The Customer Caste: Lawful Discrimination by Public Businesses
It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms based on their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect Black and other people of color from discrimination and segregation in public accommodations—places where people receive goods, food, services, and lodging. Scholarship has not analyzed how well Title II and Section 1981 of the Civil Rights Act of 1866 have functioned in this arena. An examination of this caselaw shows that courts find legal numerous discriminatory and segregatory actions by places of public accommodation. An abbreviated look at Section 1982 of the Civil Rights Act of 1866 shows that courts have interpreted that law in the same manner as Section 1981. An assessment of the legislative history and text of Title II and Section 1981, in addition to a comparison to the interpretation of laws with similar purposes, demonstrates that the federal judiciary has incorrectly constrained the law by, among other actions, adopting the heavily criticized employment discrimination caselaw and requiring a common law-like contractual relationship. Jim Crow laws ceased to exist in the 1960s, but these interpretations have created “the customer caste,” whereby people of color are subject to legal, daily discrimination in retail stores, restaurants, gas stations, hotels, banks, and airplanes.
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Introduction
Jim Crow laws—the state laws that enabled segregation and other inequality beginning in the 1890s—disappeared in the 1950s and 1960s due to the decision of Brown v. Board of Education in 1954, the enactment of the Civil Rights Act of 1964, and the adoption of the Voting Rights Act of 1965.
Present reports in media describe this discrimination in traditionally segregated places, such as restaurants and hotels. One prominent example is the notorious Starbucks incident in downtown Philadelphia in which two Black men who were waiting for a meeting were forced to leave.
Title II of the Civil Rights Act of 1964 prohibits discrimination and segregation in public accommodations. It provides that “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.”
Now, despite the presence of Title II, Black and other people of color, although generally able to enter places of public accommodation, can be subject to inferior conditions. Through this treatment, a form of Jim Crow continues to exist through businesses’ discrimination against people of color.
Lawsuits that challenge this type of bias have not been a recent focus of attention.
Most recent legal scholarship on public accommodations also has not focused on race itself.
There are two main, seemingly robust, laws that apply to this type of bias. As mentioned above, Title II protects against discrimination and segregation in places of public accommodation.
This Article is the first to fully analyze the federal law on race discrimination in public accommodations and show the significant, improper impediments to enforcement that courts have created. It examines Title II and Section 1981 jurisprudence over the fifty years since Congress enacted Title II,
In the past, the Supreme Court has recognized that “Congress depends heavily upon private citizens to enforce the fundamental rights involved” in public accommodations and other civil rights cases.
Part I of this Article briefly describes why Congress enacted public accommodations laws. After detailing the statutory constraints of these laws, Part II then sets forth the significant jurisprudential limitations of the law, which effectively create a customer caste based on race. Finally, Part III critiques the caselaw by an examination and analysis of the statutory text, legislative history, and other relevant caselaw. It concludes that contrary to courts’ current interpretation, the law requires that Black people and other people of color are able to partake in public accommodations in the same manner as others, such that following people in stores and otherwise treating people differently based on race is illegal.
I. Slavery, Jim Crow, and the Development of Civil Rights Protections Against Discrimination in Public Accommodations
After slavery was outlawed, many southern states passed “Black Codes” in 1865.
The federal legislation included the Civil Rights Act of 1866 (1866 Act) and the Civil Rights Act of 1875 (1875 Act).
Energized by the Supreme Court’s precedent, many southern states immediately started to pass legislation that permitted the separation of people by race in railroad cars.
The world has never witnessed such barbarous laws entailed upon a free people as have grown out of the decision of the United States Supreme Court . . . . For that decision alone authorized and now sustains all the unjust discriminations, proscriptions and robberies perpetrated by public carriers . . . . It fathers all the “Jim-Crow cars” into which colored people are huddled and compelled to pay as much as the whites, who are given the finest accommodations. It has made the ballot of the black man a parody, his citizenship a nullity and his freedom a burlesque.
In addition to legalizing discrimination and segregation in transportation, legislation that required discrimination and segregation of people on the basis of race in other public areas also developed.
It shall be unlawful to conduct a restaurant or other place for the serving of food in the city, at which white and colored people are served in the same room, unless such white and colored persons are effectually separated by a solid partition extending from the floor upward to a distance of seven feet or higher, and unless a separate entrance from the street is provided for each compartment.
As another example, a Virginia statute governing theaters stated:
It shall be the duty of any person . . . operating . . . any public hall, theatre, opera house, motion picture show or any place of public entertainment or public assemblage which is attended by both white and colored persons, to separate the white race and the colored race, and to set apart and designate in each . . . certain seats therein, to be occupied by white persons, and a portion thereof, or certain seats therein, to be occupied by colored persons.
Before and after the Civil Rights Cases, the Supreme Court explicitly supported these laws. In 1877, it ruled that states may not prohibit segregation on common modes of transportation, such as trains, streetcars, and riverboats.
Change began to occur around this time.
II. Statutory and Jurisprudential Limitations of the Race Discrimination Public Accommodations Law
In the period before the enactment of Title II in 1964, plaintiffs and courts had not recognized Section 1981 and Section 1982 of the 1866 Act as significant laws against discrimination in public accommodations. Plaintiffs did not attempt to use them regularly, and courts generally did not enforce them. One hundred years after Congress enacted Section 1981 and Section 1982, Title II strengthened the public accommodations law and invigorated Section 1981 and Section 1982 as possibly potent statutory weapons.
Enforcement of Title II began auspiciously when the Supreme Court decided that Title II was constitutionally permissible under the Commerce Clause. In one of the two consolidated cases, the Heart of Atlanta Motel, which had refused to rent to Black people and wanted to continue to bar them, sought declaratory relief.
Despite this hopeful beginning, since that time, discrimination and segregation have continued—sometimes in old ways and sometimes in new ways. When plaintiffs have brought cases to challenge these practices, jurisprudential interpretations have severely limited the scope of the race discrimination public accommodations law. Although courts have held that a place of public accommodation cannot forbid admission or service because of race, it is not illegal to otherwise discriminate, including by dispensing inferior treatment. These constraints increase the burdens already placed on a plaintiff through the statutory requirements and constraints, which are first briefly discussed.
A. Statutory Requirements and Constraints
1. Title II
In Title II of the Civil Rights Act of 1964, Congress set forth broad language that prohibits discrimination in public accommodations. It states: “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.”
Second, the places subject to Title II are limited. Although Title II lists several establishments such as restaurants and hotels,
Finally, even if a place is subject to Title II, the relief for discrimination under the statute is extremely limited. Only attorneys’ fees, declaratory relief, and injunctive relief can be recovered.
Where plaintiffs seek injunctive relief, this remedy has been generally available only with repeated denials of admission or where admission to a place has been completely barred. For example, a judge ordered a preliminary injunction against a club that delayed and denied admission to Black people.
However, not all cases with discriminatory admission policies will result in injunctive relief. As one example, despite evidence of a discriminatory dress policy implemented by a bowling alley against Black people and discrimination against the plaintiff, the court denied injunctive relief.
2. Section 1981 and Section 1982
The statutory constraints that apply to Title II do not apply to Section 1981 and Section 1982 of the Civil Rights Act of 1866.
B. Jurisprudential Constraints
At the same time that statutory requirements in Title II curb its reach, federal courts throughout the country have created significant restrictions for Title II cases and claims under Section 1981 and Section 1982. Most of the limitations result in courts dismissing cases on a motion to dismiss or motion for summary judgment. In those instances, a judge determines that insufficient evidence of discrimination exists to proceed to discovery or to go to trial.
Courts have dismissed numerous public accommodations cases by using these procedures in conjunction with doctrines from employment discrimination jurisprudence and common law contract principles. This dynamic is described in this Section and analyzed in Part III. As previously mentioned, because courts almost invariably have interpreted Section 1981 and Section 1982 together with the same analysis, this Article includes only an abbreviated discussion of Section 1982.
1. McDonnell Douglas Framework
The Law
In the early 1970s the Supreme Court created what later became known as the McDonnell Douglas test—a method under Title VII of the Civil Rights Act of 1964 for an employee to prove their employer discriminated against them.
To prove the prima facie case for Section 1981 claims under the McDonnell Douglas test, a plaintiff must show (1) they are “a member of a protected class,” (2) they “attempted to contract for certain services,” (3) they “[were] denied the right to contract for those services,” and (4) “such services remained available to similarly-situated individuals who were not members of the plaintiff’s protected class.”
Only the Sixth Circuit, the Eleventh Circuit, the Third Circuit, and a few district courts have permitted a plaintiff to substitute the showing of similarly situated people in the prima facie case.
Although the prima facie test is considered an easy test, plaintiffs often fail to meet it in public accommodations cases. If the prima facie case is shown, the defendant has the burden to provide a legitimate nondiscriminatory reason for its action, which is a low threshold to meet.
The method of proof for Title II claims has been substantially the same as for Section 1981 claims.
Public Accommodations Claims Under McDonnell Douglas
Failing to Show Similarly Situated People
As described above, with the exception of a few circuits and district courts, when courts use the McDonnell Douglas test, they require a comparison of the alleged discriminatory treatment of the plaintiff and similarly situated people who are not in the protected class. Courts will dismiss cases based on a plaintiff’s inability to show that a defendant treated them differently than people who were outside their group. A few examples illustrate the state of the law.
In a Section 1981 case, the court criticized the lack of comparator evidence.
In another case, this time against Denny’s, the court explained that the Black plaintiffs had not shown that non-Black patrons were similarly situated, yet treated differently.
Even when similarly situated people may be present, courts may dispute the difference in treatment. In another Section 1981 case against Denny’s, White customers received seating before the four Black plaintiffs, White customers were permitted to make racial slurs, and the plaintiffs were detained for protesting their treatment.
A court may even disregard the different treatment of a similarly situated person who is outside of the protected class. In a Section 1981 and Title II case against Marriott, after the Black plaintiff’s room key became demagnetized and he required a new key, a White employee required the plaintiff to be accompanied to his room by security and present identification to the hotel employee.
Although the Sixth Circuit, the Eleventh Circuit, the Third Circuit, and some district courts allow plaintiffs to show hostile discriminatory treatment instead of meeting the similarly situated person requirement,
Failing to Prove the Place of Public Accommodation’s Reason for Treatment is Pretext for Discrimination
Even if the prima facie case of discrimination can be proven, courts often decide the plaintiff cannot show that the reason the defendant offered for its treatment of the plaintiff is pretext or a cover-up for discrimination. For example, in the Applebee’s Section 1981 case, the defendants asserted that the Black plaintiffs were not served because, previously, they had been rude and had not paid.
In another Section 1981 case, a Black passenger who had platinum medallion status with Delta Airlines waited in a priority line.
Insufficient evidence of pretext was also a court’s reason behind the dismissal of a Title II case against Waffle House.
As a final example of cases dismissed because a court decided pretext was not shown, a White mall security person ordered a group of Black men not to walk “seven deep.”
2. No Contractual Issue
Especially because of the remedies limitations in Title II that were described above,
Courts have held that the refusal to admit or serve—in other words, not to contract at all—violates Section 1981. However, nowadays, most companies do not act in this obviously discriminatory manner to deny admission or service. They may engage in other actions to inhibit contracts. As courts have recognized, “in light of the clear illegality of outright refusal to serve, a restaurant which wishes to discourage minority customers must resort to more subtle efforts to dissuade.”
In addition to the use of McDonnell Douglas to dismiss claims,
Following and False Shoplifting Accusations
Discriminatory surveillance practices have been documented in sociology literature.
In one example of these claims under Section 1981, a clerk called the police after two Black men, Morris and Nailor, entered an Office Max store.
In another case, this time in Kansas, a White security guard at a mall told a Black woman who was shopping to pull up her pants.
People falsely accused of shoplifting generally fare no better. For example, a Black plaintiff was followed around a store by a White Radio Shack employee, purchased an answering machine, and was later falsely accused of shoplifting by the police, whom the store had contacted about the plaintiff.
First, in a decision dismissing the Section 1981 and Section 1982 public accommodations claims that was later affirmed by the First Circuit, the district court declared the plaintiff “consummated his contractual relationship with Radio Shack: he purchased his supplies and went home, without any interference based upon his race.”
In its affirmance of dismissal, the First Circuit also discussed the plaintiff’s Section 1982 claim. It said, “Due to the statutes’ similar wording and common lineage, sections 1981 and 1982 are traditionally construed in pari materia.”
In the subsequent decision granting summary judgment on the state public accommodations claim, which the First Circuit affirmed, the district court followed the First Circuit’s prior holding that “the challenged surveillance must have some negative effect on the shopper’s ability to contract with the store in order to engage the gears of section 1981.”
Slow, Delayed Service
Similar to discriminatory surveillance, social science literature has recognized discriminatory service because of race.
For example, a court granted a motion to dismiss discrimination claims by Black patrons of a Pizza Hut in North Carolina.
Similarly, courts have held that Section 1981 does not cover discriminatory service by a bank. In one case in Arizona, a Black customer tried to make credit card payments and withdraw money from the drive-thru of her bank JPMorgan Chase.
