[*PG1]SHOPPING WHILE BLACK: APPLYING 42 U.S.C. § 1981 TO CASES OF CONSUMER RACIAL PROFILING
Abstract: This Article describes the practice of Consumer Racial Pro-filing (CRP) by attempting to quantify it and to identify its causes and its effects. The author presents the case against Cracker Barrel Old Country Stores to illustrate the nature of modern-day consumer dis-crimination. The Article identifies the applicable laws and assesses the likelihood that plaintiffs will prevail under each theory. Concluding that § 1981 of the Civil Rights Act of 1866 offers CRP plaintiffs the best chance for recovery, the Article includes an analysis of the § 1981 claims against Cracker Barrel based on the case law developed since 1990. Noting the reasons why few CRP plaintiffs succeeded in cases of consumer harassment, the Article concludes that the federal courts must construe the statute more broadly to ensure, as set forth in a piece of civil rights legislation from 1866, that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man.
In July 1999, Mr. and Ms. Pilson, both African Americans, visited the Suwanee, Georgia Cracker Barrel with four friends. Once they were seated, they waited approximately forty-five minutes for service, at which point Mr. Pilson complained to the manager. While waiting, they noticed that white customers who had arrived after them were already being served their meals. After Mr. Pilson complained, a white server, Sandy, came to their table and took the partys food and drink orders. The Pilsons and their friends waited an additional forty-five minutes for their food to arrive. After they received their food, Mr. Pilson asked Sandy for more napkins. In response, without speaking, [*PG2]Sandy threw the napkins onto their table. Shortly thereafter, Sandy walked by the Pilsons table with a tray of water and dropped a glass, soaking Mrs. Pilson and one of her friends. She said nothing and kept walking.1 Was this poor treatment aimed at the Pilsons because they are black?
White Americans are largely unaware of their privileged status in the marketplace. Most of the time, white consumers can run errands, shop, dine out, and take in a show with the expectation of at least minimally appropriate service in the establishments where they spend their money. However, African-American consumers patronage and money are somehow regarded as less valuable than that of the white consumer.2 In fact, shopping while black involves some of the same risks associated with the better-known phenomenon of driving while black.3 Shoppers of color are viewed with suspicion and, as a result, [*PG3]they are more likely to be watched, followed, harassed, and even denied service in the course of their daily roles as consumers.4
The issue of racial profiling in retail stores gained national attention during the 1990s following two ABC television broadcasts (True Colors5 on PrimeTime Live and an ABC News 20/20 investigative report)6 and some highly-publicized lawsuits involving well-known establishments such as Eddie Bauer,7 Dillards Department Stores,8 and Dennys Restaurants.9
[*PG4] Consumer Racial Profiling (CRP)10 is defined as any type of differential treatment of consumers in the marketplace based on race or ethnicity that constitutes a denial or degradation in the product or service offered to the consumer.11 In a retail environment, CRP can take many forms, ranging from overt or outright confrontation to very subtle differences in treatment, often manifested in forms of harassment.12 Outright confrontation includes verbal attacks, such as shouting racial epithets,13 and physical attacks, such as removing customers from the store.14 Customer harassment includes slow or rude service, required pre-payment, surveillance, searches of belongings,15 and neglect, such as refusing to serve African-American customers.16
[*PG5] This Article examines the phenomenon of Consumer Racial Profiling through a detailed case study of recent litigation against Cracker Barrel Old Country Stores. Part I discusses the prevalence of CRP and discusses some of its causes and consequences. Part II briefly reviews various laws, including § 1981 of the Civil Rights Act of 1866, that may provide redress to CRP plaintiffs, like the Pilsons. Part III considers a probable judicial approach to plaintiffs claims against Cracker Barrel Old Country Stores under § 1981 of the Civil Rights Act of 1866. The Article concludes that a narrow construction of the statute is inconsistent with § 1981s plain language and inimical to its goals. Rather, a broad interpretation of the statute, one that prohibits racial harassment, must be adopted to achieve equality in the marketplace.
The social revolution of the 1960s fostered an increased awareness of the black experience in the United States. It cannot be disputed that significant efforts have been made since then to eradicate overt discrimination in most sectors of American society. Nevertheless, a pernicious breed of racism persists. Today, discriminatory conduct masquerades as legitimate business practice. Perhaps more damaging to the victims psyche, subtle racial profiling defies detection and remains largely unchecked.
Anecdotal evidence reveals that CRP in the retail sector is alive and well at the beginning of the twenty-first century.17 There can hardly be a black person in America who has not been denied entry to a store, closely watched, snubbed, questioned about her or his ability to pay for an item, or stopped and detained for shoplifting.18
[*PG6] While there are no reliable data to confirm the regularity of consumer discrimination, a number of studies19 provide some insight into the frequency with which African Americans experience this phenomenon. Although studies that rely on consumer self-reports admittedly fall short as exact measures, such surveys have some value in gauging the frequency of discrimination.20 In 1997 a Gallup study asked African Americans whether they had encountered discrimination in the last 30 days.21 Of those surveyed, 45% had suffered at least one discriminatory experience, 30% said they had experienced discrimination while shopping, and 21% encountered discrimination while dining out (defined to include visiting bars, theaters, and other entertainment).22
Economist Peter Siegelman estimates from survey evidence that in everyday transactions, such as dining out and shopping, the probability of discrimination in any given restaurant visit or shopping trip appears to be roughly one to five percent.23 Siegleman further qualifies this statistic as follows:
Despite the relatively low probability of encountering discrimination on any given shopping trip or restaurant visit, the frequency with which any individual experiences discriminatory treatment is relatively high: 10 to 30 percent of blacks report one or more discriminatory experience in a given month. This apparent paradox results from the fact that individuals do a lot of shopping and restaurant dining, so even though discrimination is relatively unlikely on any given trip, it is almost certain to occur if enough trips are taken.24
Professors Carol M. Motley of Howard University and Thomas L. Ainscough of the University of Wisconsin-Whitewater conducted a field [*PG7]audit study and found that in the retail industry, African Americans wait longer for customer service than whites of the same gender.25
Furthermore, a survey of 1,000 households revealed that African Americans are significantly more likely than white Americans to believe that there is racial discrimination in the marketplace.26 Of those surveyed, 86% of blacks, compared to only 34% of whites, disagreed with the statement that all customers are treated the same in retail stores without regard to race.27
Lastly, judicial opinions contribute to an understanding of the scope of the problem of marketplace discrimination against African Americans.28 The contribution is minimal, however, because the complaints filed are a tiny and nonrandom fraction of actual consumer discrimination.29 Moreover, the cases that reach trial are a small and unrepresentative sample of the complaints filed.30 Therefore, while they serve as an indicator, judicial opinions are similarly inexact in generating data on racial discrimination in the marketplace.
