Another Retail Landmine: The Pitfalls of Alleged Racial Profiling Against Customers

Barneys and the New York City Police Department were named in a lawsuit by a Queens man detained by police in April 2013 for two hours after buying a $349 Ferragamo belt, and then released without being charged. Another Barney’s shopper said she was surrounded by four undercover police officers in February 2013 after leaving with a $2,500 Celine handbag she had purchased.

Two Macy’s shoppers made similar complaints, including one by an actor who said he was handcuffed and held for an hour after purchasing a $1,000 gold Movado watch for his mother. The second complaint against Macy’s was filed by an exercise trainer from Brooklyn who said he was surrounded by police and forced to show identification in April 2013 after he used his credit card to buy $320 worth of Polo shirts and ties.

Although the private lawsuits are still pending, Barneys settled with the State Attorney General who had lodged an investigation into the retailer’s behavior. Under the agreement, Barneys will pay $525,000 in fines and expenses, will hire an “anti-profiling consultant” for two years, update its policy and record-keeping on detaining customers suspected of theft, and improve training of security and sales personnel.

Following Barneys lead, Macy’s also settled the investigation against it. The investigation reviewed the internal “loss prevention” procedures employed by Macy’s at its Herald Square store as well as allegations that black and Hispanic shoppers were unfairly targeted by security officials. The inquiry found that Macy’s “detained African-Americans, Hispanics and other minorities for allegedly shoplifting at significantly higher rates relative to whites.”

Under the settlement agreement with the State Attorney General, Macy’s must hire an independent expert responsible for improving and monitoring its anti-shoplifting efforts. Macy’s also must do the following:

• Enhance its record keeping related to training and security;
• Distribute an anti-racial profiling memorandum to workers; and
• Drop a policy that allows guards to stop shoppers who take an item more than two floors from where they picked it up without buying it.

Although the focus on racial profiling is relatively new, for years, retailers have been covered by laws at the federal, state, county, and city levels that prohibit public accommodations from discriminating against customers on the basis of not only race, but also color, religion, sex, national origin, age, disability, and — in many cases — other factors such as sexual orientation and gender identity or expression. Just as retailers can’t discriminate against applicants and employees based on legally protected statuses, they cannot discriminate against their customers.

Given the public scrutiny of, and obvious attention by law enforcement to, this issue, what can retailers do in order to be compliant with the law and minimize exposure to lawsuits? Here are some suggestions:

• First, understand the issues. “Racial profiling” is the practice by businesses, including their sales and security staffs, of treating consumers differently because of their race. It can relate to any policy or behaviors by employees to customers. But remember that improper profiling can be based on any other legally protected statuses. Consequently, any customer in a legally protected status who thinks they are mistreated might perceive that they are a victim of unlawful discrimination. Simply having a bad or busy day at work is not necessarily a defense to these claims.
• Second, focus on the solution: training, training, and more training. While an employer cannot control every employee and their own internal biases, employees must understand that working in a retail environment means checking those biases at the door. The specifics of a training routine on racial profiling and other forms of discrimination can vary, but some important points to focus on are training employees to concentrate on the behavior of the customer as opposed to his or her appearance, particularly in the area of shoplifting. (For example, is the customer making eye contact? Is the customer hiding his or her face from employees? Is the customer browsing the store with no clear direction?)
• Third, establish policies that are adhered to strictly regarding the substantially equal treatment of customers more generally. Consistently review these policies with employees to root out any hidden patterns of discrimination. And make sure that there are consequences for employees who racially profile or otherwise discriminate or fail to follow other company policies.
• Fourth, clearly post policies related to check cashing and returns. And, most importantly, apply these policies across the board to all customers equally. This is a prime target for racial profiling charges (for example, a white person is permitted to make a return without a receipt while a black person is not).
• Fifth, consider using mystery shoppers to test employees on whether they are engaging in improper profiling and other conduct that could be perceived as discrimination. Use counseling to improve conduct.
• Sixth, focus security efforts on areas of the store where most thefts occur, not on the racial or other protected characteristics of those who have shoplifted or engaged in other improper conduct at the store.
• Seventh, follow the “golden rule” and treat customers the way you would want to be treated under similar circumstances. Customers tend to focus as much, if not more, on how they think they were treated as opposed to what actually happened.

These are some potential solutions to address claims of racial profiling and other forms of discrimination on the retail floor. Every situation is different, and there is no one-size-fits-all solution.