Discriminatory service can occur in any place of public accommodation including stores and gas stations. In a case against Target, a Hispanic plaintiff alleged a White cashier refused to check him out and served White customers before and after him.
Service Infused with Racist Remarks
The use of explicit racist and coded racist comments has been documented in the service industry.
For example, in a case involving the purchase of gasoline and attempted purchase of beer, Hispanic plaintiffs alleged that a White Conoco store clerk treated them differently.
In another similar case, a White Kmart store clerk made many racist comments while the Black plaintiff placed an item on layaway.
Similarly, in the same manner as the First and Fifth Circuits, the Seventh Circuit decided a case with explicit racist remarks. It affirmed summary judgment on Section 1981 and Section 1982 claims for an Ameritech store where the Black plaintiff was given the finger and refused service by an assistant sales manager who had previously made racist remarks in the plaintiff’s presence.
Other Behavior
More subtle forms of discrimination in public accommodations have been documented.
3. Presumption Against a Finding of Discrimination
In addition to the employment of the McDonnell Douglas framework and contractual requirements, courts use a variety of methods to evaluate the evidence of race discrimination in public accommodations cases and ultimately dismiss the cases. The courts effectively create a presumption against a finding of discrimination.
Crediting the Place of Public Accommodation’s Evidence
At times, courts will credit the defendant’s evidence as dispositive in public accommodations cases. For example, in a case against Marriott, the plaintiff who was Egyptian American and Muslim alleged that the hotel discriminated against her on the basis of her race and religion by refusing to give her a room.
In another case, this one involving a restaurant, a court decided similarly to the Fifth Circuit. There, Black plaintiffs alleged that they were denied seating in the main dining room of Sam and Harry’s restaurant because of their race.
In a final example, a plaintiff who looked to be of Middle Eastern descent was taken off an American Airlines plane, and the airline decided not to rebook him on a flight.
Suspicious Behavior
In some cases, courts grant summary judgment finding a plaintiff’s behavior suspicious even though that same behavior by a White person may not be considered suspicious. In a case against American Airlines, six plaintiffs of Iraqi descent presented evidence that customers questioned their presence prior to boarding.
Lack of Direct Evidence of Discrimination
Courts may dismiss cases on motions to dismiss or summary judgment where there is evidence of racist remarks. Not surprisingly, then, when defendants do not mention race, courts can be reticent to permit claims to go forward. In a case against Southwest Airlines, the plaintiff—a Black man—and his fiancée each boarded a plane with the appropriate carry-on bags.
In a case against Bob Evans, the court again required racist comments. A Black plaintiff and his daughter asked for a table in the front of the restaurant but were given a back table.
Insufficient Evidence of Discrimination
Courts also often dismiss Title II and Section 1981 claims on the basis that insufficient evidence of discrimination exists. In one Title II and Section 1981 case brought against McDonald’s, a Black customer bought a cup of coffee and sat at a large table.
[A] manager’s decision to show some preference for a group of diners who have yet to order over a single diner who already has been served and has had ample time to finish his coffee, does not evidence discrimination, absent some more telling conduct, such as abusive language or outright hostility.
In another Title II and Section 1981 case, this time against a hotel, a court ordered summary judgment for the hotel after the Black plaintiffs were evicted, arrested, and imprisoned.
In a final example that again involved McDonald’s, the evidence included: a McDonald’s manager treating the Black plaintiff with contempt, the plaintiff being prevented from eating inside the McDonald’s, the plaintiff then being falsely arrested, and six witnesses supporting her description of her treatment.
Although these observations may be entirely compatible with a race-based animus, there simply is no foundation for an inference that [the manager] harbored a racial animus toward [the plaintiff] or anyone else, absent some probative evidence that [the manager’s] petulance stemmed from something other than a race-neutral reaction to the stressful encounter plainly evidenced in the summary judgment record . . . .
4. Claims That Survive
Some Title II and Section 1981 claims survive dismissal by courts on motions for summary judgment or motions to dismiss. Many of these cases fall into two categories: forced removal from a place and denial of service. Beyond these categories, a small minority of courts have occasionally permitted some additional claims to go forward. These other categories will be discussed in the next Section.
Forced Removal
When plaintiffs are removed from a place of public accommodation, courts sometimes permit their cases to move forward. In a Title II and Section 1981 case against Dave & Buster’s, Black patrons were ejected from the restaurant after they complained of discriminatory treatment.
In another case, this time against a store, plaintiffs of Arabic/Middle Eastern descent used a firearm range and then intended to shop at the accompanying store.
As a final example, when a Black plaintiff alleged she was kicked off a Greyhound bus by a White bus driver because of her race, the court denied summary judgment on her Section 1981 claim: “Her travel contract was terminated by Greyhound when she was not permitted to reboard the bus.”
Denial of Service
In some cases where the company denies service, courts permit the lawsuits to move forward. In a case against Northwest Airlines, Muslim men of Middle Eastern descent were not permitted to board a flight allegedly because of their race.
In a case against the grocery store Jewel, a Black plaintiff filed a Section 1981 claim after he was not allowed to make purchases and was subsequently arrested for alleged theft; those charges were dismissed.
In another case that involved the denial of service, the Sixth Circuit reversed the district court’s grant of summary judgment on a Section 1981 claim.
III. Has the Law Been Interpreted Correctly?
Courts have interpreted Title II, Section 1981, and Section 1982 to cover only a narrow set of discriminatory behavior in public accommodations cases. In one decision where surveillance based on race was permitted, the Eighth Circuit noted that it was simply engaging in statutory interpretation, not making policy. “[W]e do not express the view (as suggested by plaintiffs’ counsel at oral argument) that a certain level of race discrimination in retail establishments is ‘acceptable.’”
A. Title II
1. Legislative History
Title II’s legislative history shows Congress intended the Act to ensure people of color would receive access to places of public accommodation. In 1963, in his submission to Congress about public accommodations, President John F. Kennedy stated that “no action is more contrary to the spirit of our democracy and Constitution—or more rightfully resented__ __by a Negro citizen who seeks only equal treatment—than the barring of that citizen from restaurants, hotels, theatres, recreational areas and other public accommodations and facilities.”
The first version of H.R. 7152, which was an early draft of the Civil Rights Act of 1964, described the inability of racial minorities “to obtain adequate lodging accommodations” and stated that “they may be compelled to stay at hotels or motels of poor and inferior quality.”
A subcommittee of the House Judiciary Committee held hearings thereafter. Committee Chairman Emanuel Cellar introduced the hearings by referring to the problem of denial of “access.”
The next version of H.R. 7152 eliminated the findings, excluded retail stores, and included the following broad language: “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.”
Following the January 1964 House Rules Committee hearings, H.R. 7152 was adopted by the House. It featured major amendments, but the main language remained unchanged.
Although its legislative history emphasizes the denial of access,
2. The Language of Title II
The most significant evidence of the intended scope of Title II is the language of the statute that Congress enacted.
Among other sources, the Supreme Court has used the Webster’s and the Oxford English dictionaries (hereinafter “Webster’s” and “Oxford”) to understand the meaning of words set forth in statutes.
The current Webster’s states that “full” means “complete especially in detail, number, or duration,” using “full share” as an example.
Further, the current Webster__’__s states that “equal” means “like in quality, nature, or status.”
Finally, the current Webster’s states that “enjoyment” means “possession and use” and uses “the enjoyment of civic rights” as an example.
These definitions of “full,” “equal,” and “enjoyment” give a consistent picture of what the text of the statute means. At minimum, places of public accommodation should give complete and like use and possession of the goods, services, etc. without discrimination and segregation.
Congress also included an expansive list of what a customer must receive without discrimination and segregation from a place of public accommodation. The patron should receive full and equal enjoyment of each of “the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation.”
The current Webster’s states that “goods” are things that are “manufactured or produced for sale.”
The current Webster’s defines “service” as “the work performed by one that serves.”
The current Webster’s defines “facilities” as things “that [make] an action, operation, or course of conduct easier.”
The current Webster’s defines “privilege” as “a right or immunity granted as a peculiar benefit, advantage, or favor.”
The current Webster’s defines “advantage” as “a factor or circumstance of benefit to its possessor.”
Finally, the current Webster’s defines “accommodation” as “lodging, food, and services or traveling space and related services.”
These definitions of “goods,” “services,” “facilities,” “privileges,” “advantages,” and “accommodations” describe all of the benefits of the place of public accommodation. As a result of these words in the statute, a customer is entitled not just to “the goods and services.” They are entitled to all parts of the experience of the public accommodation and entitled to the “full and equal enjoyment” of them. Again, without giving meaning to all of these words, they would be superfluous.
Application to Public Accommodations Cases
Courts have largely interpreted Title II to require the contractual relationship set forth in Section 1981.
Courts have occasionally permitted cases to go forward by citing the “full and equal enjoyment” language in Title II. For example, a court relied on this language in a case where employees of a grocery store watched and followed plaintiff, made discriminatory accusations, forcibly restrained him, and searched his body.
A few examples illustrate the overly narrow reading that almost all courts have given to the “full and equal enjoyment” language. In the same case against Pizza Hut, other Black plaintiffs were given poor service, which included slow service and the White manager touching their pizza.
Indeed, a customer cannot fully and equally enjoy the “goods” of a store or the experience of shopping, which is necessary to procure “goods,” when employees follow them because of their race. Further, they cannot fully and equally enjoy the “services” of a store, which include the assistance of the employees, when employees follow or detain them because of their race.
Other language in the statute also supports this reading. Customers cannot have the full and equal enjoyment of use of the actual “facilities” of the store without discrimination when employees follow them. Moreover, they do not have the full and equal enjoyment of the “privileges” and “advantages” of the store—including being afforded space from the employees in their shopping—when they are followed and watched based on their race.
In addition to finding discriminatory surveillance legal, courts generally hold that a restaurant customer has no claim for discriminatory treatment if the customer can be served. Again, this is based on the idea that the restaurant has no contractual obligation beyond service and, again, courts do not examine the broad language of the statute. However, the text grants full and equal enjoyment of the “services, privileges, and advantages,” which would include equally fast service and good seating at a restaurant without discrimination.
As another example of the overly narrow reading courts give to “full and equal enjoyment,” courts generally state that service infused with discriminatory remarks is legal, again on the basis that the customer is entitled only to service, not good service. Here, the courts again disregard the broad language of Title II. The text grants the full and equal enjoyment of “services” without discrimination,
Other courts permit places of public accommodation to discriminate against or segregate Black and other people of color by holding as legal the following business actions: requirements to give identification, searches, cuffing, accusations of shoplifting, and general harassment and questioning. Again, the language of the statute provides for full and equal enjoyment of the place of public accommodation—which would not be satisfied when places of public accommodation discriminate against patrons by acting in this manner because of race.
The ADA’s Full and Equal Enjoyment Language
In interpreting statutes, courts have recognized the relevance of other legislative acts that use the same language.
Scholars have argued that courts have interpreted Title III of the ADA improperly to narrow coverage under the statute.
As an example of what it is meant by “full and equal enjoyment,” the Ninth Circuit required a theater to provide both wheelchair seating for the individual and an adjoining seat for his spouse.
In a restaurant, the seating arrangements for patrons who have disabilities also have to be similar to those for customers without disabilities. In one case, Starbucks’ seating arrangement required a plaintiff who was in a wheelchair to sit facing the wall.
If the courts employed the same interpretation for “full and equal enjoyment” under Title II as described under the above Title III law, several types of claims of discrimination would be illegal, including discriminatory surveillance, discriminatory slow service, and other discriminatory terms and conditions. If a person is subject to being followed and watched because they are Black, they cannot enjoy the public accommodation in the same manner as others who are White. Similarly, if a person is subject to slower service than another based on their race, they cannot enjoy the public accommodation to the same extent as the person of a different race who receives better service. If a person is subject to racist remarks or other discriminatory treatment, again they cannot enjoy a place of accommodation in the same way as those who are not of the same race.
Another Interpretation of Full and Equal Enjoyment
The interpretation of similar language in state statutes may have some probative value especially where the statutes were enacted for like purposes.
Several years later, the Michigan Supreme Court changed its interpretation of the statute, overruling Kassab. In that case, a Black physician was subjected to charges of unprofessional behavior and administrative hearings designed to discourage him from using the hospital facilities.
3. The Role of McDonnell Douglas
As described previously, courts adopted the McDonnell Douglas framework as a method to analyze discrimination claims under Title VII and later used this analysis for public accommodations claims under Title II (and Section 1981).
With that said, courts have already criticized McDonnell Douglas in the context of employment discrimination cases. They have said that this method has unnecessarily complicated the issue of whether discrimination occurred under the general language of Title VII.
There are several reasons not to require these similarly situated and pretext showings from McDonnell Douglas to govern public accommodations claims. First, assuming the general McDonnell Douglas test makes sense in any setting, it was created in the context of employment, which is very different from public accommodations cases where comparators likely will not be available as often.
Often in conjunction with McDonnell Douglas, courts also dismiss cases by crediting the employer’s evidence, labelling the plaintiff’s behavior as suspicious, and stating direct evidence of discrimination does not exist.