Despite the lack of precise data, there is a consensus among scholars that CRP is a pervasive fact-of-life for people of color in the United States today.31 While efforts to level the playing field in the marketplace have been long neglected, the past decade marks a heightened focus on CRP by both scholars and commentators. In[*PG8]deed, confronting consumer discrimination is perhaps the last frontier in dismantling traditional racial imbalances in our society.
The literature suggests that overt and subconscious racism are the two primary causes of CRP. Several commentators identify overt racism as one of the fundamental reasons for which retailers discriminate against African-American customers.32 Merchants operating under an animus-based theory treat African Americans differently because they dislike or even hate them.33 White retailers may also wish to keep blacks in their place.34
On the other hand, some statistical theories suggest that overt disparate treatment simply arises from a retailers desire to maximize profits and minimize costs, and does not reflect animus towards a particular group.35 A retailer who engages in [r]evenue-based statistical [*PG9]discrimination makes a presumption about the potential revenue he or she may receive from different types of customers and acts accordingly.36 For example, some merchants cater to the discriminatory preferences of customers who may . . . be willing to pay a premium at exclusive restaurants, hotels, or clubs to exclude blacks.37 Cost-based statistical discrimination occurs when a merchant assesses the risks imposed by certain types of consumers.38 In other words, some merchants target black shoppers because they perceive them to be shoplifters39 or not creditworthy.40
Although much more difficult to identify and define, it is likely that many instances of CRP are based on subconscious racism.41 [*PG10]Unwittingly, some retailers make assumptions about their black customers based on stereotypes relating to the propensity of African Americans to commit crimes and their inability to pay for goods.42 Discrimination in modern society, frequently covert, unintended, and so often fueled by ignorance and mistrust rather than by a conscious racist motive, is a much more complex phenomenon than the intentional model suggests.43
The subconscious nature of modern-day racism creates an exceptional barrier to proving discrimination since few plaintiffs can meet the challenge of showing that a retailers non-overt behavior was intentional discrimination.44
CRP victims suffer economic harms in the form of opportunity costs,45 increased search costs, and diminished shopping opportunities.46 If shoppers of color pay the same prices and receive less in the [*PG11]way of service or merchandise, they are cheated.47 In addition, these customers may pay a premium for service in those shops that hold themselves out as being more willing to deal with shoppers of color.48
Most blacks compensate by proving themselves to be worthy shoppers, i.e., they sell themselves in order to be sold to. They dress up to go shopping in the hope that their appearance will convey the fact that they are both entitled to browse and capable of paying for any item they put their hands on. Some folks flash their credit cards or engage the salesperson in conversation designed to reveal the shoppers class position or sophistication regarding the product. Others will buy expensive goods they do not really want just to prove that they have been misjudged by a salesclerk.49
Moreover, victims of CRP bear a psychological burden as a result of overt and subconscious discrimination. The repetitive nature of everyday consumer discrimination has a cumulative debilitating effect over the course of a persons lifetime.50 Specifically, victims experience an erosion in their self-confidence,51 as well as physical consequences such as stress-related illnesses.52 The exclusion and alienation that targeted individuals experience result not only in individual harm but in societal harm. 53 Frustrated by reminders that they do not belong, some black youths further distance themselves from the society that rejects them through deviant behavior such as shoplifting.
If CRP occurs so frequently and if the costs associated with CRP are so great, why arent more consumers of color seeking redress through the courts?54 Consumers do not seek redress primarily because it is very difficult to determine whether retailers are engaging in CRP.55 Should a black nightclub patron believe a doorman who tells her the club is closed for a private party? Should a restaurant patron dismiss poor service as nothing more than incompetence?56 Many reasons unrelated to the customers race, such as the sales clerks mood or incompetence, can explain poor service in a retail setting.57 Making this determination is made even more difficult by the fact that racism today tends to be covert. Therefore, shoppers of color can never be certain whether the rude treatment or poor service they receive is due to their race.58 Sociological data indicates that middle-class blacks often evaluate a situation carefully before judging it discriminatory and taking additional action.59 Recent research in the [*PG13]field of psychology demonstrates that stigmatized people attribute their failure to discrimination only when they are virtually certain that they have been discriminated against.60
Similarly, the transitory nature of most retail transactions makes it difficult to discern whether retailers are engaging in CRP.61 In many instances, the interaction is brief and few words are exchanged between sales-clerk and customer. Most significantly, from a legal perspective, few victims of CRP have the opportunity to observe the sales-clerks treatment of similarly-situated white customers. Absent this comparison, it is nearly impossible to isolate the customers race as the motivating factor among a multitude of explanations for following, harassing, or denying service to the customer.62
[*PG14] Even in cases where it is obvious that an African-American customer was treated differently than a white counterpart, many victims of consumer discrimination are discouraged from bringing suit due to the financial and emotional costs involved in litigation and the inadequacy or uncertainty of relief awarded in these cases.63 Proving discrimination can be a challenge, given that plaintiffs are typically alone or only accompanied by close friends or relatives.64 Thus, there are rarely objective witnesses to CRP.65
Furthermore, potential plaintiffs may believe isolated incidents of CRP are not important enough to justify taking action.66The perception that CRP is insignificant may be caused, in part, by the federal courts failure to acknowledge that racial discrimination still exists in American society as a whole67 and in consumer settings in particular.68 In large measure, the federal courts have not credited CRP plaintiffs perception of events.69 They have imposed heightened pleading requirements on CRP plaintiffs, increased their evidentiary burdens, and require[d] progressively higher culpability levels of civil rights defendants before affording a federal remedy.70 Given the restricted [*PG15]reading of the law, it is not surprising that litigation is rarely employed in combating CRP.71
Nonetheless, some cases of CRP do move toward litigation, as with the case against Cracker Barrel Old Country Stores, illustrated by the Pilson incident at the beginning of this Article.72 Forty years ago, people of color were greatly restricted in their access to retail establishments. Modern retailers, recognizing that outright refusal to serve is illegal, resort to harassing non-white customers in a variety of more subtle ways.73 Although plaintiffs who were denied entry have been somewhat successful in their claims against retailers and restauranteurs, a narrow reading of § 1981 of the Civil Rights Act of 1866 (§ 1981) has prevented victims of harassment from fully presenting the merits of their claims to a fact-finder. Analyzing the case against Cracker Barrel Old Country Stores will demonstrate the need for the federal courts to interpret the statute broadly in the context of marketplace discrimination.
