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 Anne-Marie G. Harris

excerpted from:  Anne-Marie G. Harris, Shopping While Black: Applying 42 U.s.c. 1981 to Cases of Consumer Racial Profiling, 23 Boston College Third World Law Journal 1 - 55 (Winter, 2003) (261 Footnotes omitted)

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 party's 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, 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. 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. In fact, "shopping while black" involves some of the same risks associated with the better-known phenomenon of "driving while black." Shoppers of color are viewed with suspicion and, as a result, they are more likely to be watched, followed, harassed, and even denied service in the course of their daily roles as consumers.

The issue of racial profiling in retail stores gained national attention during the 1990s following two ABC television broadcasts ("True Colors" on PrimeTime Live and an ABC News 20/20 investigative report) and some highly-publicized lawsuits involving well-known establishments such as Eddie Bauer, Dillard's Department Stores, and Denny's Restaurants.

Consumer Racial Profiling (CRP) 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. 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. Outright confrontation includes verbal attacks, such as shouting racial epithets, and physical attacks, such as removing customers from the store. Customer harassment includes slow or rude service, required pre- payment, surveillance, searches of belongings, and neglect, such as refusing to serve African-American customers.

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 1981's 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 market-place.

. 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.

. 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.

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