With that said, because many businesses may not be places of public accommodation under Title II—such as a retail store like Dillard’s—the more expansive coverage discussed in this Section has limited use. More importantly, the limited remedies under Title II also severely restrict the usefulness of a reasonable, more expansive reading of the statute. Plaintiffs cannot recover for any psychological injuries that they may suffer and may not receive punitive damages.
B. Section 1981
Because of the expansive scope of damages under Section 1981 and Section 1982, these statutes are currently more significant to plaintiffs than Title II in public accommodations cases.
1. Legislative History
The Civil Rights Act of 1866 was enacted “primarily” to counter the Black Codes that southern states had passed to keep Black people in the status of slaves after the passage of the Thirteenth Amendment.
Some years later, in 1989, in Patterson v. McLean Credit Union,
After the Supreme Court’s decision in Patterson, Congress reacted by broadening the scope of Section 1981 in the Civil Rights Act of 1991 (1991 Act). The legislative history of the 1991 Act provided that Section 1981 was “a critically important tool used to strike down racially discriminatory practices in a broad variety of contexts.”
2. The Meaning of “Make and Enforce Contracts” in Section 1981
Years after the enactment of the 1991 amendment to Section 1981, the Supreme Court discussed who was covered under Section 1981. It stated the statute “offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.”
Before and after the amendment to Section 1981, courts have narrowly interpreted the “make and enforce contracts” language. This is because of their circumscribed beliefs about the meaning of the language. The courts have concluded that “make and enforce contracts” is coterminous with the limitations of common law contract law.
But the legislative history and the language before and after the 1991 amendments show this contract-restricted interpretation is not supported. There is no reference to the common law of contract in Section 1981 or in the legislative history. While the common law can be used to interpret federal statutes,
The Supreme Court’s interpretation of Section 1981 before the 1991 amendment requires nondiscriminatory terms in offers to contract. Simply employing this jurisprudence, stores would be liable for discriminatory surveillance and detention and restaurants would be liable for discriminatory service; they offer to contract on only discriminatory terms. By watching a Black patron as they shop, the merchant offers “to make” a contract with that person on only discriminatory terms—that is, they cannot buy an item without being watched based on their race. Similarly, by giving a Black patron slower or worse service, a restaurant, bank, or store offers to make a contract on only discriminatory terms. For example, when a person goes to Smith and Wollensky, they go there for a variety of reasons. This can include the food, the atmosphere, and the service, and they pay for those benefits through a hefty price. If Black customers are seated in the back or given slow or other bad service, they have been offered a contract on different terms than White customers.
Further, “to make a contract” naturally is a phrase that includes the process of contracting, similar, for example, to the phrase “to make a cake,” which includes the process of making the cake. Just like a cake cannot be made without putting together the ingredients and baking the cake, the contract to buy cannot be made without the process of, for example, looking for and choosing an item or going to a restaurant and being seated.
The amended language defining “make and enforce contracts” to mean “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship” gives additional reason for courts to find that discriminatory actions by merchants against customers are illegal. While courts have interpreted this language broadly in the employment context, as described above, they have continued to limit the language to encompass only the traditional common law contractual relationship in the settings of public accommodations. For example, they have asserted that Section 1981 is irrelevant until the buyer picks an item to purchase or offers to contract. If Congress had intended this limitation, it could have made this clear by reference to the common law of contract or, for example, by use of offer and acceptance. The current interpretation ignores the “making” language in the statute. The current Webster’s states that “making” means “the act or process of forming, causing, doing, or coming into being.”
There is another way to think about this. “Making” refers to the time period before and the time when the contract is made. “Performance” and “modification” refer to the time period after the contract is made. Thus, any discriminatory behavior in the pre-formation of the contract is covered, as well as in the contractual relationship itself. However, courts have asserted that liability does not occur unless a contract is blocked by discriminatory surveillance or other discriminatory treatment and have otherwise narrowly interpreted what it means to “block.” But the language of Section 1981 does not require that the contract is blocked. It covers discriminatory terms and conditions in the offer to contract,
With that said, the Supreme Court has held that Section 1981 protects against the discriminatory impairment of contracts as well. All of the actions on the basis of race that have been held legal—such as surveillance, slow service, racist remarks, worse seating or rooms, requiring identification, searching, cuffing, accusations of shoplifting, general harassment, and questioning—would block or impair contracts.
Let us address if Section 1981 were to properly encompass only the common law of contracts. If common law contract law limits Section 1981, the scope of coverage for discrimination by stores is different than discrimination by restaurants. If discrimination by stores were limited in this manner, there would be no significant arguments for coverage before the product is chosen in a store or after the customer pays for the product in the store.
3. The Meaning of the “Enjoyment of All Benefits, Privileges, Terms, and Conditions of the Contractual Relationship” Under Section 1981
In addition to the expansive “making, performance, modification, and termination of contracts” language in the amended Section 1981, there is the promise of “the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
The 1991 amendment to Section 1981 arguably made Section 1981 equivalent in scope to Title II, which gives further reason for a broad reading of Section 1981. In Patterson, the Supreme Court contrasted the expansive coverage of the Civil Rights Act of 1964 with the more limited language in Section 1981.
While courts should cite the broad enjoyment language in Section 1981(b) in support of discrimination claims, most do not. The following cases are exceptions. In one case, White employees of a restaurant served Black plaintiffs a fly-infested meal.
Similarly, in another case, a court generally cited the Section 1981(b) language in denying the defendant’s dismissal motion.
And, in a case involving American Airlines, after the Black plaintiff was upgraded to first class, a White flight attendant discriminated against him.
Similarly, Delta Airlines searched the bags of an Iranian American and prohibited him from bringing his appropriately sized carry-on bags with him.
The broad statutory language can also support hostile treatment claims. One scholar, Professor Singer, has persuasively argued that the amendment to Section 1981 in the 1991 Act must affirmatively protect against racial harassment by retail stores. He stated, “It defies reason to believe that Congress intended to prohibit racially discriminatory harassment on the job but found harassment of customers in retail stores to be perfectly fine.”
As mentioned previously, only a few courts have recognized claims for hostile treatment.
Again, as illustrated here, the broad language in Section 1981 should cover a variety of actions on the basis of race that courts have held legal—such as surveillance, slow service, racist remarks, worse seating or rooms, requiring identification, searching, cuffing, accusations of shoplifting, general harassment, and questioning.
4. The Meaning of the “Full and Equal Benefit of All Laws and Proceedings for the Security of Persons and Property” Under Section 1981
Finally, Section 1981(a) includes the right “to the full and equal benefit of all laws and proceedings for the security of persons and property.”
At the same time, select courts have permitted such claims. The Sixth and Second Circuits, along with a few trial courts, have recognized a claim against private actors under this clause.
In a case within the Second Circuit, the importance of this additional protected activity is also shown. There, upon exiting the store, Black customers had to show their receipts, and White customers did not.
In a final example, a federal district court in Kansas granted summary judgment on the Section 1981 contractual claim against the Buckle because the plaintiffs, both Black, had not shown an intent to make a specific purchase before they were detained, and thus they were not prevented from making a purchase.
With this stated, the best reading of the statute supports the reading that there is no additional claim against private parties under this provision. Although Section 1981(c) states that the rights apply to both governmental and non-governmental entities, the text of the right to the “full and equal benefit of all laws and proceedings for the security of persons and property” appears to apply only to governmental entities that make laws and have proceedings. This understanding is consistent with the words that precede the full and equal benefit language. These words refer to the process of enforcement of laws—"to sue, be parties, give evidence”—which the state enforces.
5. Section 1982
Section 1982 has relevance in public accommodations cases against retail stores. As previously discussed, courts have interpreted it in the same restrictive manner as Section 1981. The language of Section 1982 provides: “All citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to . . . purchase . . . [and] hold . . . personal property.” Unlike Section 1981, Congress did not amend Section 1982 in the 1991 Act. Regardless of this fact, when retail stores engage in discrimination on the basis of race by watching, following, stopping, or detaining Black and other people of color, they interfere with those individuals’ equal rights to purchase and hold personal property that Section 1982 protects. Because of these actions by retail establishments, people of color may not shop at the stores, they may leave before making purchases, and they may be placed in significant stress when in the store. Courts should recognize that Section 1982, like Section 1981, provides a vibrant statutory basis to counter such race discrimination by retail stores.
C. Rethinking the Meaning of Equality Under the Statutes
To date, in the vast majority of circumstances, the courts have effectively decided that the law entitles people only to access—admittance or service—in places of public accommodation because the rest of the discrimination is not bad enough. This form of Jim Crow where people of color can be subject to surveillance in retail stores and inferior service in places such as restaurants, hotels, banks, and airplanes discriminates against and segregates people of color. People of color can be followed around stores.
When Congress enacted the Civil Rights Act of 1866 and the Civil Rights Act of 1964, it sought to guarantee equal treatment for Black and other people of color who had faced slavery and widespread discriminatory treatment. Now, by courts’ interpretation of these statutes, these groups have continued to be subjugated to inferior conditions in everyday life. The law guarantees equal treatment in broad language. There is no such equality when you can be admitted or served but otherwise treated differently. By allowing this discriminatory behavior to continue unchecked, courts permit people of color to be treated in a manner analogous to the circumstances under Jim Crow.
In Katzenbach v. McClung, Ollie’s Barbecue did not serve Black people in the dining room.
Conclusion
The courts’ interpretations of Title II, Section 1981, and Section 1982 have helped to create a customer caste whereby people of color are subject to legal, inferior, discriminatory treatment on a daily basis. In this post-Jim Crow world, this legal treatment looks alarmingly similar to some of the conditions in the 1960s before Title II was enacted.
This jurisprudence has been unnecessarily narrow.
Courts’ current interpretation of Title II and the limited remedy of injunctive relief makes Title II ineffective. Lawyers know that these claims are difficult to win and the pay-off for clients is low. Early in the life of the analogous statute of Title VII, the Supreme Court recognized that injunctive relief would not motivate an employer. “If employers faced only the prospect of an injunctive order, they would have little incentive to shun practices of dubious legality.”
Section 1981 has both broad language—not limited by the common law of contract—and expansive remedies. Section 1982 also has broad language and expansive remedies. Courts need to recognize this and permit these claims to go to juries. Congress can help by passing an amendment to clarify the broad coverage of the statutes.
Change in the courts and by Congress is necessary to help eliminate discrimination by businesses that have created a customer caste and has relegated Black and other people of color to positions of legal inferiority.
DOI: https://doi.org/10.15779/Z38HT2GC4S.
Copyright © 2021 Suja A. Thomas, Peer and Sarah Pedersen Professor of Law, University of Illinois College of Law. Thanks to Julian Birnbaum, Brooke Coleman, Ruth Colker, John Colombo, Heather Dalmage, Margareth Etienne, Matthew Hartzler, Anita Krishnakumar, Sachin Pandya, Elizabeth Sepper, Joseph William Singer, Sandra Sperino, Charles Tabb, Ingrid Wuerth, and Rebecca Zietlow for comments on drafts of this article. Thanks also to Joby Celoza and Pauline Nguyen, my research assistants at the University of Chicago Law School, Gianna Santoro, a student at the University of Chicago Law School, Marie Cahill Johnson and Sree Rao, my research assistants at the University of Illinois College of Law, and Molly Lindsey, my assistant at the University of Illinois College of Law.