The plaintiffs in this lawsuit are the National Association for the Advancement of Colored People (NAACP) and forty-two African-American, West Indian-American, and white individuals who were customers of Cracker Barrel Old Country Store.74 Cracker Barrel, a Georgia corporation, owns and operates a chain of approximately 450 full service, country store restaurants, which are located in approximately 41 states, primarily in the Southeast, Midwest, mid-Atlantic, and Southwest United States.75
[*PG16] Plaintiffs allege that they suffered racial discrimination while attempting to patronize Cracker Barrel restaurants.76 Specifically, plaintiffs claim that, on the basis of race or color, Cracker Barrel denied, or effectively denied, service to African-American customers and their non-African-American associates; seated African-American customers and their non-African-American associates in a segregated area, often in the smoking section of the restaurant; allowed white servers to refuse service to African-American customers and their non-African-American associates; and required African-American customers and their non-African-American associates to wait longer to be seated or served than white customers not in the company of African Americans.77 An impressive number of employee and customer witnesses corroborate plaintiffs claims of discrimination at Cracker Barrel restaurants in 25 states.78 Some of the witnesses observed Cracker Barrel employees forcing African-American customers to pay for their meals before being served and serving African-American customers food from a garbage can.79
Plaintiffs allege that Cracker Barrel denied them the same right to make and enforce contracts that is enjoyed by white citizens of the United States, in violation of § 1981. They also claim that Cracker Barrel denied them the full and equal enjoyment of their goods, services, facilities, privileges, advantages, and accommodations on the basis of race, in violation of Title II of the Civil Rights Act of 1964.80 Plaintiffs seek $100 million in damages as well as a court order barring Cracker Barrel from engaging in future discriminatory conduct toward non-white customers.81
While a number of laws address the issue of race-based consumer discrimination, racial profiling in the retail setting is not clearly defined in civil rights law.82 Currently, CRP plaintiffs must pick and choose from an assortment of claims83 that often provide inadequate redress. Causes of action based on common law, state law, and federal law offer the Cracker Barrel plaintiffs only limited hope of obtaining just compensation for the harms they suffered. For a number of reasons outlined below, federal statutory relief under § 1981 affords CRP victims the greatest likelihood of prevailing against most retailers. However, the courts narrow construction of the statute has undermined its efficacy in combating the phenomenon of consumer discrimination.
In general, common law claims do not allow plaintiffs to express the true nature of the harm they experienced.84 Although these causes of action provide some measure of relief, they prevent the racial element of the retailers conduct from being exposed. As a result, common law claims are imperfect vehicles for achieving just results.85
Some CRP plaintiffs relythough seldom successfullyon a number of tort law claims.86 A typical tort law claim arises when retail[*PG18]ers detain customers on suspicion of shoplifting. Under such circumstances, plaintiffs routinely sue the retailer for false imprisonment and/or assault and battery.87 These plaintiffs, however, seldom prevail because merchant detention statutes allow storeowners to protect their goods by detaining and searching in a reasonable manner shoppers reasonably suspected of shoplifting.88 Retailers usually defend their conduct toward customers of color by presenting objective evidence of shoplifter profiles . . . .89 In the Cracker Barrel case, plaintiffs do not allege facts that give rise to tort claims of false imprisonment or assault and battery; therefore, this avenue is unavailable to them.
Contract law is another potential common law basis for a CRP claim. Professor Neil Williams highlights two federal opinions from Maine that strongly suggest that race discrimination is inconsistent with the common law contractual requirements of good faith and fair dealing.90 Professor Williams contends that the survival of racial discrimination in contract law advances the belief that private discrimination is morally acceptable.91 He advocates changes in contract law that would reflect contemporary societys disdain for racial discrimination by prohibiting discrimination in the formation, performance, enforcement, or termination of a contract.92 For now, however, it would be impractical for the Pilsons and other CRP victims to bring a claim under contract law because it is unclear that the law will evolve [*PG19]to incorporate a proscription against racial discrimination into the duty of good faith and fair dealing. Moreover, even if such a change occurs, only a subset of CRP plaintiffs would benefit from bringing claims under contract law, because customers who were merely browsing in the store could arguably be characterized as not yet engaged in the formation, performance, enforcement, or termination of a contract.
A plaintiff could also bring a CRP claim based on property law, which historically protected customers in situations where the merchant violated the common law duty to serve the public. Under the eighteenth and nineteenth century duty to serve doctrine, owners of any commercial property that was held open to the public had a duty to serve all patrons.93 Since then, however, the common law rule has mutated so that it currently immunizes most businesses, except innkeepers and common carriers, from the duty to serve.94 As a result, property law is ineffective in protecting plaintiffs from racial discrimination in retail settings. Instead, most merchants can legally deny individuals access to their premises without justification. In his treatise, Professor Singer asserts that the history of public accommodations law is the history of race relations.95 He demonstrates that a merchants modern power to exclude actually evolved in response to African Americans gaining the right of access to public accommodations.96 Thus, one discriminatory rule of law was overcome, and another took its place. Consequently, for the Pilsons and the other [*PG20]plaintiffs, the common law duty to serve offers no recourse against Cracker Barrel.
