Anti-Discrimination Laws: Retailers Beware!


In August, we heard about the difficulties Oprah Winfrey encountered during an upscale shopping trip in Switzerland. It appears the issue hits quite a bit closer to home. In yesterday’s Women’s Wear Daily, there appeared an article pointing out that major New York retailers will be meeting on November 22, 2013 amidst allegations of racial profiling being used in the process of monitoring suspected shoplifters. The event is cohosted by the Retail Council of New York State and the New York Metropolitan Retailing Association and such prominent companies as Macy’s Inc., Barneys New York, Neiman Marcus Group, Lord & Taylor, Saks Inc. and Bloomingale’s are mentioned as having confirmed their participation.

Macy’s and Barney’s are being sued along with the NYPD under circumstances where black shoppers are alleging they were stopped after making expensive purchases in those stores. Support for such actions can be found in laws such as the New York City Human Rights Law (see Title 8 of the Administrative Code of the City of New York). That law prohibits discrimination based on a number of characteristics, including race, generally in any place of public accommodation, which would include retail stores. The current situation serves as a reminder to retailers to exercise vigilance in training their staffs, especially security staffs, including means and methods seeking to address loss prevention. If you are a retailer, it is incumbent on you to make sure your standard operating procedures are up-to-date, your staff is regularly trained and sensitive in this area, and that at the moment an incident occurs, you make sure you retain your security video capturing the event. Typically those security videos, which often offer the best evidence about what happened, are routinely written over and that turns the matter into a he said -she said swearing contest, the least desirable position for a retailer to find itself in. Worse, under current evidentiary rulings, destruction of evidence such as videos can lead to the jury being told by the judge it may draw negative conclusions against the store on the basis that the video showing what happened had been destroyed!

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Mitchell Silberberg & Knupp LLP | Attorney Advertising

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