- See Joe R. Feagin, The Continuing Significance of Race: Antiblack Discrimination in Public Places, 56 Am. Socio. Rev. 101, 101 (1991); Anne-Marie G. Harris, Geraldine R. Henderson & Jerome D. Williams, Courting Customers: Assessing Consumer Racial Profiling and Other Marketplace Discrimination, 24 J. Pub. Pol’y & Mktg. 163, 163 (2005). Some may find offensive the language that is employed in cases discussed in this Article. The explicit language is used for the reader to understand the alleged discrimination and then, evaluate the courts' determinations as to whether discrimination occurred. ↑
- While this Article focuses on discrimination against Black people, other groups also face discrimination in public accommodations. See Harris et al., supra note 1, at 163. ↑
- Matt Stevens, Starbucks C.E.O. Apologizes After Arrests of Two Black Men, N.Y. Times (Apr. 15, 2018), https://www.nytimes.com/2018/04/15/us/starbucks-philadelphia-black-men-arrest.html [https://perma.cc/8939-CMBY]. This type of discrimination is well documented. See, e.g., Zachary W. Brewster, Racially Discriminatory Service in Full-Service Restaurants: The Problem, Cause, and Potential Solutions, 53 Cornell Hosp. Q. 274, 274–76 (2012) (describing studies and polls). ↑
- Mihir Zaveri, Doubletree in Portland Fires 2 Employees After Kicking Out Black Man Who Made Call From Lobby, N.Y. Times (Dec. 28, 2018), https://www.nytimes.com/2018/12/28/us/black-man-kicked-out-hotel-portland.html [https://perma.cc/2LTC-7MDB]. ↑
- See Shaun L. Gabbidon, Racial Profiling by Store Clerks and Security Personnel in Retail Establishments: An Exploration of “Shopping While Black,” 19 J. Contemp. Crim. Just. 345, 349 (2003); Devah Pager & Hana Shepherd, The Sociology of Discrimination: Racial Discrimination in Employment, Housing, Credit, and Consumer Markets, 34 Ann. Rev. Socio. 181, 191 (2008); Matthew Haag, Nordstrom Rack Apologizes to Black Teenagers Falsely Accused of Stealing, N.Y. Times (May 8, 2018), https://www.nytimes.com/2018/05/08/business/nordstrom-black-men-profiling-shopping.html [https://perma.cc/Q6N7-UMMS]. Retail stores use other methods to discriminate, including locking up products commonly used by people of color. See, e.g., Anne D’Innocenzio, CVS, Walgreens, WalMart Stop Locking Up Black Beauty, Hair Care Products, CBS Bos. (June 12, 2020), https://boston.cbslocal.com/2020/06/12/walmart-cvs-walgreens-black-hair-care-beauty-products-locked-up/ [https://perma.cc/J3WL-2QG6]. ↑
- See Combs v. Cordish Cos., 862 F.3d 671, 681–82 (8th Cir. 2017) (discussing hiring people to get in fights with “undesirables,” almost all of whom were Black); cf. Lior Jacob Strahilevitz, Information Asymmetries and the Rights to Exclude, 104 Mich. L. Rev. 1835, 1843–50 (2006) (discussing the bouncer’s right as the landowner’s right to discriminate in admitting and excluding from property). ↑
- Derrick Bell, Race, Racism, and American Law (6th ed. 2008); Joseph William Singer, We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom, 95 B.U. L. Rev. 929 (2015) [hereinafter Singer, We Don’t Serve Your Kind Here] (discussing current Mississippi statute that permits discrimination on any basis by public businesses, including hotels and restaurants); Joseph William Singer, The Anti-Apartheid Principle in American Property Law, 1 Ala. C.R. & C.L L. Rev. 91, 93–100 (2011) [hereinafter Singer, The Anti-Apartheid Principle] (discussing courts’ problematic interpretation of race discrimination in public accommodations under Section 1981 and Section 1982); Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283 (1996) [hereinafter Singer, No Right to Exclude] (discussing history of public accommodations law); see also Constance Dionne Russell, Note, Styling Civil Rights: The Effect of § 1981 and the Public Accommodations Act on Black Women’s Access to White Stylists & Salons, 24 Harv. BlackLetter L.J. 189, 198 (2008) (discussing discrimination against Black women by White stylists); Stephen E. Haydon, Comment, A Measure of Our Progress: Testing for Race Discrimination in Public Accommodations, 44 UCLA L. Rev. 1207, 1213 (1997) (discussing continued prevalence of discrimination in public accommodations); Nancy Leong & Aaron Belzer, The New Public Accommodations: Race Discrimination in the Platform Economy, 105 Geo. L. J. 1271, 1289–90 (2017) (recognizing continued discrimination against people of color in public accommodations). ↑
- Geraldine Rosa Henderson, Anne-Marie Hakstian & Jerome D. Williams, Consumer Equality: Race and the Marketplace 32 (2016) (discussing avoidance and annoyance discrimination existing in marketplace); Zachary W. Brewster, Michael Lynn & Shelytia Cocroft, Consumer Racial Profiling in U.S. Restaurants: Exploring Subtle Forms of Service Discrimination Against Black Diners, 29 Socio. F. 476, 477–78 (2014); Feagin, supra note 1, at 102; Peter Siegelman, Racial Discrimination in “Everyday” Commercial Transactions: What Do We Know, What Do We Need to Know, and How Can We Find Out?, in Urb. Inst., A National Report Card on Discrimination in America: The Role of Testing 69, 79 (Michael Fix & Margery Austin Turner eds., 1998). ↑
- 42 U.S.C. § 2000a. ↑
- Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 253 (1964). ↑
- Caitlin Knowles Myers, Marcus Bellows, Hiba Fakhoury, Douglas Hale, Alexander Hall & Kaitlin Ofman, Ladies First? A Field Study of Discrimination in Coffee Shops, 42 Applied Econ. 1761, 1762 (2010) (citing a 2004 Gallup poll that reported that over 25 percent of Black people said they were unfairly treated in stores and restaurants); Siegelman, supra note 8, at 80 (citing a 1997 Gallup poll that found that over 45 percent of Black people said they experienced discrimination in the last 30 days). Fewer studies on consumer markets, as compared to employment and housing markets, exist. Pager & Shepherd, supra note 5, at 191. ↑
- Harris et al., supra note 1, at 169 (demonstrating that real or perceived discrimination in public accommodations exists). ↑
- Brian K. Landsberg, Public Accommodations and the Civil Rights Act of 1964: A Surprising Success?, 36 Hamline J. Pub. L. & Pol’y, no. 1, 2015, at 1, 1 (“Title II gets little attention . . . .”); Siegelman, supra note 8, at 82–85 (noting that few cases involving public accommodations are brought due to the costliness of litigation or the limited gain from bringing a suit). ↑
- See Dyson v. Flagstar Corp., C.A. No. DKC-93-1503 (D. Md. Jan. 23, 2001); see also Stephen Labaton, Denny’s Restaurants to Pay $54 Million in Race Bias Suits, N.Y. Times, May 25, 1994, at A1 (describing suits that involved discrimination in refusal to admit, service, and payment). ↑
- See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1727 (2018). ↑
- Dennis Schaal, National Federation of the Blind Sues DOT on Airline Kiosk Access, Skift (Jan. 22, 2014), https://skift.com/2014/01/22/national-federation-of-the-blind-sues-dot-on-airline-kiosk-access/ [https://perma.cc/SK2G-95N5]. ↑
- Indeed, Samuel Bagenstos has stated, “There seems to be broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in ‘place[s] of public accommodation,’ was a remarkable success.” Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stan. L. Rev. 1205, 1206 (2014) (alteration in original) (footnote omitted). “[C]ompliance, it is said, came quickly and easily once the Supreme Court upheld the law late in 1964.” Id. Bagenstos recognizes that “the consensus is illusory.” Id. at 1207. He frames the debate based on libertarian challenges such as freedom of association. Id. For many years, Professor Joseph William Singer has been one of the only scholars to extensively examine race discrimination in public accommodations, focusing on discrimination by retail stores. See, e.g., Singer, We Don’t Serve Your Kind Here, supra note 7; Singer, The Anti-Apartheid Principle, supra note 7, at 93–100; Singer, No Right to Exclude, supra note 7; see also Joseph William Singer, Bethany R. Berger, Nestor M. Davidson & Eduardo Moisés Peñalver, Property Law 48–50 (7th ed. 2017); Tanya Katerí Hernández, Multiracials and Civil Rights: Mixed-Race Stories of Discrimination 67–75 (2018) (describing public accommodations cases involving mixed-race persons). ↑
- See, e.g., Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78 (2019) (summarizing history of sex in public accommodations law including issues related to LGBTQ rights); Klint W. Alexander, The Masterpiece Cakeshop Decision and the Clash Between Nondiscrimination and Religious Freedom, 71 Okla. L. Rev. 1069, 1069 (2019) (“U.S. courts have increasingly become the battleground for resolving disputes over discrimination against LGBT people in employment, education, housing, and public accommodations . . . .”); Trevor Crowley, Comment, Wheelchair Ramps in Cyberspace: Bringing the Americans with Disabilities Act into the 21st Century, 2013 BYU L. Rev. 651–52; Richard A. Epstein, Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right, 66 Stan. L. Rev. 1241, 1261 (2014). ↑
- *Leong & Belzer, supra note 7, at 1300, 1305 (“Many recent examples have not only expanded the class of people protected by public accommodation laws—for example, to include LGBTQ customers—but have also included expansion of the scope of the laws themselves.”); id.* at 1292, 1305–06 (describing studies and concluding that “discrimination prevalent in the old economy also infects the new”). ↑
- An earlier version of a public accommodations law—the Civil Rights Act of 1875—failed as unconstitutional. See The Civil Rights Cases, 109 U.S. 3, 9 (1883). ↑
- 42 U.S.C. § 1981. There is also an argument that the common law protects against public accommodations discrimination. See, e.g., Paul Vincent Courtney, Comment, Prohibiting Sexual Orientation Discrimination in Public Accommodations: A Common Law Approach, 163 U. Pa. L. Rev. 1497, 1524 (2015); A. K. Sandoval-Strausz, Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America, 23 Law & Hist. Rev. 53, 59–60 (2005); Singer, We Don’t Serve Your Kind Here, supra note 7, at 943 n.72; Singer, No Right to Exclude, supra note 7, at 1357–67. ↑
- 42 U.S.C. § 1982. ↑
- See, e.g., Lisa Gabrielle Lerman & Annette K. Sanderson, Comment, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N.Y.U. Rev. L. & Soc. Change 215, 238–62 (1978); Elizabeth Sepper, The Role of Religion in State Public Accommodations Laws, 60 St. Louis U. L.J. 631, 635–36 (2016). State and local laws against discrimination in public accommodations existed before the 1964 Act. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 259–60 (1964) (“[T]he constitutionality of such state statutes stands unquestioned.”). Some believe state and local coverage can be quite limited or a federal court will dismiss a state accommodations claim on the same basis that it would dismiss a federal claim. See Harris et al., supra note 1, at 165; Anne-Marie G. Harris, A Survey of Federal and State Public Accommodations Statutes: Evaluating Their Effectiveness in Cases of Retail Discrimination, 13 Va. J. Soc. Pol’y & L. 331, 338 (2006). Others believe that state and local coverage can be robust. See, e.g., Sepper & Dinner, supra note 18. Without an empirical analysis of state and local laws as well as an examination of lawsuits alleging violations of those laws, it is difficult to conclude who is correct. At minimum, the continued, prevalent existence of discrimination in public accommodations suggests that the laws have not significantly addressed the problem. With that said, plaintiffs sometimes use state law because of poor federal protection. For example, in Harrington v. Airbnb, Inc., the plaintiffs alleged that Airbnb discriminated against Black people through its mandatory photograph policy in violation of the Oregon Public Accommodations Act. 348 F. Supp. 3d 1085, 1090 (D. Or. 2018). This policy effectively allowed hosts not to rent to Black guests. Id. On the motion to dismiss, the court rejected the company’s reason—“that it tells a host whether a prospective guest is ‘reliable, authentic, and committed to the spirit of Airbnb’”—as not believable. Id. As an alternative to cases being brought in federal court, cases based on state and local law can be filed in state court. See Sarah B. Schlehr & Christa L. Riggins, Why Employment-Discrimination Cases Usually Belong in State Court, Advocate (June 2015), https://www.advocatemagazine.com/article/2015-june/why-employment-discrimination-cases-usually-belong-in-state-court [https://perma.cc/7Y9D-P8KC]. The effectiveness of state courts for discrimination claims is unclear. See id.; What is the Difference Between Filing My Lawsuit in Florida State Court Versus Federal Court for Employment Law Cases?, Scott Wagner & Assocs., P.A. (Dec. 20, 2016), https://www.floridalaborlawyer.com/what-is-the-difference-between-filing-my-lawsuit-in-florida-state-court-versus-federal-court-for-employment-law-cases/ [https://perma.cc/E5T4-8ZLA]. Some lawyers have expressed reluctance to bringing discrimination suits in state court. Schlehr & Riggins, supra. Reasons include that the cases take too long, that lawyers are more familiar with federal civil procedure than state procedure, that attorneys’ fees may not be available, that state courts follow federal caselaw, and that state civil procedure has additional roadblocks. Id. A different option exists in some localities. For example, where a business discriminated against the person, the city itself may be able to punish the company by a fine of $100 to $1000, without the victim bringing a lawsuit in court. See, e.g., City of Chicago Rules Implementing the Human Rights, Fair Housing, and Commission on Human Relations Enabling Ordinances §§ 520.100 & 235.420 (July 9, 2015); Comm’n on Hum. Rels., City of Chi., Dress Codes, Admittance Policies, and Public Accommodation Discrimination (2016), https://www.chicago.gov/content/dam/city/depts/cchr/AdjSupportingInfo/AdjFORMS/2016AdjForms/2016DressCodesHandout.pdf [https://perma.cc/9V2C-JF99]. ↑