Each of the fifty states and the District of Columbia has public accommodations statutes, but the protection they provide varies tremendously in terms of the individuals and the establishments that are covered.97 Some states statutes are drafted very broadly,98 whereas other states have no statutes prohibiting race-based discrimination in retail stores.99 State public accommodations statutes are under-utilized, and consequently, they are criticized as ineffective. The statutes are infrequently employed because victims alleging CRP cannot file complaints at the local police department or municipal court.100 Rather, complaints are referred to state civil rights agencies, where most are conciliated so that issues do not reach the courts101 and where the remedies provided by law are insubstantial.102 Consequently, CRP plaintiffs like the Pilsons do not typically rely on state public accommodations laws.
Another possible avenue for CRP plaintiffs is to bring a claim pursuant to statutes, enacted in some states, that mimic the Federal Trade Commission Act (FTC Act).103 These laws prohibit unfair or deceptive business practices.104 A business practice is unfair if it [*PG21]causes, or is likely to cause, substantial consumer injury that a consumer could not reasonably avoid and that is not outweighed by any countervailing benefits to consumers or competition.105 Deceptive practices involve acts such as false representations, misleading price claims, or sales of dangerous or systematically defective products or services without adequate disclosure.106 Although few CRP cases give rise to claims brought under little FTC Acts, the following example illustrates the application of Tennessees Consumer Protection statute in a consumer discrimination case.
In Berry v. South East Waffles, L.L.C., a group of African Americans brought suit under Tennessees Consumer Protection Act of 1977,107 alleging that defendant violated the Act when Waffle House employees closed the restaurants doors to prevent African-American patrons from entering.108 According to the complaint, defendants engaged in unfair or deceptive acts, violating T.C.A. § 4718104 (10), (14), and (27), by advertising goods or services for sale 24 hours a day, 365 days a year, including Thanksgiving and Christmas, but failing to disclose a limitation of quantity.109 Unlike these fortunate plaintiffs, most individuals, including the Pilsons, cannot articulate a cause of action under consumer protection statutes when a merchant discriminates against them on the basis of their race.
Two federal civil rights statutes enable CRP plaintiffs to obtain injunctive or compensatory relief in certain cases. Although flawed, [*PG22]these statutes are more effective than common law remedies or state statutes in addressing the true nature of the harm suffered when consumers are treated unjustly in the marketplace. In 1964, racial discrimination continued to plague American society, even though such discrimination had been formally prohibited since 1866. This provided an impetus for Congress to pass a modern civil rights act.
The explicit purpose110 of Title II of the Civil Rights Act of 1964111 was to make it possible to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.112 Congress enacted the law pursuant to its power under the Commerce Clause to regulate commerce among the several states.113
Title II states that: All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.114 Legal commen[*PG23]tary and litigation generated by Title II usually focus on what types of establishments are covered.115 The allegations against Cracker Barrel fall within Title IIs ambit because restaurants are explicitly included in the statutes list of public accommodations.116 Notably missing from the list of covered entities, however, are retail stores.117 Senator Hubert Humphrey, a leading proponent of the Civil Rights Act, explained that retail establishments were not covered because legislators only intended to address the most urgent problems.118 Covered entities included only those places where exclusion or segregation typically occurred, and arguably, retail establishments were not notorious for such practices.119
Arguments have been formulated to include retail stores among the covered places of public accommodation. For example, commen[*PG24]tators contend that the list is illustrative rather than exhaustive and that the list could be interpreted broadly in light of subsequent public accommodations statutes and current public policies.120 The statute, however, clearly does not include retail establishments in the list of covered entities,121 and the courts have refused to expand the statutes literal definition.122 As a result, protection under Title II is available only to those plaintiffs who were discriminated against in certain types of establishments. While the Pilsons, whose allegations of discrimination are leveled against a restaurant, may benefit from Title IIs protection, many other CRP victims cannot similarly depend on this statute as a remedy for the discrimination they have endured.
In addition, the statutes notification requirement precludes some plaintiffs from obtaining relief under Title II. While plaintiffs need not exhaust their administrative remedies, they must notify the [*PG25]appropriate state or local agency of the alleged discriminatory conduct prior to filing suit.123 Courts typically dismiss claims for failure to meet the notification requirement.124 In a case of first impression, however, a federal district court in Florida made an exception to the rule and ordered Dominos Pizza to deliver food to residents of American Beach, a community where the population is approximately 95 percent African-American.125 The court held that the Title II plaintiffs claim could proceed despite their failure to notify the Florida Commission on Human Relations (FCHR) because the FCHR provided no mechanism for obtaining the immediate relief they sought (a preliminary injunction).126
Title IIs applicability is further limited in terms of the remedies it affords. For example, 42 U.S.C. § 2000a only permits the issuance of an injunction or declaratory relief.127 The inadequacy of such relief has prompted some commentators to argue that the statutes utility [*PG26]would increase if amended to provide for compensatory damages.128 Plaintiffs would have greater incentive to pursue their claims against merchants if monetary damages were available to them. Their failure to litigate CRP claims denies plaintiffs potential reliefhowever minimalas well as the opportunity to expose prohibited conduct to the public.
