USA: Racial Profiling, Loss Prevention, and Section 1981 in Retail

‘Tis the season for shoppers to descend upon retailers in search of that perfect gift for loved ones.  However, not all shoppers are having a perfect shopping experience.  As Dr. Cassi Pittman, an assistant professor of sociology at Case Western Reserve University has noted, while money is portrayed as a great equalizer, her recent research titled “Shopping While Black” published in the Journal of Consumer Culture, contests that idea.

According to Dr. Pittman’s research, minority shoppers—particularly at high-end apparel retailers—often reported (1) being followed around the store; (2) told the location of the store’s sale section unprompted; (3) ignored, made to wait and skipped over for non-minority customers; and (4) told the price of expensive clothing items before asking or trying them on.

Allegations of racial profiling can become particularly difficult to navigate in the context loss prevention policies.  A quick Google search yields story after story of big retailers struggling to find a clear path.

While allegations of racial profiling are clearly a concern for any retailer’s marketing department, it should also be a worry for its legal department.  Retailers are not immune to legal liability for alleged racial profiling by employees, particularly in the loss prevention context.  In the last few years alone, retailers have spent millions of dollars to settle racial profiling concerns with various governmental agencies.  Customer-plaintiffs have also been bringing more claims of racial discrimination under 42 U.S.C. § 1981 against retailers—and surviving motions to dismiss the same.

Under § 1981, a plaintiff can establish a prima facie case by alleging (1) they are a member of a racial minority; (2) the defendant intended to discriminate against them on the basis of race; and (3) the discrimination abridged their right to make and enforce a contract.  In denying motions to dismiss, courts are focusing on the third prong, concluding it may be possible to abridge the right to contract by denying the customer’s rights to “the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship” which are enjoyed by white citizens when the customer-plaintiff has been racially profiled. Courts have equated practices, such as discriminatory surveillance in the retail context, with Civil Rights-era claims filed by African-American plaintiffs who were refused service at restaurants.

So what is a retailer to do?  How should, for example, reasonable loss prevention concerns be weighed against the potential for racially profiling customers?

Best practices for any retailer’s loss prevention policy should first start with clearly defined and articulated policies against racial profiling and demonstrating zero tolerance for violations.  Retailers should also give careful thought to criteria for monitoring particular customers.  Surveillance decisions should be based on objective, race-neutral criteria (e.g., know what day(s), what time(s), what product line(s), and what department(s) have the most shoplifting activity).  Importantly, when apprehensions are made by loss prevention personnel, they should be carried out on-site and away from large crowds.  Use of force should be minimized, and handcuffs should be employed only based upon an individualized and race-neutral assessment of need. On a broader level, policy should emphasize preventing the loss over making the apprehension.  Detentions and recovery quotas should be de-emphasized.  Finally, of course, a policy is only as good as its implementation; regular training and auditing of surveillance practices to ensure the loss prevention policy is being followed is essential.

Jackson Lewis attorneys are available to answer inquiries regarding these issues and other workplace developments. For additional guidance, please contact a Jackson Lewis attorney.