- All cases found on Westlaw were reviewed except cases where the plaintiff proceeded pro se. For a discussion on the unique circumstances facing pro se plaintiffs, see, for example, Mitchell Levy, Comment, Empirical Patterns of Pro Se Litigation in Federal District Courts, 85 U. Chi. L. Rev. 1819 (2018) (assessing pro se reform). ↑
- See, e.g., Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1016–17 (2020). ↑
- Morse v. Republican Party of Va., 517 U.S. 186, 234 n.46 (1996). ↑
- See 42 U.S.C. § 2000a. ↑
- G. Edward White, The Origins of Civil Rights in America, 64 Case W. Rsrv. L. Rev. 755, 773–74 (2014). ↑
- Michelle Alexander, The New Jim Crow 20 (2012) (“As W.E.B. Du Bois eloquently reminds us, former slaves had ‘a brief moment in the sun’ before they were returned to a status akin to slavery. . . . Sunshine gave way to darkness, and the Jim Crow system of segregation emerged—a system that put black people nearly back where they began, in a subordinate racial caste.”); Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 899, 935 (2019). ↑
- Alexander, supra note 29, at 31; Goodwin, supra note 29, at 938. ↑
- See White, supra note 28 at 771–75; Henry Louis Gates, Jr., Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow (2019). Although important to understanding the Civil Rights Acts of 1866 and 1964, this Section does not intend to provide an expansive summary of the Reconstruction Era. For a detailed history of the Reconstruction Era, see, for example, Gates, supra; Jumpin’ Jim Crow: Southern Politics from Civil War to Civil Rights (Jane Dailey, Glenda Elizabeth Gilmore & Bryant Simon eds., 2000). ↑
- Sandoval-Strausz, supra note 21, at 58–59. ↑
- Civil Rights Act of 1866, Pub. L. No. 39-31, 14 Stat. 27 (codified as amended at 42 U.S.C. § 1981) (“[S]uch citizens . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens . . . .”); see also John Hope Franklin, The Civil Rights Act of 1866 Revisited, 41 Hastings L.J. 1135, 1142 (1990) (“The Civil Rights Act of 1866 undertook, moreover, to give substance and meaning to the thirteenth amendment.”). ↑
- 42 U.S.C. § 1981. ↑
- Id. § 1982. ↑
- The executive branch opposed the legislation and tried to undermine it. Cong. Globe, 39th Cong., 1st Sess. 1679–81 (1866) (President Andrew Johnson vetoing the Civil Rights Act of 1866). After its adoption, cases alleging racial discrimination were brought under the 1866 Act, and the Supreme Court upheld the constitutionality of the Act. See Blyew v. United States, 80 U.S. (13 Wall.) 581, 593 (1871) (holding that the Act was intended to protect Black people from the “prejudices [that] existed against the colored race, which naturally affected the administration of justice in the State courts”). ↑
- Sandoval-Strausz, supra note 21, at 58–59. ↑
- The Civil Rights Cases, 109 U.S. 3, 26 (1883). ↑
- Id. at 24 (holding that the Thirteenth Amendment relates only to slavery and involuntary servitude and that the denial of equality in public accommodations does not impose “any badge of slavery or servitude” and that protections may come from state law or through the Fourteenth Amendment). ↑
- See Singer, No Right to Exclude, supra note 7, at 1357–67. ↑
- Sandoval-Strausz, supra note 21, at 77 (“In legal terms, the ruling signaled the ascendance of individualism and property rights in American jurisprudence. In human terms, it meant the willing abandonment of black people to state and local authorities who could once again deny their claims of equality in public places; it also meant that such denials, no matter how systematic, were declared beyond the ability of the federal government to remedy.”). ↑
- Id. at 79. ↑
- H. M. Turner, The Barbarous Decision of the United States Supreme Court Declaring the Civil Rights Act Unconstitutional and Disrobing the Colored Race of All Civil Protection (1893). ↑
- See Frances L. Edwards & Grayson Bennett Thompson, The Legal Creation of Raced Space: The Subtle and Ongoing Discrimination Created Through Jim Crow Laws, 12 Berkeley J. Afr.-Am. L. & Pol’y 145, 154 (2010) (“The legal framework of segregation allowed states to draw territorial lines through properties that reinforced racial discrimination and the isolation of Black communities. Communities throughout the U.S. enacted laws that segregated the races through definition of space and property lines.”). ↑
- Birmingham, Ala., Code § 369 (1944); see also Jim Crow Laws – Martin Luther King, Jr. National Historical Park, Georgia, Nat’l Park Serv., https://www.nps.gov/malu/learn/education/jim_crow_laws.htm [https://perma.cc/8PCX-Y3LJ] (describing Jim Crow laws). The law went on to state “[a]ny person, who being the owner, proprietor or keeper or superintendent of any tavern, inn, restaurant or other public house or public place, or the clerk, servant or employee of such owner, proprietor, keeper or superintendent, knowingly permits a negro and a white person to play together or in company with each other at any game with cards, dice, dominoes or checkers, in his house or on his premises shall, on conviction, be punished.” Birmingham, Ala., Code § 597. ↑
- Va. Code § 1796a (Supp. 1926). For additional examples of statutes from this time period, see Jim Crow Laws, supra note 45. For example, a Georgia statute, with regard to barbers, stated: “No colored barber shall serve as a barber [to] white women or girls.” Id. (alteration in original). A Louisiana statute on housing stated: any person . . . who shall rent any part of any such building to a negro person or a negro family when such building is already in whole or in part in occupancy by a white person or white family, or vice versa when the building is in occupancy by a negro person or negro family, shall be guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than twenty-five ($25.00) nor more than one hundred ($100.00) dollars or be imprisoned not less than 10, or more than 60 days, or both such fine and imprisonment in the discretion of the court. Id. (alteration in original). A Mississippi statute on hospital entrances stated: “There shall be maintained by the governing authorities of every hospital maintained by the state for treatment of white and colored patients separate entrances for white and colored patients and visitors, and such entrances shall be used by the race only for which they are prepared.” Id. A North Carolina statute on separate militias stated: the white and colored militia shall be separately enrolled, and shall never be compelled to serve in the same organization. No organization of colored troops shall be permitted where white troops are available, and while white [sic] permitted to be organized, colored troops shall be under the command of white officers. Id. An Oklahoma statute on fishing, boating, and bathing provided that: “The [Conservation] Commission shall have the right to make segregation of the white and colored races as to the exercise of rights of fishing, boating and bathing.” Id. (alteration in original). A South Carolina statute on lunch counters stated: no persons, firms, or corporations, who or which furnish meals to passengers at station restaurants or station eating houses, in times limited by common carriers of said passengers, shall furnish said meals to white and colored passengers in the same room, or at the same table, or at the same counter. Id. Finally, a Virginia statute governing theaters provided that: every person . . . operating . . . any public hall, theatre, opera house, motion picture show or any place of public entertainment or public assemblage which is attended by both white and colored persons, shall separate the white race and the colored race and shall set apart and designate . . . certain seats therein to be occupied by white persons and a portion thereof, or certain seats therein, to be occupied by color persons. Id. (alteration in original). ↑
- Hall v. DeCuir, 95 U.S. 485, 500–01 (1877). ↑
- 163 U.S. 537, 550–51 (1896), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954). ↑
- 347 U.S. at 495. ↑
- See Edwards & Thompson, supra note 44, at 161 (“Brown v. Board of Education completely changed the legal and political landscape of the nation. . . . After the Brown decision, a new desegregated world began in theory, leading to eventual practice.”); Sandoval-Strausz, supra note 21, at 81–82 (describing how “[t]he pace of change quickened in the mid-1950s” after Brown and discussing the effect of demonstrations such as the Montgomery bus boycott). ↑
- Michael J. Klarman, Brown at 50, 90 Va. L. Rev. 1613, 1622–27 (2004) (explaining how, though the role of Brown has been contested, Brown played an influential role in the Civil Rights Movement in that it incited violence, which drew national attention and put these issues in the national spotlight); Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7, 44 (1994) (“When judicial desegregation orders led to school closures and race riots, or when civil rights demonstrations led to brutal suppression of peaceful protestors and mass incarcerations, southern businessmen came to appreciate that preservation of Jim Crow might be incompatible with continued economic growth . . . .”); Sandoval-Strausz, supra note 21, at 53 (“The Civil Rights Act of 1875 and the Supreme Court rulings in the Civil Rights Cases and especially in Plessy v. Ferguson were critical episodes in the career of Jim Crow in the nineteenth century, followed in the twentieth by the Montgomery bus boycott, the sit-ins, the Freedom Rides, and the Civil Rights Act of 1964.”); Harry T. Quick, Note, Public Accommodations: A Justification of Title II of the Civil Rights Act of 1964, 16 W. Res. L. Rev. 660, 662–63 (1965); Edwards & Thompson, supra note 44, at 145; see also Gavin Wright, Sharing the Prize: The Economics of the Civil Rights Revolution in the American South 258 (2013) (“Exertion of economic pressure over months and years brought reluctant acquiescence by local business groups. The surprisingly positive results of these local negotiations in turn unleashed a political dynamic within the business community that produced strong federal legislation far earlier than anticipated.”). ↑
- See, e.g., Judith Olans Brown, Daniel J. Givelber & Stephen N. Subrin, Treating Blacks as if They Were White: Problems of Definition and Proof in Section 1982 Cases, 124 U. Pa. L. Rev. 1, 2 (1975) (“Those sections lay virtually moribund for a hundred years, until they were revived in 1968 as a judicial contribution to the mid-twentieth century civil rights movement.” (footnote omitted)). Because of the Civil Rights Cases, for one hundred years, Section 1981 was interpreted to cover only state action. After Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), and Runyon v. McCrary, 427 U.S. 160 (1976), this interpretation changed. In the Civil Rights Act of 1991, Congress added explicit coverage of discrimination by non-state or private actors under Section 1981. See 42 U.S.C. § 1981; infra Part III.B.1. ↑
- Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 242 (1964). ↑
- Id. at 261. ↑
- Katzenbach v. McClung, 379 U.S. 294, 296–97 (1964). ↑
- Id. at 304. ↑
- See, e.g., Daniel v. Paul, 395 U.S. 298 (1969) (holding that a snack bar that served interstate travelers came under the purview of Title II). ↑
- 42 U.S.C. § 2000a. ↑
