Retail employers: protect against racial profiling charges

One of my favorite categories on Twitter is #firstworldproblems. As the name implies, it's a bunch of tweets about problems that don't amount to anything but that drive us crazy in our ridiculously affluent, spoiled-rotten world.

Here is one I just made up, based on a true example from my life last night:

iPad Air goes on sale @ midnight - should I order online or go to AT&T store tomorrow? #firstworldproblems

Here's another:

So excited - I just figured out how to embed a Tweet in this blog post! #firstworldproblems/#solutions

And here are a couple of real ones from Twitter that I thought were pretty funny:

<blockquote><p>I left my remote on the other couch <a href="">#FirstWorldProblems</a></p>— First World Life (@FirstWorldLife) <a href="">October 31, 2013</a></blockquote>
<script async src="" charset="utf-8"></script>There are some really good ones @FirstWorldLife, including this gem:

What does any of this have to do with employment law, you may ask? Why, everything, of course!

You may have read of the uproar about luxury retailers who are allegedly discriminating against African-American customers. In August, Oprah Winfrey became quite upset when a shopgirl in Zurich, Switzerland, allegedly tried to steer her from a $38,000 handbag, allegedly because of Ms. Winfrey's race.

"Lovey, no one ever tried to steer ME away from a $38,000 handbag!"

Sales clerks at luxury stores in Zurich don't always treat me like my net worth is $2.9 billion #firstworldproblems

(Not an actual tweet from Oprah - I just made that one up.) The shopgirl became upset at the implication that she was a racist, and she stood up for herself, and her boss backed her up, too. Oprah ended up saying that it was all overblown in the media and was really no big deal.

So, that one went away, but more recently some African-Americans have claimed that Barney's and Macy's in New York City, with the help of the NYPD, are doing even worse -- actually detaining them for questioning or arresting them on suspicion of dishonesty for "shopping while black." The Attorney General of New York has begun an investigation into the stores' security practices, and at least two people who claim they were arrested after making big purchases (not Oprah-level, but a $349 Ferragamo belt and a $2,500 Céline handbag) have either sued or said they were going to sue the retailers and the NYPD.

According to news reports, the purchases in question all turned out to have been legitimate, if not particularly prudent.

The stores and the NYPD are pointing fingers at each other, but a few (allegedly disgruntled) former store security employees say they were given "arrest quotas" and told that they had to detain a few innocent people now and then if they were going to catch the guilty. I have no idea whether this is true, or whether it was sort-of-true-but-taken-way-out-of-context, but that's the allegation. One sales clerk reportedly quit her job because she believed that minority customers were being harassed, and she's filed an EEOC charge against her ex-employer, presumably claiming retaliation for having complained about it. And of course Al Sharpton has become involved. Ugh.

Theft is a big problem for retailers, and, oddly enough, a pretty big problem for the more -- if you'll pardon the expression -- discriminating stores. Folks have been known to come into luxury stores in pairs, and one distracts the clerk while the other one helps him or herself to merchandise. Or folks pay with stolen credit cards. Or they try other scams.

Is there racial profiling in stores, and especially in snooty stores? 

I don't have any personal experience about racial profiling because I am white. Plus, I do most of my shopping on line. Plus, although I have extensive fast-food employment experience (Burger King and Arby's!), I have never worked in a retail store. However, I do know that profiling takes place in retail, and not just in the snooty stores, because I've seen it myself. 

For example, if I have to stop at the store -- any old store -- on my way home from work when I have makeup on and my hair combed, and am dressed in my very best "business casual" and 1 1/2-inch heels (hey - I'm a lawyer - you expected high fashion?), the clerks are nicer to me than when I go in on Saturday morning in flip-flops, no makeup, and whatever I could find to wear that wasn't wadded up in the bottom of the hamper, spinning in the washing machine, or at the dry cleaner's. In other words, looking like a mugshot on The Smoking Gun.

"Why don't them consarn sales clerks at them hoity-toity stores treat me like the millionairess I is?"

Am I right, or am I right?

I saw a photo of the kid who is suing Barney's over the belt, and I wondered -- is that the way he was dressed the day he purchased the $349 Ferragamo belt? And how many college students have that kind of money? Similarly, the young lady who bought the $2,500 Céline purse was a 21-year-old nursing student and, even apart from her age and station in life, looks like a regular person who doesn't have $2,500 to blow on a purse. (I don't really know what the type of person who spends $2,500 on a purse looks like, but I would have expected somebody who looked more like, say, Michelle Obama.)

Not that anyone should be arrested for being young, or for looking like an ordinary person - they shouldn't - but it's possible that they were "profiled" for reasons other than race.

Again, we don't know whether there is anything to these allegations. But here are a few tips for retail employers to ensure that their employees handle risk-management in a way that won't result in discrimination liability:

*If there is such a thing as an "arrest or detainment quota," and I'm not saying there is, then don't have one. If you have one, get rid of it.

*Develop risk-management criteria based on reliable, scientifically valid data, with the help of law enforcement. Once you've done that, publish your criteria, and make sure the employees go through training in it. Make sure it is very clear, and in writing, that racial profiling violates store policy and that a person's race or ethnic background should never be the basis for suspicion. Provide an avenue for employees to complain if they believe "racial profiling" is taking place, and make sure your employees know about it. As a retailer, training can be difficult because your stores are scattered at remote locations, and you also have to deal with frequently high employee turnover. An interactive computer-based training program might work well for you.

*As your risk management people uncover the latest scams, be sure you communicate the specific information to your employees, and update your written criteria.

*Make sure your employees know that affluent people come in all races and ethnic backgrounds, as do shoplifters and scammers. Although appearances can mean something, don't let your employees rely too much on style of dress and manner. A lot of the rich and beautiful look just as bad as the rest of us when they haven't cleaned themselves up for TV.

*Make sure your employees know that they should not make assumptions about customers based on race or ethnicity. I've already said that, but it's worth saying again.

*Don't pass the buck. If a customer flunked your risk criteria and you detained her or reported her to the police, then go ahead and admit it, and explain why your criteria showed that you were justified in doing so. Don't blame it on the police if you did it. If the police were solely responsible for detaining your customer, they should admit it, too. Co-defendants do much better as a united front.

*Preserve the individual customer's dignity as much as possible when a detention is necessary. Marching him through the store in handcuffs is hardly ever cool.

*Periodically monitor your detention/arrest statistics for adverse impact based on race or ethnicity. If it appears that a disproportionate number of minority customers are being detained, take a closer look and ensure that race or ethnicity isn't being used as a criterion, even if unconsciously. Revise your policies and retrain your employees as needed.

OK, let's close with one more #firstworldproblems funny from last night:

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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