Shoplifter Profiling: Is It a Preventive Tool or Racism at Play?

Chartwell Law
Contact
Most major retail stores use shoplifter profiling as a way to mitigate loss. It is a loss prevention method that focuses on a person, product line or section of a store that is most likely to see theft. It is not only good business sense but also good legal sense. To conduct shoplifter profiling, stores analyze their daily operations and inventory, and determine where, when, how, and by whom shoplifting is likely to occur. Retailers should exercise extreme caution not to blur the lines between shoplifter profiling and racial profiling.
 

Retailers must be aware of particular conduct that could indicate someone might be a shoplifter. Examples include a customer wearing oversized clothing or carrying oversized bags, or a customer who loiters in areas of a store that are not well monitored by security cameras, or a customer wearing winter clothing on a warm day, to name a few.

Certainly, observing conduct must be used with caution as there are plenty of customers who may unwittingly display behaviors often associated with shoplifting who have no intention of committing theft. Consequently, when untrained or unqualified individuals undertake the task of surveillance many problems can arise.

There is a big difference between shoplifter profiling, which is perfectly legal, and racial profiling, which is both illegal and improper. Racial profiling is a practice based on the mistaken belief that certain ethnic groups are more likely to shoplift than others. It causes employees to improperly focus their surveillance on a customer’s race instead of his/her conduct. There are many dangers posed by racial profiling. It can result in false theft accusations, wrongful detentions and harassment when no probable cause exists, all of which can result in legal consequent. Nevertheless, racial profiling is prevalent in retailers nationwide.

According to a 2017 study of 55 middle-class African American shoppers in the New York City area, eighty percent said they experienced racial stigma and stereotypes when shopping. Fifty-nine percent said they had been previously perceived as a shoplifter. Fifty-two percent said they have received inadequate or no service. Lastly, fifty-two percent said they had been perceived as "poor."[1] President Obama once poignantly said: “There are very few African American men in this country who haven’t had the experience of being followed when they were shopping in a department store. That includes me.”

Some retailers may be at risk of unconsciously conducting racial profiling. Rashida Richardson, the Director of Policy Research at the AI Now Institute, stated that if you look at the top three companies providing facial recognition and other artificial intelligence monitoring, none of them performs with 100 percent accuracy.[2] Rather, studies have found that error rates skew predominantly higher against men and women of color than they do against those of European descent.[3] Retailers must be aware of these potential inaccuracies when investing in these tools as they could leave them vulnerable to claims of racial profiling.

Unless racial profiling is controlled by management, a retailer may subject itself to discrimination claims with a local Human Rights Commission as well as lawsuits for civil rights violations and/or false arrest. Retailers must be wary that local Human Rights Commissions often employ long, complicated processes for the resolution of discrimination claims, all of which must be done before a claimant can file suit. Claimants are often more likely to win on false arrest claims and lose discrimination claims as jurors feel uncomfortable saying their local stores have racist practices. Additionally, claimants have a hard time holding retailers accountable for civil rights violations because the two primary laws that apply- Title II of the Civil Rights Act of 1964 and 42 U.S. Code Section 1981- are interpreted narrowly by the courts, holding that shoppers do not have a right not to be racially profiled or accused of shoplifting.[4]

In 2001, the U.S. Court of Appeals for the Tenth Circuit held that a national retail department store was not liable to African American customers’ allegations of discriminatory surveillance because the customers were never denied the opportunity to buy items, which is the only applicable right protected by the law. The court explained that freedom from racially discriminating security practices is not a privilege extended to customers.[5]

Although retailers are not often held liable for racial profiling, these lawsuits often provide a policing effect. This is precisely what occurred in 2005 when a major national retailer settled a class-action lawsuit against it for racial profiling.[6] African American and Hispanic customers alleged they were detained, questioned, searched and handcuffed more often than Caucasian customers.[7] Although the store’s policy only permitted handcuffing after a suspect was determined to be dangerous, the claimants alleged they were handcuffed regardless of the situation.[8] In its settlement agreement, the retailer agreed that its security officers would adhere to store policy and not use racial or ethnic profiling in combatting shoplifting. Additionally, the retailer agreed to adopt several measures to combat racial profiling, including appointing staff to investigate complaints, training and supervising security personnel and salespeople on how to avoid profiling and hiring an outside auditor to perform unannounced reviews.[9]