- See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 249 (1964); Stearnes v. Baur’s Opera House, Inc., 3 F.3d 1142, 1145 (7th Cir. 1993) (remanding case for dismissal because plaintiff, a Black male, did not notify state agency prior to bringing suit); Dunn v. Albertsons, No. 2:16–cv–02194–GMN–PAL, 2017 WL 3470573, at 4 (D. Nev. Aug. 10, 2017) (holding that a plaintiff bringing suit alleging discrimination in this context must give notice to state agency). If it occurs in a state that does not protect against discrimination, the matter may be referred to the Community Relations Service for attempted voluntary compliance. See* Guardians Ass’n v. Civ. Serv. Comm’n of the City of N.Y., 463 U.S. 582, 628 (1983) (Marshall, J., dissenting). ↑
- See Caldwell v. Klemz, No. 2:14-CV-455, 2017 WL 4620693, at 11 (N.D. Ind. Oct. 12, 2017); Chambers v. Simon Prop. Grp., No. 12-1179-EFM, 2013 WL 1947422, at 3 n.17 (D. Kan. May 10, 2013) (dismissing any potential Title II allegation as such allegation would require filing with Kansas which did not occur); Brown v. Whole Foods Mkt. Grp., 965 F. Supp. 2d 132, 138–39 (D.D.C. 2013) (finding that complaint was not properly filed within a year with D.C. Office of Human Rights), rev’d on other grounds, 789 F.3d 146 (D.C. Cir. 2015); Childs v. Extended Stay of Am. Hotels, No. 10-3781 (SRN/JJK), 2012 WL 2126845, at 1 (D. Minn. June 12, 2012) (dismissing Title II claim of one plaintiff because he did not file complaint with Minnesota); White v. Denny’s Inc., 918 F. Supp. 1418, 1423 (D. Colo. 1996) (granting defendant’s motion for summary judgment on Title II claim because administrative requirement was not met); Ghaznavi v. Days Inns of Am., Inc., No. 91 Civ. 4520 (MBM), 1993 WL 330477, at 3 (S.D.N.Y. Aug. 20, 1993) (holding that because no notice was given to a state agency, the Title II claim failed). Although courts have held that the notification requirement cannot be waived and is considered “jurisdictional,” see Hollis v. Rosa Mexicano DC, LLC, 582 F. Supp. 2d 22, 24 (D.D.C. 2008) (dismissing claim for failure to file with District of Columbia Human Rights Office); Stephens v. Seven Seventeen HB Phila. Corp. No. 2, No. CIV.A. 99-4541, 2001 WL 33464, at 1–5 (E.D. Pa. Jan. 11, 2001) (dismissing Title II claim because plaintiffs did not give notice to appropriate state or local agency); Halton v. Great Clips, Inc., 94 F. Supp. 2d 856, 860–61 (N.D. Ohio 2000) (dismissing claims where plaintiffs did not file with the state first), a recent ruling by the Supreme Court questions these holdings, see Fort Bend County v. Davis, 139 S. Ct. 1843 (2019). Some courts will even apply collateral estoppel to give preclusive effect to state administrative determinations. See, e.g., Macer v. Bertucci’s Corp., No. 13-CV-2994 (JFB)(ARL), 2013 WL 6235607, at 1 (E.D.N.Y. Dec. 3, 2013) (precluding Section 1981 claim based on administrative judge’s findings on state law claim). ↑
- 42 U.S.C. § 2000a(b). ↑
- See Singer, No Right to Exclude, supra note 7, at 1413–22 (discussing arguments regarding coverage of retail stores under Title II); Singer, We Don’t Serve Your Kind Here, supra note 7, at 942 (arguing federal judges should interpret Title II to include retail stores). ↑
- The language of the statute provides: each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action: (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence; (2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station; (3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and (4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment. 42 U.S.C. § 2000a(b). ↑
- See, e.g., Cruz v. WalMart Super Ctr., No. 5:16-cv-03665, 2017 WL 3727003, at 3 (E.D. Pa. Aug. 29, 2017); Harris, supra note 23, at 338; Singer, No Right to Exclude, supra note 7, 1413–22 (discussing arguments that might not be covered but concluding they are). Changes in interstate commerce might warrant the expansion of coverage to retail stores. Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 251 (1964); Singer, We Don’t Serve Your Kind Here, supra *note 7, at 936 (mentioning discriminatory surveillance and service). ↑
- Cf., e.g., Jackson v. Walgreens Co., No. 16-0398 (JRT/FLN), 2016 WL 4212258, at *2 (D. Minn. Aug. 10, 2016). ↑
- See Dunn v. Albertsons, No. 2:16–cv–02194–GMN–PAL, 2017 WL 3470573, at 4 (D. Nev. Aug. 10, 2017); Chu v. Gordmans, Inc., No. 8:01CV182, 2002 WL 802353, at 4 (D. Neb. Apr. 12, 2002) (holding that ½ Price Store was retail store not covered under Title II). ↑
- See, e.g., Ramirez v. Adventist Med. Ctr., No. 3:17–cv–831–SI, 2017 WL 4798996, at 5–6 (D. Or. Oct. 24. 2017); Dunk v. Brower, No. 07 Civ. 7087(RPP), 2009 WL 650352, at 6 (S.D.N.Y. Mar. 12, 2009) (holding that martial arts club was not shown to be a public accommodation under Title II). ↑
- See 1 Rodney A. Smolla, Federal Civil Rights Acts § 7:8 (3d ed. 2019). ↑
- See James v. Am. Airlines, Inc., 247 F. Supp. 3d 297, 305 (E.D.N.Y. 2017) (“Airplanes and other forms of transportation are not among the public accommodations listed in Title II.”); Kalantar v. Lufthansa German Airlines, 402 F. Supp. 2d 130, 138–39 (D.D.C. 2005) (holding that an airplane is not a public accommodation under Title II). Federal law prohibits airlines from discriminating on the basis of race and other characteristics. See 49 U.S.C. § 40127. However, there is no private right of action. The Department of Transportation can take action against the carrier including imposing a fine. See, e.g, Sara M. Moniuszko, Delta Air Lines Fined $50,000 for Kicking 3 Muslim Passengers Off Flights, USA Today (Jan. 27, 2020), https://www.usatoday.com/story/travel/airline-news/2020/01/27/delta-air-lines-fined-50000-discrimination-against-muslim-flyers/4587180002/ [https://perma.cc/8ZGC-9SPA]. ↑
- See Akyar v. TD Bank US Holding Co., No. 18-CV-379 (VSB), 2018 WL 4356734, at 1 (S.D.N.Y. Sept. 12, 2018); Hatcher v. Servis First Bank, No. 2:16-cv-01362-RDP, 2016 WL 7336403, at 3 (N.D. Ala. Dec. 19, 2016); Lowe v. ViewPoint Bank, No. 3:12–CV–1725–G (BH), 2014 WL 4631571, at 3 (N.D. Tex. Sept. 16, 2014); Eruchalu v. U.S. Bank, Nat’l Ass’n, No. 2:12–cv–01264–MMD–VCF, 2013 WL 6667702, at 7 (D. Nev. Dec. 17, 2013). ↑
- See Benjamin v. Am. Airlines, Inc., No. CV 213-150, 2015 WL 8968297, at 1 (S.D. Ga. Dec. 15, 2015); Abdallah v. JetBlue Airways Corp., No. 14-1050 (JLL)(JAD), 2015 WL 3618326, at 6 (D.N.J. June 9, 2015). ↑
- See Tenant v. Delta Airlines, Inc., No. Civ.A. 99-594, 1999 WL 387113, at *1 (E.D. Pa. May 28, 1999). ↑
- See Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 431–34 (4th Cir. 2006); see also Halton v. Great Clips, 94 F. Supp. 2d 856, 861–62 (N.D. Ohio 2000) (holding hair salon did not fall within Title II coverage). The dissent in Denny protested that the salon was covered under Title II. See 456 F.3d at 437–41 (King, J., dissenting). ↑
- See Rousseve v. Shape Spa for Health & Beauty, Inc., 516 F.2d 64, 65–68 (5th Cir. 1975) (holding as public accommodation a spa in which “[p]leasure and relaxation [were] stressed as perquisites of membership in the studio programs: ‘ . . . Have fun with our fabulous personalized exercise program. Swim and Luxuriate in the Whirlpool Baths. Invigorate. Ah! Luxury! . . .’” (third and fourth alterations in original)). ↑
- See United States v. Williams, 376 F. Supp. 750, 752 (M.D. Fla. 1974). ↑
- 42 U.S.C. § 2000a(e); see also Tillman v. Wheaton-Haven Recreation Ass’n, 410 U.S. 431, 440 (1973) (finding swimming club not exempt as private organization under Title II, Section 1981, or Section 1982); Wright v. Salisbury Club, Ltd., 632 F.2d 309 (4th Cir. 1980) (reversing judgment for club that excluded Black persons, finding club was not private); Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333, 1336 (2d Cir. 1974) (finding there to be “no plan or purpose of exclusiveness” where people who bought houses that belonged to former members automatically became members); Durham v. Red Lake Fishing & Hunting Club, Inc., 666 F. Supp. 954, 958–61 (W.D. Tex. 1987) (deciding fishing and hunting club was not private club within Title II and Section 1981). ↑
- See Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968); Capnord v. Fred’s, No. 4:15–CV–168–DMB–RP, 2017 WL 4448228, at 3 (N.D. Miss. Oct. 5, 2017) (granting defendant’s motion for summary judgment on the grounds that no damages are available under Title II). Injunctive relief is available only where there is a “real or immediate threat that the plaintiff will be wronged again—‘a likelihood of substantial and immediate irreparable injury.’” Brooks v. Collis Foods, Inc., 365 F. Supp. 2d 1342, 1351 (N.D. Ga. 2005) (citation omitted). See generally Ruth Colker, ADA Title III: A Fragile Compromise, 21 Berkeley J. Emp. & Lab. L. 377 (2000) (discussing limited remedies under Title III of the ADA). In addition to limited remedies, scholars have written about problems with the private attorney general model of enforcement of the civil rights laws. See, e.g., Ruth Colker, The Power of Insults, 100 B.U. L. Rev. 1, 46–51 (2020) [hereinafter Colker, The Power of Insults*] (discussing private attorney general model using the example of the ADA). ↑
- McLaurin v. Waffle House, Inc., 178 F. Supp. 3d 536, 565 (S.D. Tex. 2016). ↑
- See Hammad v. Dynamo Stadium, LLC, No. H-14-1938, 2015 WL 6965215, at 13 (S.D. Tex. Nov. 10, 2015) (finding plaintiff could not show future harm or continuing present effects); Woolford v. Rest. Concepts, II, LLC, No. 407CV011, 2008 WL 217087, at 3–4 (S.D. Ga. Jan. 23, 2008) (holding that Title II injunctive relief could not be given where Black plaintiffs had been subsequently served at restaurant and other Black customers had been served at the time they were not served); LaRoche v. Denny’s Inc., 62 F. Supp. 2d 1375, 1385 (S.D. Fla. 1999); Watson v. Fraternal Order of Eagles, 915 F.2d 235, 243 (6th Cir. 1990) (finding that injunctive relief may not be possible because “[t]hey have not demanded membership in Local 555 or its Ladies Auxiliary, nor have they demonstrated that it is likely that they intend to become guests of Local 555 in the future”); Callwood v. Dave & Buster’s Inc., 98 F. Supp. 2d 694, 709 n.9 (D. Md. 2000) (finding that, where there was no policy of discrimination, declaratory or injunctive relief would not be ordered). ↑
- See United States v. Glass Menagerie, Inc., 702 F. Supp. 139, 139–43 (E.D. Ky. 1988). Among other evidence was testimony of employees regarding the discriminatory practices. Id. ↑
- See Durham, 666 F. Supp. at 961; see also Johnson v. Brace, 472 F. Supp. 1056, 1060 (E.D. Ark. 1979) (finding for Black plaintiffs where they were denied membership on the basis of their race). In a case that went to trial, the court found that injunctive relief was appropriate where the Black plaintiff was forbidden from returning to a restaurant. Bivins v. Wrap it Up, Inc., No. 07-80159-CIV, 2007 WL 3047122, at 9 (S.D. Fla. Oct. 18, 2007); see also* Jackson v. Waffle House, Inc., 413 F. Supp. 2d 1338, 1365 (N.D. Ga. 2006) (finding injunctive relief possible where the Black plaintiff said he would return to Waffle House if it ended discriminatory practices); Robinson v. Power Pizza, Inc., 993 F. Supp. 1462, 1464–66 (M.D. Fla. 1998) (injunctive relief was appropriate where the company had not provided a legitimate reason for its decision not to deliver to a Black neighborhood). ↑
- See Henry v. Lucky Strike Ent., LLC, No. 10-CV-03682 (RRM)(MDG), 2013 WL 4710488, at *1. (E.D.N.Y. Sept. 1, 2013) (considering defendant’s testimony that plaintiff’s “jeans and jacket were loose-fitting” and that he “was also wearing a baseball cap”). ↑
- Id. at *12 (citation omitted). ↑
- Jackson, 413 F. Supp. 2d at 1352. Where plaintiffs have shown they have frequented a place multiple times, courts may order injunctive relief. In one case where such relief was ordered, the Black plaintiffs experienced discrimination by White employees on three occasions when they visited a Waffle House. See Thomas v. Freeway Foods, Inc., 406 F. Supp. 2d 610, 625–26 (M.D.N.C. 2005); Sherman v. Kasotakis, 314 F. Supp. 2d 843, 885 (N.D. Iowa 2004) (granting injunctive relief after trial where four Black plaintiffs sued restaurant). In another case, a hotel had allegedly discriminated when the White staff did not give the Black plaintiff his desired room. Trotter v. Columbia Sussex Corp., No. 08-0412-WS-M, 2009 WL 3158189, at 7–8 (S.D. Ala. Sept. 28, 2009). The plaintiff showed, among other things, that he had stayed at many Marriotts. Id.* ↑
- In Runyon v. McCrary, the Court discussed whether the “private club or other [private] establishment” exemption in the Civil Rights Act of 1964 “operates to narrow § 1 of the Civil Rights Act of 1866.” 427 U.S. 160, 172 n.10 (1976) (alteration in original). If the exemption applied, which the Court did not decide, it would be relevant only if the establishment is “not in fact open to the public.” Id. (citing 42 U.S.C. § 2000a(e)); see also Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 236 (1969) (finding that a community swimming pool was not a private social club where there was “no plan or purpose of exclusiveness”), abrogated by Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). ↑