Congress enacted the Civil Rights Act of 1866129 to ensure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white . . . .130 According to scholar Barry Sullivan, the 1866 Congress was moved by testimony concerning the means by which private individuals continued to deprive the recently freed slaves of their freedom after the Civil War.131 The cruel discriminatory conduct included physical violence, price fixing, lifetime contracts, and exorbitant rent and food charges that were equivalent to any wages the former slaves might earn.132
The language of the Civil Rights Act of 1866 provides some protection from discrimination for shoppers of color. Section 1981 describes the right to contract and § 1982 describes the right to purchase personal property. Although the federal courts routinely acknowledge that sections 1981 and 1982 must be construed broadly in accord with their remedial nature,133 courts nevertheless unduly [*PG27]restrict their interpretations of § 1981, resulting in the dismissal of many plaintiffs claims before the presentation of evidence.134
Section 1981 of the statute provides that:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts,135 to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
For purposes of this section, the term make and enforce contracts includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
The rights protected by this section are protected against impairment by non-governmental discrimination and impairment under color of State law.136
The text of § 1982 reads as follows: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by [*PG28]white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.137
Courts interpret sections 1981 and 1982 in much the same way.138 While both sections offer potential relief for victims of CRP, legal scholar Kennedy contends that § 1982 is usually not well-suited to retail discrimination claims.139 Its application is limited insofar as courts seldom find that retailers engaged in conduct that completely prohibited African-American customers from purchasing products.140 Giving short shrift to their analyses of § 1982 claims, courts typically grant a defendants motion for summary judgment on a plaintiffs § 1982 claim for the same reason it granted the motion on the § 1981 claim.141 Although some CRP plaintiffs bring both sections 1981 and 1982 claims, a majority rely primarily on § 1981.142 Despite its limitations, described in detail below, § 1981 offers victims of consumer discrimination their best hope for recovery under the law.
To state a claim in the making or enforcing of a contract under § 1981, a preponderance of the evidence must prove143 that: (1) the [*PG29]plaintiff is a member of a racial minority; (2) defendants intentionally discriminated against plaintiff on the basis of race;144 and (3) the discrimination was directed toward one or more of the activities protected by the statute.145
The burden of production then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions.146 To prevail, the plaintiff must prove by a preponderance of the evidence that [*PG30]the defendants proffered reason is not its true reason, but merely a pretext for discrimination.147
If the plaintiffs in the Cracker Barrel case can demonstrate that they are African Americans, West Indian-Americans, and white Americans who associated with African Americans, as alleged in their complaint, they can satisfy the first prong of their prima facie claim under § 1981.148 It is well-settled that both whites and racial minorities may bring an action pursuant to § 1981 and that a claim of discrimination based on an interracial relationship or association is actionable under § 1981.149
The second prong on the plaintiffs prima facie case, discriminatory intent, may be established directly or indirectly. Direct evidence is evidence that, if believed, proves the existence of discrimination without inference or presumption.150 In both retail and non-retail contexts, direct proof of intentional discrimination has been obtained [*PG31]through the use of testers, individuals who act as prospective customers for the purpose of collecting evidence of discriminatory conduct.151
Indirect evidence of discriminatory intent is circumstantial evidence from which racial motivation can be inferred.152 The facts that give rise to CRP cases generally are not amenable to direct proof of intentional racial discrimination.153 Rather, they often resemble the fact-pattern described in the Introduction. In such a situation, there is no direct evidence of intentional race discrimination. The Pilsons will be required to present circumstantial evidence to establish that the slow service and rude treatment they received while dining at Cracker Barrel was based on their race and not on other factors. Although a plaintiff may easily convince a jury that he was treated discourteously, [*PG32]it is much more difficult to prove the motivation that gave rise to the poor treatment.154 Unlike most CRP plaintiffs, Mr. and Mrs. Pilson can present evidence that Cracker Barrel provided prompt service to similarly-situated white customers. Such evidence establishes a convincing claim of discrimination.155
Other plaintiffs may be able to satisfy this prong of their prima facie cases by presenting sufficient evidence that Cracker Barrel denied them entry to the restaurant while white customers were allowed to enter and receive service,156 and/or that Cracker Barrel seated plaintiffs in segregated sections of the restaurant on the basis of their [*PG33]race.157 Although a court may find such comparative evidence compelling, courts may also reject plaintiffs circumstantial evidence as insufficient to prove intent of discrimination. In the retail setting, the comparison will never involve precisely the same set of . . . [conduct] occurring over the same period of time and under the same sets of circumstances.158 A fact-finder may believe Cracker Barrels contention that the treatment these customers received was based on reasons [*PG34]other than intentional discrimination.159 For example, the defendant may claim that the number of people in a party, whether children are in the party, preference given to regular customers, or the amount and types of food and beverages ordered accounted for the disparate treatment.160 As discussed below in Part III.C, courts are reluctant to find that a merchants actions were motivated by racial animus even in cases where disparate treatment is accompanied by racial epithets.