Even with these measures allegedly in place, the retailer again came under scrutiny when sued for racial profiling in 2014 by African American actor Robert Brown.[10] The retailer’s settled the lawsuit in early 2014 for an undisclosed amount. Around that time, similar lawsuits were filed by African American customers against an upscale New York department store.[11] The claims against these retailers, two of New York’s most famous department stores, prompted New York Attorney General, Eric Schneiderman, to investigate the allegations of racism. As part of that investigation, the department stores were requested to turn over their “policies and procedures for stopping, detaining and, questioning” customers, as well as all data and documents pertaining to the “stops and detentions” of customers.

Recent events have put a global spotlight on the ongoing issue of racism in America. In response, numerous retailers have come out publicly to condemn racism and promised greater diversity in their leadership, as well as a commitment of resources to bring about racial equity. However, critics say racial profiling continues to exist. Examples continue to be seen not just in the courtroom but are all over the media.

As examples of racial animus in the retail setting grow daily, it is critical for retailers to address the issue of racial profiling in order to prevent legal, financial, as well as societal implications.[12] Although most retailers may have policies and/or training against discrimination, it is doubtful that these policies and/or training specifically address racial profiling. Retailers should consider revising their policies and training to include efforts to combat racial profiling and have zero tolerance for abuse of such policies. Additionally, during the hiring process, retailers should screen out candidates who may be predisposed to prejudice. Then, once hired, retailers should train all new employees to focus surveillance efforts on a customer’s conduct and not his or her race. However, employing such measures will only be beneficial to the retailer as long as it maintains a conscious and ongoing effort to combat racial biases.

[1] See Journal of Consumer Culture, "Shopping While Black: Black consumers' management of racial stigma and racial profiling in retail settings", Cassi Pittman, July 27, 2017.

[2] See https://www.cbsnews.com/news/facial-recognition-systems-racism-protests-police-bias/

[3] See https://www.cbsnews.com/news/facial-recognition-systems-racism-protests-police-bias/

[4] https://news.bloomberglaw.com/social-justice/nike-joins-ranks-of-retailers-sued-over-shopping-while-black?context=article-related

[5] See Gregory v. Dillard’s, Inc., 565 F.3d 464 (8th Cir. 2009).

[6] See https://news.bloomberglaw.com/social-justice/nike-joins-ranks-of-retailers-sued-over-shopping-while-black?context=article-related

[7] See https://news.bloomberglaw.com/social-justice/nike-joins-ranks-of-retailers-sued-over-shopping-while-black?context=article-related; see also https://www.securityinfowatch.com/security-executives/loss-prevention-solutions/press-release/10592863/associated-press-macys-agrees-to-end-racial-profiling-in-shoplifting

[8] See https://www.securityinfowatch.com/security-executives/loss-prevention-solutions/press-release/10592863/associated-press-macys-agrees-to-end-racial-profiling-in-shoplifting

[9] See https://news.bloomberglaw.com/social-justice/nike-joins-ranks-of-retailers-sued-over-shopping-while-black?context=article-related; see also https://www.securityinfowatch.com/security-executives/loss-prevention-solutions/press-release/10592863/associated-press-macys-agrees-to-end-racial-profiling-in-shoplifting

[10] See https://www.theguardian.com/business/2013/oct/29/new-york-barneys-macys-racial-profiling-jay-z; See also, Brown v. Macy’s Inc., et al., Docket No. 1:13-cv-08094-LGS.

[11] See https://www.theguardian.com/business/2013/oct/29/new-york-barneys-macys-racial-profiling-jay-z See also, https://www.refinery29.com/en-us/2016/01/101592/barneys-trayon-christian-lawsuit-settlement (Barney's was faced with a $5 million dollar lawsuit by Black customer, Kayla Phillips, who settled for $565,000 and another lawsuit by Trayon Christian, who settled for $45,000.)

[12] https://www.cnbc.com/2020/07/05/as-black-buying-power-grows-racial-profiling-by-retailers-remains-a-problem.html (Black consumers skew younger than the median American consumer and theirspending is projected to grow significantly in the years ahead, according todata from Neilsen.)

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.

© Chartwell Law | Attorney Advertising

Written by:

Chartwell Law
Contact
more
less

Chartwell Law on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.