- 42 U.S.C. §§ 1981, 1982. ↑
- Id. ↑
- See Singer, No Right to Exclude, supra note 7, at 1425–35 (arguing for an interpretation of Section 1981 that prohibits discrimination by retail stores). ↑
- 42 U.S.C. §§ 1981, 1982. ↑
- This is the time when all the witnesses to the circumstances surrounding the alleged discrimination would actually testify and be cross-examined. ↑
- McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see Sandra F. Sperino, Discrimination Statutes, The Common Law, and Proximate Cause, 2013 U. Ill. L. Rev. 1, 16. ↑
- *Fall v. LA Fitness, 161 F. Supp. 3d 601, 605 (S.D. Ohio 2016); see also Brooks v. Collis Foods, Inc., 365 F. Supp. 2d 1342, 1353 (N.D. Ga. 2005) (applying McDonnell Douglas framework). “Because there is little caselaw regarding Title II, courts frequently analyze Title II claims under Title VII jurisprudence.” Thymes v. AT&T Mobility Servs., LLC, No. 6:19-cv-00090, 2019 WL 1768311, at 11 (W.D. La. Mar. 19, 2019); see also Fahim v. Marriott Hotel Servs., 551 F.3d 344, 349 (5th Cir. 2008) (stating that because “there is but scant case law under Title II . . . [and] Title VII . . . has produced a good deal of case law,” courts in Title II cases “frequently borrow Title VII authority”). ↑
- Lindsey v. SLT L.A., LLC, 447 F.3d 1138, 1145 (9th Cir. 2006). There are other tests, but similarly situated people in a non-protected group are generally a part of the analysis. In the Seventh Circuit, a plaintiff must show that “(1) they are members of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., making and enforcing of contract).” Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996). For the tests used by other circuits, see Hammond v. Kmart Corp., 733 F.3d 360, 362 (1st Cir. 2013); Lopez v. Target Corp., 676 F.3d 1230, 1233 (11th Cir. 2012); Singleton v. St Charles Parish Sheriff’s Dep’t, 306 F. App’x 195, 197–98 (5th Cir. 2009); Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1101–02 (10th Cir. 2001); Gregory v. Dillard’s, Inc., 565 F.3d 464, 469 (8th Cir. 2009) (requiring “(1) membership in a protected class, (2) discriminatory intent on the part of the defendant, (3) engagement in a protected activity, and (4) interference with that activity by the defendant”). ↑
- *Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir. 2001); Allen v. CLP Corp., 460 F. App’x 845, 848–49 (11th Cir. 2012) (failing to find “evidence of markedly hostile conduct”); L. L. v. Evesham Twp. Bd. of Educ., 710 F. App’x. 545, 548–49 (3d Cir. 2017) (holding that in lending cases, comparator evidence is not necessary to show McDonnell Douglas violation); Brooks, 365 F. Supp. 2d at 1353–57; Callwood v. Dave & Buster’s, Inc., 98 F. Supp.2d 694 (D. Md. 2000). Many other courts have declined to adopt the hostile environment test either explicitly or otherwise. See Odunukwe v. Bank of Am., 335 F. App’x. 58, 61–62 (1st Cir. 2009); Lizardo v. Denny’s, Inc., 270 F.3d 94, 102 n.2 (2d Cir. 2001); Williams v. Staples, Inc., 372 F.3d 662, 667–68 (4th Cir. 2004); Dunaway v. Cowboys Nightlife, Inc., 436 F. App’x 386, 398–99 n.14 (5th Cir. 2011); Bratton v. Roadway Package Sys., 77 F.3d 168 (7th Cir. 1996); Lindsey, 447 F.3d at 1145; cf. Gregory*, 565 F.3d at 486–89 (8th Cir. 2009) (Murphy, J., dissenting) (discussing satisfaction of hostile environment standard). ↑
- Christian, 252 F.3d at 872. ↑
- Scott v. Thomas & King, Inc., No. 3:09-CV-147, 2010 WL 2630166, at 8, 10 (S.D. Ohio June 28, 2010) (quoting Christian, 252 F.3d at 871). ↑
- See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). ↑
- See id. at 804. ↑
- Allen, 460 F. App’x at 848–49; Dunaway, 436 F. App’x at 398–99; Shumate v. Twin Tier Hosp., LLC, 655 F. Supp. 2d 521, 537 (M.D. Pa. 2009); Perry v. Petco Animal Supplies Stores, Inc., No. 1:07-CV-2281-ODE-CCH, 2008 WL 11417088, at *5 (N.D. Ga. Mar. 27, 2008); Feacher v. Intercontinental Hotels Grp., 563 F. Supp. 2d 389, 402 (N.D.N.Y. 2008); O’Neill v. Gourmet Sys. of Minn., Inc., 213 F. Supp. 2d 1012, 1022 (W.D. Wis. 2002); LaRoche v. Denny’s Inc., 62 F. Supp. 2d 1375, 1385 (S.D. Fla. 1999); Hill v. Shell Oil Co., 78 F. Supp. 2d 764, 777–78 (N.D. Ill. 1999); Stevens v. Steak n Shake, Inc., 35 F. Supp. 2d 882, 887 (M.D. Fla. 1998). ↑
- See supra Part II.A.1; see also Watson v. Fraternal Order of Eagles, 915 F.2d 235, 239–42 (6th Cir. 1990) (comparing Title II and Section 1981). ↑
- Scott, 2010 WL 2630166, at *10. ↑
- Id. at *2–4. ↑
- Id. at *2. ↑
- Id. at *3. ↑
- Id. at *10. ↑
- Id. ↑
- Scott, 2010 WL 2630166, at *10. ↑
- Gennell v. Denny’s Corp., 378 F. Supp. 2d 551, 558–59 (D. Md. 2005). ↑
- Id. at 555. ↑
- Id. ↑
- Id. at 559. ↑
- .Id.; see also Hill v. U.S. Airways, Inc., No. 08-14969, 2009 WL 4250702, at 1–4 (E.D. Mich. Nov. 25, 2009) (granting summary judgment where other passenger received different treatment but was not similarly situated); Dozier v. Waffle House, Inc., No. 1:03-CV-3093-ODE, 2005 WL 8154381, at 5–6 (N.D. Ga. May 4, 2005) (finding no evidence of customary practice of greeting at times when no host is on duty, which plaintiffs claimed they were denied ). ↑
- Gennell, 378 F. Supp. at 559. ↑
- White v. Denny’s Inc., 918 F. Supp. 1418, 1421 (D. Colo. 1996). ↑
- See id. at 1425–29; see also Jackson v. Waffle House, Inc., 413 F. Supp. 2d 1338, 1364 (N.D. Ga. 2006) (finding that plaintiff failed to show that White patrons were not treated similarly); McCoy v. Homestead Studio Suites Hotels, 177 F. App’x 442, 445 (5th Cir. 2006) (plaintiffs did not show that non-Chinese patrons were treated differently). ↑
- **Sherman v. Marriott Hotel Servs., 317 F. Supp. 2d 609, 612 (D. Md. 2004). ↑
- Id. at 613 ↑
- See id. at 615; see also Wells v. Burger King Corp., 40 F. Supp. 2d 1366, 1367 (N.D. Fla. 1998) (ordering summary judgment against Burger King customers because “[a]s described by [the employees], the events . . . unfolded somewhat differently”). In another case against Marriott, after a dispute about the payment of an eighteen-dollar breakfast, a Black couple resolved that the charge would be added to their final bill. Perkins v. Marriott Int’l, Inc., 945 F. Supp. 282, 283–84 (D.D.C. 1996). Subsequently, the hotel locked the couple out of their room and searched their belongings. Id. at 284. In ordering summary judgment, the court decided the plaintiffs had not offered evidence that a couple not of their race would be treated differently and could not show that the actions were motivated by race. Id. at 286–87. The court also would not consider evidence that non-White customers had complained about discriminatory treatment. See id. ↑
- See supra note 94. ↑
- *Scott v. Thomas & King, Inc., No. 3:09-CV-147, 2010 WL 2630166, at 10 (S.D. Ohio June 28, 2010). ↑
- Id. Many books and articles discuss why using this type of language is race discrimination. See, e.g., Jane H. Hill, The Everyday Language of White Racism (2008); Derald Wing Sue, Christina M. Capodilupo, Gina C. Torino, Jennifer M. Bucceri, Aisha M. B. Holder, Kevin L. Nadal & Marta Esquilin, Racial Microaggressions in Everyday Life: Implications for Clinical Practice, 62 Am. Psych. 271 (2007). ↑
- Scott, 2010 WL 2630166, at *10. ↑
- Id. In another Title II and Section 1981 case applying the alternative hostile treatment standard, the court first recognized the difficulty of the similarly situated requirement. O’Neill v. Gourmet Sys. of Minn., Inc., 213 F. Supp. 2d 1012, 1020 (W.D. Wis. 2002). There, the fifty-six-year-old plaintiff alleged that Applebee’s would not serve him alcohol upon his presenting Native American tribal identification. Id. at 1015–16. The court stated that “[p]laintiff would be forced to uncover incidents in which white customers were served alcohol although they could not show one of the identification documents on defendants’ approved list. Although it is not an impossible requirement to meet, it would be onerous.” Id. at 1020. Applying the alternative method of proof, the court stated the store’s policy requiring certain specified identification for people who appear to be thirty and younger was not “profoundly contrary to defendants’ financial interests or . . . facially arbitrary.” Id. at 1021. Thus, the prima facie case for the hostile treatment claim was not met. Id. at 1020–21. ↑
- Scott, 2010 WL 2630166, at *2. ↑
- Id. at *10. ↑
- Lee v. Delta Air Lines, Inc., 38 F. Supp. 3d 671, 672–73 (W.D. Penn. 2014). ↑
- Id. at 673. ↑
- Id. at 674. ↑
- Id. at 676. ↑
- See id. at 678. ↑
- Id. at 676–77. ↑
- Id. at 677–78. ↑
- See McLaurin v. Waffle House, Inc., 178 F. Supp. 3d 536, 565 (S.D. Tex. 2016). ↑
- Id. at 541. ↑
- Id. at 549. ↑
- Id. at 541–42. ↑
- Id. at 542. ↑
- Id. ↑
- Id. ↑
- See id. at 545–52. ↑
- See id. at 552. ↑
- Id. at 549–50. ↑
- See id. at 547. ↑
- See id. at 542–33. ↑
- See Vaughn v. N.S.B.F. Mgmt., Inc., No. 95-CV-70282-DT, 1996 WL 426445, at 1 (E.D. Mich. Apr. 1, 1996), aff’d*, 114 F.3d 1190 (6th Cir. 1997). ↑
- See id. ↑
- See id. at *7. ↑
- See id. at *3. ↑
- See id. at *7. ↑
- See supra Part II.A.1. ↑
- See Patterson v. McLean Credit Union, 491 U.S. 164, 189 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, as recognized in CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008). ↑
- Civil Rights Act of 1991 § 101, 105 Stat. at 1072. ↑
- Brooks v. Collis Foods, Inc., 365 F. Supp. 2d 1342, 1358 (N.D. Ga. 2005) (quoting Charity v. Denny’s Inc., No. CIV A 98-0554, 1999 WL 544687, at *5 (E.D. La. July 26, 1999)). ↑
- Many of the claims in the McDonnell Douglas section above concern these more subtle claims outside of refusal to admit or serve. ↑
- See, e.g., Arguello v. Conoco, Inc., 330 F.3d 355, 359–60 (5th Cir. 2003). ↑
- See id. at 360–61; Eddy v. Waffle House, Inc., 482 F.3d 674, 678 (4th Cir. 2007), vacated, 554 U.S. 911 (2008) (mem.). ↑
- See Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996) (concluding that Black plaintiffs had no valid claim where “[t]hey were denied neither admittance nor service, nor were they asked to leave the store”); Watson v. Fraternal Order of Eagles, 915 F.2d 235, 243 (6th Cir. 1990) (finding actionable Section 1981 claim where Black plaintiffs were asked to leave to prevent club from selling soft drink to a Black patron, for refusal to serve could be accomplished by asking plaintiffs to leave). ↑
- See Brewster et al., supra note 8, at 479. ↑
- Morris, 89 F.3d at 411–12. ↑
- Id. In the Fifth Circuit, in a similar case against Coach, a Black plaintiff alleged that she was asked to provide identification to use her credit card while White shoppers were not. Scott v. Coach, Inc., No. 08-0443-CV-W-HFS, 2009 WL 3517670, at 1 (W.D. Miss. Oct. 26, 2009). The court dismissed the case on summary judgment. Id.* ↑
- Morris, 89 F.3d at 415. ↑
- Id. at 414. ↑
- Id. at 415. ↑
- Id. at 413; see also Harris et al., supra note 1, at 164 (“Given that most courts interpret it similarly, [Section 1982] does not provide more effective relief than Section 1981.”); Runyon v. McCrary, 427 U.S. 160, 190 (1976) (Stevens, J., concurring) (“[I]t would be most incongruous to give those two sections a fundamentally different construction.”). ↑
- Morris, 89 F.3d at 415. ↑
- Chambers v. Simon Prop. Grp., No. 12-1179-EFM, 2013 WL 1947422, at *1 (D. Kan. May 10, 2013). ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. at *3. ↑
- Hampton v. Dillard Dep’t Stores, Inc., 985 F. Supp. 1055, 1059–60 (D. Kan. 1997), aff’d, 247 F.3d 1091, 1118 (10th Cir. 2001) (agreeing with the district court about the scope of the statute’s protections). Similarly, in another case against Dillard’s, a group of Black plaintiffs alleged that the store engaged in discriminatory surveillance in violation of Section 1981. Gregory v. Dillard’s, Inc., 565 F.3d 464, 466–67 (8th Cir. 2009). The Eighth Circuit en banc affirmed the dismissal at the motion to dismiss stage. Id. Where such discriminatory action did not “block” making a purchase, it was not illegal under the statute. Id. 472–76. The court stated that “[r]acially biased watchfulness, however reprehensible, does not ‘block’ a shopper’s attempt to contract” and cited several cases supporting the concept that there is no claim unless an item is picked for purchase. Id. at 470, 472. Examples of illegal behavior, the court noted, include asking a customer to leave the store or refusing service. Id. at 481. Most recently, the Eighth Circuit made the limited reach of the law clear by saying “[m]erely entering a retail establishment is not a protected activity under § 1981 as the mere expectation of being treated without discrimination while shopping is not enough.” Withers v. Dick’s Sporting Goods, Inc., 636 F.3d 958, 963 (8th Cir. 2011). In this case against Dick’s Sporting Goods, the Black patrons were under the constant surveillance of the White store employees on the two occasions they went to the store. Id. at 961–62. However, the court found no discrimination because the store did not prevent them from purchasing any items. See id. at 965–66. As the court stated, “we have clearly established that discriminatory surveillance by a retailer, or mere offending conduct, does not demonstrate interference with a protected activity and any allegations of such activity are insufficient to state a claim . . . .” Id. at 965. A contractual relationship was not thwarted as required under the law. See id. ↑