Acknowledging the near-impossibility of proving differential treatment in the market setting,161 the Sixth Circuit Court of Appeals recently adopted a new prima facie standard for § 1981 plaintiffs who allege racial discrimination in the marketplace.162 Under the new [*PG35]standard, first articulated by a federal district court in Callwood v. Dave & Busters, Inc.,163 plaintiffs have the option of proving that they were deprived of services while similarly situated persons outside the protected class were not,164 and/or that they received services in a markedly hostile manner and in a manner that a reasonable person would find objectively discriminatory.165
Under this new Sixth Circuit Court of Appeals standard, more plaintiffs can successfully present a prima facie case of consumer discrimination.166 For example, the Cracker Barrel plaintiffs may be able to convince the fact-finder that they received services in a markedly hostile manner when a Cracker Barrel employee, without speaking, threw napkins onto their table as she walked by and dropped a glass of water, unapologetically splashing Mrs. Pilson and one of her friends.167 These facts arguably create the presumption of an intent to [*PG36]discriminate because, without explanation, these acts are more likely than not based on race.168
The third prong of the prima facie case requires plaintiffs to show that the discrimination they experienced was directed toward one or more of the activities protected by the statute.169 In this case, plaintiffs allege that Cracker Barrel denied them the right to make and enforce contracts on the same basis as white citizens170 when Cracker Barrel refused to serve them, provided them with inferior service, and seated them in segregated sections, along with all or most of the restaurants African-American customers and their non-African-American associates.171
The majority of consumer discrimination cases that have been pursued involved conduct that prevented the formation of the contract,172 as opposed to conduct that affected the nature or quality of [*PG37]the contractual relationship.173 Contrary to its express language and its legislative history, courts routinely dismiss § 1981 claims where defendants behavior degradesbut does not completely denythe goods or services plaintiffs sought to purchase.174 For example, many courts find no interference with making and enforcing a contractand thus typically dismiss claimswhere store clerks or security guards harass customers by stopping them shortly after they enter the store or after they complete a purchase.175
[*PG38] In cases where shoppers are accosted while browsing, many courts characterize the shoppers harm as an interference with their prospective contractual relations rather than as an actual contractual loss.176 The rationale supporting these holdings is that no general implied contract exists under which shoppers have the right to browse in merchants stores.177 Therefore, no contract interest is at stake when a customers shopping experience is interrupted.178 Even when the store ejects a customer from the premises, courts find no infringement of a plaintiffs right to make and enforce contracts.179
[*PG39] Likewise, courts reason that once the purchase is completed, no contractual relationship remains between retailer and shopper.180 Thus, according to this reasoning, violation of § 1981 can occur only during the short period of time when a shopper actually attempts to make a purchase. Therefore, harassing conduct that occurs after this point does not interfere with the individuals right to contract under § 1981.181 If store employees or other agents acted just moments ear[*PG40]lier, howeverduring a price-check, an exchange of cash, pending credit card authorization, writing of the checkthen a viable § 1981 claim would exist . . . .182
A distinguishing twist in the facts of the notorious Dillard Department Store case allowed the Tenth Circuit Court of Appeals to uphold a $1.2 million jury award ($1.1 million in punitive damages) on the basis of harassment that occurred after the Plaintiff, Ms. Hampton, had made her purchases.183 The stop and ensuing search of Ms. Hamptons belongings occurred after she had paid for her merchandise and as she attempted to redeem a coupon for a fragrance sample given to her by the sales associate.184 The jury concluded that when the security officer detained her, the contractual relationship between Ms. Hampton and Dillards had not ceased because Ms. Hampton received a coupon for a fragrance sample as a benefit of her purchase.185 The Tenth Circuit Court of Appeals agreed that the store had a contractual duty to allow Ms. Hampton to redeem the coupon.186 Preventing her from doing so amounted to a violation of her right to make and enforce contracts.187
Even if non-white customers are ultimately allowed to complete the transaction (i.e., contract formation is achieved), a number of courts have concluded that they must endure harassment in the form of substandard service188 and rude behavior (including overt confron[*PG41]tation through the use of racial epithets) at the hands of sales clerks.189 Articulating the general rule regarding poor service, the Tenth Circuit Court of Appeals explained that there must have been interference with a contract beyond the mere expectation of being treated without discrimination while shopping.190 As previously mentioned, several courts have specifically rejected the notion that consumers of all races have the right to a harassment-free shopping experience.191
Similarly, although the right to make and enforce contracts includes the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship,192 courts typically do not interpret this right as protecting minority shoppers against harassment manifested through a delay in service.193 For example, when a sales clerk [*PG42]yelled at an African-American customer and told him to go back to the end of the line after he had waited in line for fifteen minutes, the court repeated the now-familiar refrain that mere delay, even coupled with discourteous treatment, poor service, or racial animus, is insufficient to sustain a § 1981 claim.194
Nevertheless, there are exceptions to the general rule that a § 1981 claim must fail if the plaintiff ultimately managed to complete his or her sales transaction (i.e., form a contract) with the defendant. Such an exception arises in cases where retailers imposed additional conditions on plaintiffs that were not imposed on white customers. For example, in some cases, defendants required African-American customers to pre-pay for their purchases, whereas white customers were not required to do so.195 One court reasoned that the imposition of an additional condition adversely affected the basic terms and conditions of [plaintiffs] contract,196 which directly implicates their right to contract and to enjoy all benefits, privileges, terms and conditions of the contractual relationship.197 Similarly, the court in Joseph v. New York Yankees Partnership found that an African-American woman, unlike non-minority patrons, was required to abide by the dress code in order to enter the Stadium Club.198 Although Ms. Joseph was ultimately allowed to enter the Club after she changed her shirt, the court broadly held that placing additional conditions on minorities in contractual relationships denies their right to contract on the same terms and conditions as white citizens.199
[*PG43] Turning to the case at hand, those plaintiffs who present sufficient evidence that Cracker Barrel employees prevented them from entering the restaurant could prove that they suffered an actual contract loss.200 Their argument, that they attempted to contract with Cracker Barrel but were actually prevented from doing so because they were denied entry into the restaurant, states a plausible cause of action under § 1981 if similarly situated caucasian customers were allowed entry.201 Refusal to allow a customer to enter the store is equivalent to a refusal to contract; it is a discriminatory refusal to [*PG44]deal. The license to enter the store is necessary to make good on the stores implicit invitation to deal.202
Some plaintiffs contend that they suffered a loss of contractual interest because they were effectively removed from a restaurant.203 While no one was asked to leave a Cracker Barrel restaurant, many plaintiffs state that they waited to be served (sometimes for periods as long as an hour and a half); were not served, despite attempts to obtain service; and eventually decided to leave the restaurant.204 Given that they were not refused access to or removed from the restaurants premises, these plaintiffs face a difficult challenge in demonstrating that Cracker Barrels neglect violated their right to contract with the restaurant.205 Moreover, the defendant may successfully argue that the plaintiffs could have sought help from other servers.
Some plaintiffs claim that Cracker Barrel engaged in prohibited conduct by failing to provide the complimentary bread that white patrons received.206 These individuals can argue that the bread is a benefit of their purchase, which Cracker Barrel has a contractual duty to supply.207 Like Ms. Hampton, the plaintiffs completed the invited [*PG45]performance in accordance with the terms of the offer208 by accepting Cracker Barrels offer to purchase meals at defendants restaurants. Cracker Barrels failure to meet its contractual duty, by depriving plaintiffs of complimentary bread, adversely affected the terms and conditions of its contract with plaintiffs in violation of § 1981.
