal Rights Center in Washington, D.C. revealed that consumer racism exists in cyberspace too. See generally Complaint, Lake v. Kozmo.com, Inc., No. 1:00CV00815 (D.D.C. filed Apr. 13, 2000). In that case, the (now defunct) online company was accused of racial redlining of predominantly African-American neighborhoods. See id. ¶ 1. That case closed on August 30, 2000.
260 As an 18 year old female resident of a Harlem housing project indicated: “Some white people are very rude. . . . All black females and boys are treated the same—bad—when they go into a white store.” Don Terry, Holding on to Dreams Amid Harlem’s Reality, NY Times, Feb. 5, 1991, at A1, B4; see Austin, supra note 4, at 149. “Even the youngest black consumers are in for a good bit of distrust.” Austin, supra note 4, at 149.
261 The courts’ attitude is reminiscent of their treatment of sexual harassment in employment 30 years ago. See J. Ralph Lindgren & Nadine Taub, The Law of Sex Discrimination 169–70 (1989).