In addition, Cracker Barrel faces charges that it seated plaintiffs in segregated sections of the restaurant.209 Refusing to serve plaintiffs who did not tolerate the special condition of dining in the back of the restaurant denied African-American patrons the right to contract on the same terms and conditions as is enjoyed by white citizens.210 To the extent that Cracker Barrels seating practices imposed upon African-American customers conditions that were not similarly imposed on caucasian patrons, plaintiffs may succeed in establishing that Cracker Barrel denied them the same right to make and enforce contracts as it affords white customers.211
Where actual loss of a contractual interest is absent, some CRP plaintiffs may argue that they were subjected to a hostile shopping environment. A growing number of courts are concluding that mere delay or other harassment that does not amount to an outright denial of service is nonetheless actionable as denial of a right to make and enforce contracts on the same basis as white citizens. In a recent case, an African-American woman was subjected to a barrage of racial slurs from a white customer and the white sales clerk at a convenience store when she brought her purchase to the counter.212 The customer also threw change at the plaintiff, spit in her face, and ran out of the store as he threatened to kill her.213 Although the plaintiff was eventually able to purchase items from another cashier, the court held that the delay in completing the transaction, coupled with the alleged racial attack, established a violation of § 1981.214 The court found that the fact that an act of contractual discrimination was short or de minimis does not make it any less a violation.215
[*PG46] In addition, some courts have recognized the plaintiffs prima facie claims of race discrimination in suits against restaurants that allegedly engaged in harassing conduct.216 For example, evidence that Dave & Busters staff provided only limited services and that they did so in a manner that went beyond poor service demonstrated that the plaintiffs contract with the defendant included terms and conditions that differed from those generally available to white persons.217 Another court found that the plaintiffs claim was actionable because the defendant restaurant failed to provide plaintiffs the full benefits of the contract when poor service and a disturbing atmosphere eventually drove the plaintiffs out of the restaurant before finishing their meals.218 Moreover, one court held that a contract with a restaurant includes being served in an atmosphere which a reasonable person would expect in the chosen place.219
The outcomes in these cases suggest that some courts interpret § 1981 as prohibiting racially harassing conduct that results in the discriminatory denial of the accoutrements that are ordinarily provided [*PG47]with a restaurant meal . . . .220 These courts focused on the degradation of service that plaintiffs experienced to the extent that it differed from the service provided to white customers. In McCaleb, for example, the court analogized the defendants harassing conduct to situations where the plaintiffs were denied the opportunity to purchase services altogether.221 As a result, there is precedent for the proposition that § 1981 proscribes race-based harassment by retailers and restaurateurs when such conduct degradesbut does not completely denygoods or services for customers of color.
Accordingly, the courts should apply this broader interpretation of the Act. Such an interpretation is more consistent with both the intent of the original Act and the goal of the 1991 Amendment to § 1981.222 As one civil rights attorney has argued,
It cannot plausibly be suggested that, in adding expansive language [in the Civil Rights Act of 1991] to rectify the Patterson Courts cramped reading of § 1981, Congress simultaneously intended that § 1981 would fail to protect persons broadly with respect to the benefits, privileges, terms and conditions under which they are afforded the opportunity to pursue and make contracts.223
The right to contract on the same terms as white shoppers includes the right to be free from harassment while shopping.224 In the retail environment, making a contract may involve a number of events, such as inspection of the goods, comparison of goods and prices, inquiry [*PG48]into the terms and conditions, and negotiation.225 Harassing behavior by a merchants security guards that prevents an individual from inspecting and comparing goods, for example, frustrates that individuals opportunity to make specific contracts or purchases.226 Therefore, race-based harassment interferes with the right of a shopper of color to contract on the same terms as white customers.
Although it is well-settled that § 1981 protects a victim of hostile environment harassment in the employment context,227 to date, no federal court has expressly held that a claim of hostile environment harassment in the marketplace is actionable under § 1981.228 An interpretation of the statute that prohibits racial harassment arising from a contract for employment while allowing racial harassment that arises from a contract for goods or services is entirely inconsistent.229 In deciding CRP cases, the courts should follow the standard that applies in § 1981 employment cases.
The standard used in the employment context provides guidance to courts deciding claims of consumer harassment. The unambiguous language of § 1981 mandates that All persons . . . shall have the same right . . . to make and enforce contracts . . . [which includes] . . . the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.230 The Supreme Court has expressly held that very similar language creates a cause of action for hostile work environment under Title VII.231 In Patterson, the Court explained that harassment [*PG49]in the course of employment is actionable under Title VIIs prohibition against discrimination in the terms, conditions, or privileges of employment.232 Claims of racial harassment in employment are actionable under § 1981 based on the same reasoning.233 It is therefore logical that § 1981 should create a cause of action for shoppers who are subjected to harassment as they attempt to enjoy the benefits, privileges, terms, and conditions of their contractual relationship with a retail establishment. The federal courts express recognition of consumer harassment claims would reconcile the discrepancy that currently exists when harassed employees obtain redress under § 1981 but harassed consumers do not.
Returning to the allegations in the Cracker Barrel case, the restaurant employees provided plaintiffs with inferior service by engaging in harassing conduct, such as serving them cold or tepid food, requiring them to request silverware several times, subjecting them to rude and brusque treatment, and seating them in a section of the restaurant where a patron had vomited.234 As mentioned above, some plaintiffs additionally claim that Cracker Barrel violated their rights under § 1981 by seating them in segregated sections of the restaurant.235 These plaintiffs may argue that defendants harassing and disruptive service created a hostile environment during their dining experience that was based on their race and that interfered with their right to en[*PG50]joy the benefits, privileges, terms, and conditions of their contract with Cracker Barrel.236 Even though the plaintiffs were not explicitly prevented from entering into a contract with Cracker Barrel, it is clear that the racial harassment they endured prevented plaintiffs from enjoying the benefits, privileges, terms, and conditions of the contractual relationship on the same basis as white customers. Failure to recognize harassment as a legitimate cause of action eliminates § 1981 as a viable remedy for racial discrimination at all stages and in all aspects of contracting and undermines the express purpose of the statute.
Few courts have analyzed § 1981 cases beyond the plaintiffs prima facie case.237 Defendants whose motions for summary judgment are denied typically agree to settle the claims.238 If plaintiffs meet the challenge of establishing a prima facie case, the defendant merely needs to articulate a legitimate non-discriminatory reason for the adverse action to rebut the inference of discrimination raised by the plaintiffs prima facie case.239 Defendants burden is one of production, not of persuasion.240
[*PG51] Of course, there are countless reasons that may be offered to explain why shoppers were treated differently in retail establishments.241 Typically, defendants legitimate non-discriminatory reason for interfering with a shoppers right to complete a purchase is that there was a suspicion of shoplifting242 and that any surveillance was not due to the customers race.243 In the specific context of a restaurant, the number of people in a party, the presence or absence of children in [*PG52]the party, preference accorded to regular customers, or the amount and types of food and beverages ordered may be alleged by the defendant to have accounted for the disparate treatment.244 In LaRoche v. Dennys, for instance, the court found that Dennys met its burden of production when it introduced evidence from which one could infer that the plaintiffs were not served because Dennys overworked, stressed manager and host declined to serve customers who became verbally abusive upon learning that the restaurant was out of some food items. 245 Doubtless, Cracker Barrel will produce evidence of other reasonsbesides plaintiffs racethat motivated its employees to treat the plaintiffs as they did.
After the defendant articulates a non-discriminatory reason for the adverse action, the burden shifts back to the plaintiff to prove, by a preponderance of the evidence, that he or she was the victim of intentional discrimination.246 Plaintiff can demonstrate that the defendants reasons are a pretext for discrimination by showing that the stated reasons had no basis in fact, that they were not the actual reasons, and that the stated reasons were insufficient to explain the defendants action.247
The Supreme Court has explained that the fact-finders disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.248 In other words, the fact-finder must consider whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [its] proffered legitimate reasons for its action that a reasonable fact-finder could find them unworthy of credence.249
[*PG53] As previously mentioned, only a small number of federal courts have analyzed claims of consumer discrimination beyond the prima facie case. A review of cases filed since 1990 reveals that plaintiffs succeeded in rebutting defendants legitimate, non-discriminatory reasons in two jury trials,250 while two other juries did not believe that defendants reasons were a pretext for intentional discrimination and found in favor of the defendants.251 In a suit against Dillards department store, the Tenth Circuit Court of Appeals affirmed the jurys finding in favor of the plaintiff, Ms. Hampton, because it concluded that, based on her presentation of evidence, the jury could reasonably infer that the defendants justifications were pretextual.252 Such abundant indirect evidence of discrimination included:
[*PG54][T]estimony from former Dillards security officers that corroborated the racial/surveillance theory, testimony that African Americans were frequently tracked upon entering the store; that Dillards implemented race codes that highlighted African-American shoppers as suspicious, [and] that African Americans were singled out as suspicious for returning merchandise without a receipt or for moving between departments while carrying merchandise . . . . As to Ms. Hampton specifically, she was noticed and placed under surveillance shortly after entering Dillards . . . [and the] Security Report, despite being less than two pages long, reiterated Ms. Hamptons race twelve times, reflecting implementation of the stores policy and reflecting [the security officers] motivation.253
Like Ms. Hampton, plaintiffs such as the Pilsons are more likely to prevail if they can establish that Cracker Barrels practice of racial discrimination is part of an on-going pattern or store policy.254
A current split among the federal appeals courts indicates that at least some plaintiffs will be afforded the opportunity to present evidence of consumer discrimination to a trier-of-fact. The Fourth, Fifth, and Sixth Circuit Courts of Appeals have reversed and remanded district court decisions granting defendants motions for summary judgment or motions to dismiss plaintiffs § 1981 claims.255 The First, Second, Third, Seventh, Tenth, and D.C. Circuit Courts of Appeals, however, have affirmed such decisions in favor of the defendants.256 Sadly, the case against Cracker Barrel restaurants is an unpleasant reminder that society still has a long way to go before the promise of [*PG55]the civil rights acts will find fulfillment.257 Courts must abandon a self-defeating, restricted construction in favor of a literal interpretation of the statutes clear language to achieve § 1981s goal of racial equality in the marketplace.
One hundred years ago, mail-order catalogues offered African-American consumers an opportunity to avoid consumer spaces in which they were subject to personal humiliation and marketing inequality.258 Shopping online offers similar benefits today.259 Nevertheless, Americans of all racial backgrounds are likely to continue patronizing brick-and-mortar retail stores and restaurants. Therefore, people of color remain vulnerable to unfair treatment while shopping. Although individual CRP incidents may appear benign, consumer discrimination is pervasive, affecting mostif not allpeople of color on a regular basis. For young victims of CRP who are reminded, again and again, that they belong on the margins of American society, the problem is anything but innocuous.260 Over time, alienation and hopelessness stemming from such marginalization can lead to destructive behavior harming both the individual and society.
If African Americans and other people of color encounter hostility and abuse when they attempt to spend their money, it is partly because a restrictive reading of § 1981 has prevented the advancement of racial equality in the marketplace. Section 1981 currently protects [*PG56]consumers when merchants deny them access to their premises. Plaintiffs whose allegations fall short of complete denial of access, however, are usually unable to obtain compensation under the statute.
In addition, the federal courts summary adjudication of racial harassment claims in retail establishments prevents African Americans and other people of color from publicly exposing the treatment they endure.261 Courts fail to understand the subtle nature of modern discrimination when they require plaintiffs to establish that they were prevented from forming a contract with the defendant.
Unless federal and state public accommodation laws are amended, these statutes are poor vehicles for redress. Similarly, the common law inadequately addresses the specific harms alleged by CRP plaintiffs. Section 1981 currently presents the best opportunity for curbing the invidious racism that continues to deny equality to Americans of color. It was designed to ensure that the value of money would not be determined by its owners identity. To realize the statutes goal, the courts must recognize that § 1981 guarantees to all Americans the right to be free from race-based harassment while shopping.