- Garrett v. Tandy Corp., No. Civ. 00-384-P-H, 2003 WL 21250679, at *3–5 (D. Me. May 30, 2003) (magistrate report and recommendation). ↑
- See Garrett v. Tandy Corp., 86 F. App’x 440 (1st Cir. 2004). ↑
- Garrett v. Tandy Corp., 142 F. Supp. 2d 117, 119 (D. Me. 2001), aff’d, 295 F.3d 94, 101 (1st Cir. 2002). ↑
- Id. at 119. In another case, the Fifth Circuit affirmed summary judgment for Dillard’s, where plaintiff was falsely accused of shoplifting, detained, falsely arrested, and banned from the store. Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 746–47, 751–53 (5th Cir. 2001). These actions did not block a contract under Section 1981: “[T]he ban alone [was] too speculative to establish loss of any actual contractual interest owed to [plaintiff] by Dillard’s.” Id. at 753. To have a claim, she was required to have attempted to contract with the store during the ban. See id.; see also Hunter v. Buckle, Inc., 488 F. Supp. 2d 1157, 1172–73 (D. Kan. 2007) (finding no evidence that plaintiff decided to purchase jeans that she had tried on); Jeffrey v. Home Depot U.S.A., Inc., 90 F. Supp. 2d 1066, 1069–70 (S.D. Cal. 2000) (finding that, although delayed, Black plaintiff was not denied the ability to make his purchase when the store asked for permission to search his bag, which he did not give). At the time of the case, most of the courts of appeals had concluded that “discriminatory surveillance and watchfulness does not qualify the embarrassed victim for making a claim”; as long as a purchase was not prevented, no Section 1981 claim existed. See Scott v. Coach, Inc., No. 08-0443-CV-W-HFS, 2009 WL 3517670, at 1 (W.D. Miss. Oct. 26, 2009). Cases in other circuits have been dismissed on similar grounds. See, e.g., Perry v. Petco Animal Supplies Stores, Inc., No. 1:07-CV-2281-ODE-CCH, 2008 WL 11417088, at 5 (N.D. Ga. Mar. 27, 2008) (granting motion to dismiss where boys who were Black took a purchased dog cage to a car and the police detained them, searched the backpack, and found nothing, noting that “[e]ven . . . overt racism” is not covered as long as “no contractual interest was harmed”); Henderson et al., supra note 8, at 39–40, 105–20. ↑
- Garrett, 295 F.3d at 103. ↑
- Id. ↑
- Id. at 101. In Ortiz-Rosario v. Toys “R” Us P.R., Inc., the court found no Section 1981 claim where two hours and twenty minutes passed between the time a Black Puerto Rican plaintiff was accused of shoplifting and when the store and police, who had been called, exonerated her. 585 F. Supp. 2d 216, 218–19 (D.P.R. 2007). The plaintiff was subsequently left inside the store and could have made a purchase at the store if she wished. Id. at 221–22. The Section 1982 claim was dismissed on the same basis. Id.; see also Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 891–94 (11th Cir. 2007) (affirming summary judgment where Black plaintiff could not show pretext for restaurant’s reasons for additional charge and slow service, despite racist “n word” language later used by the employee who assisted her). ↑
- *Garrett v. Tandy Corp., No. Civ. 03-384-P-H, 2003 WL 21703637, at 1 (D. Me. July 22, 2003), aff’d, 86 F. App’x 440 (1st Cir. 2004); see also Chu v. Gordmans, Inc., No. 8:01CV182, 2002 WL 802353, at *6 (D. Neb. Apr. 12, 2002) (holding that no cause of action existed where plaintiff was questioned and her purchases inspected after she made purchases); Lewis v. J.C. Penney Co., 948 F. Supp. 367, 372 (D. Del. 1996) (granting summary judgment to defendants, where Black plaintiff was accused of shoplifting after making purchases, because “not a single case was cited in which a customer, falsely accused of shoplifting, was permitted to proceed”). ↑
- See Brewster et al., supra note 8, at 479; Zachary W. Brewster & Sarah N. Rusche, The Effects of Racialized Workplace Discourse on Race-Based Service in Full-Service Restaurants, 41 J. Hosp. & Tourism Rsch. 398, 406–09 (2017) [hereinafter Brewster & Rusche, The Effects of Racialized Workplace Discourse] (“[R]ace-based service is systemic in the full-service restaurant industry.”); Zachary W. Brewster & Sarah Nell Rusche, Quantitative Evidence of the Continuing Significance of Race: Tableside Racism in Full-Service Restaurants, 43 J. Black Stud. 359, 362, 375–79 (2012). ↑
- Bobbitt v. Rage Inc., 19 F. Supp. 2d 512, 514–15, 518 (W.D.N.C. 1998). ↑
- Id. at 514–15. ↑
- Id. at 514. ↑
- Id. ↑
- Id. ↑
- Id. at 514–15. ↑
- Id. at 515. ↑
- Id. ↑
- Id. ↑
- See id. at 517–18, 521–22. ↑
- Id. at 518. ↑
- Id. ↑
- Id. (quoting Robertson v. Burger King, Inc., 848 F. Supp. 78, 81 (E.D. La. 1994)); see also Jackson v. Waffle House, Inc., 413 F. Supp. 2d 1338, 1363 (N.D. Ga. 2006) (finding that a wait time of thirty to forty-five minutes, standing alone, is not actionable under Title II). ↑
- See Bobbitt, 19 F. Supp. 2d at 519. ↑
- See York v. JPMorgan Chase Bank, Nat’l Ass’n, No. CV-18-04039-PHX-SPL, 2019 WL 3802535, at *1 (D. Ariz. Aug. 13, 2019). ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. at 1, 4. ↑
- Id. at *3. ↑
- Id. As another example in a bank, a court granted a motion to dismiss a Section 1981 claim of a Black Bancorp customer who was told to stand in the individual customer line, even though he had a business account, and who was told to remove his sunglasses. Allen v. U.S. Bancorp., 264 F. Supp. 2d 945, 947–51 (D. Or. 2003). Even though the customer had evidence that White people were not treated similarly, the court decided his contractual interest was satisfied. Id. at 951–53. Any delay was not protected. Id. ↑
- **Lopez v. Target Corp., 676 F.3d 1230, 1231 (11th Cir. 2012). ↑
- Id. at 1231–32. ↑
- Id. at 1232. ↑
- Id. at 1234–35. ↑
- Id. at 1234 (alteration in original) (citation omitted). Similarly, in a case where a Black plaintiff was delayed from entering a Wal-Mart store, racial epithets were used against him, and he was barred from returning to the store, the Fifth Circuit decided that no claim under Section 1981 existed because he had not been denied the ability to make a purchase. Singleton v. St. Charles Parish Sheriff’s Dep’t, 306 F. App’x 195, 198 (5th Cir. 2009); see also Kirt v. Fashion Bug, Inc. #3253, 495 F. Supp. 2d 957, 959–60, 972–75 (N.D. Iowa 2007) (affirming grant of summary judgment where Black plaintiff was called “you people,” screamed at, and told that if she did not leave the store police would be called, because plaintiff had not picked an item at that time and was not ultimately prevented from making a purchase, as another employee said she could continue shopping). In another case, a jury found for the Black plaintiff who alleged a gas station clerk discriminated against him by requiring him to wait for service. Bentley v. United Refin. Co. of Pa., 206 F. Supp. 2d 402, 403 (W.D.N.Y. 2002). The trial court threw out the jury’s verdict and ordered judgment as a matter of law for the gas station on the Section 1981 claim. Id. at 406. At the time, the plaintiff was the only Black customer at the store. Id. at 404. There was also direct evidence that the clerk could have possessed discriminatory motives: five years earlier, the clerk had said she “hate[d] n[—]s.” Id. Despite the delay in service, the court stated the plaintiff had no claim, because he was able to complete his transaction. Id. at 406. ↑
- See Brewster & Rusche, The Effects, supra note 183, at 398–99; cf. Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law (2017) (discussing explicit discrimination in employment discrimination cases dismissed by judges); Jessica A. Clarke, Explicit Bias, 113 Nw. U. L. Rev. 505 (2018) (discussing explicit bias in cases). ↑
- See Arguello v. Conoco, 330 F.3d 355, 356–57 (5th Cir. 2003). ↑
- Id. ↑
- Id. at 356. ↑
- Id. at 359. ↑
- Id. at 360. ↑
- Hammond v. Kmart Corp., 733 F.3d 360, 361 (1st Cir. 2013). ↑
- Id. at 362–66 (quoting Garrett v. Tandy Corp., 295 F.3d 94, 100–01 (1st Cir. 2002)). ↑
- **Bagley v. Ameritech Corp., 220 F.3d 518, 522 (7th Cir. 2000). ↑
- Id. at 521–22; see also Flowers v. TJX Cos., No. 91-CV-1339, 1994 WL 382515, at 1, 6 (N.D.N.Y. July 15, 1994) (granting summary judgment for defendant on Section 1981 claim where, although officer called by T.J. Maxx harassed Black plaintiffs and intended to ask them to leave, plaintiffs were not prevented from making purchases); Roberts v. Walmart Stores, Inc., 769 F. Supp. 1086, 1090 (E.D. Mo. 1991) (finding that recording of race of check writer is not a discriminatory practice actionable under Section 1981 and Section 1982—and thus Black plaintiffs had no claim—because purchase was not prevented, and race of all check writers was recorded); Harrison v. Denny’s Rest., Inc., No. C-96-0343 (PJH), 1997 WL 227963, at 4–5 (N.D. Cal. Apr. 24, 1997) (granting summary judgment despite allegations of denial of service by one waiter and slow service because restaurant did not deny service to Black plaintiff); White v. Denny’s Inc., 918 F. Supp. 1418, 1429 (D. Colo. 1996) (granting summary judgment because seating White customers before Black customers is not an actionable Section 1981 claim). Even where cases are not dismissed on summary judgment, a court may highlight the possibility that there is no valid Section 1981 claim. See Davis v. Megabus Ne. LLC, 301 F. Supp. 3d 105, 111 (D.D.C. 2018). In a case brought by a Black plaintiff against Megabus for discrimination against passengers on the basis of race, the court denied summary judgment, deciding that the company could be liable for the actions of the baggage handler who engaged in the allegedly discriminatory conduct. Id. at 110–13. However, the court mentioned that the company had not moved to dismiss on the broader ground of scope of Section 1981 coverage. Id.* at 111. ↑
- See Brewster et al., supra note 8, at 480–81. ↑
- Baltimore-Clark v. Kinko’s Inc., 270 F. Supp. 2d 695, 697–98 (D. Md. 2003). ↑
- Id. at 698. ↑
- Id. at 700. ↑
- Id. ↑
- Id. In another case, where an Asian American plaintiff had alleged discriminatory treatment by the personnel in a lobby, the court decided that no Section 1981 violation existed because he was not prevented from accessing the building. Benzinger v. NYSARC, Inc. N.Y.C. Chapter, 385 F. Supp. 3d 224, 234 (S.D.N.Y. 2019). ↑
- **Fahim v. Marriott Hotel Servs., 551 F.3d 344, 346–47 (5th Cir. 2008). ↑
- Id. at 352. ↑
- Id. at 351. ↑
- Id. at 351–52 (5th Cir. 2008). In a case decided on similar grounds, the Black plaintiff alleged a Section 1981 violation occurred when he was asked to leave a restaurant in downtown Indianapolis but White patrons were not treated in the same manner. See Jones v. Indy 104, LLC, No. 1:08–cv–01128–SEB–TAB, 2010 WL 2270931, at 1–4 (S.D. Ind. June 2, 2010). The court granted summary judgment for the restaurant. Id. at 15. The plaintiff’s testimony was not sufficient to show discrimination while the defendant’s testimony that it treated White patrons similarly to the plaintiff was sufficient to show it did not discriminate. See id. at *4–7. ↑
- **Jackson v. Tyler’s Dad’s Place, Inc., 850 F. Supp. 53, 55 (D.D.C. 1994). ↑
- Id. at 54. ↑
- Id. ↑
- Id. at 56. ↑
- Id. ↑
- Id. at 57. In another case, the Black plaintiff alleged that Wal-Mart took White customers’ checks without addresses, including that of her husband, who was White, but at times would not take some Black customers’ checks without addresses. Stucky v. Wal-Mart Stores, Inc., No. 02-CV-6613 CJS(P), 2005 WL 2008493, at 7–10 (W.D.N.Y. Aug. 22, 2005). The court granted summary judgment on the Section 1981 claim where, among other things, her check without an address had been taken in the past and Wal-Mart showed it told employees not to take them. Id.* ↑
- **Cerqueria v. Am. Airlines, Inc., 520 F.3d 1, 4–10 (1st Cir. 2008). ↑
- Id. at 17–18. In another case, a Black plaintiff was shopping at Macy’s and purchased several items using an American Express card. Scott v. Macy’s E., Inc., No. Civ.A.01–10323–NG, 2002 WL 31439745, at 2 (D. Mass. Oct. 31, 2002). Thereafter, Macy’s personnel called American Express, and the plaintiff’s card was frozen. Id. He tried to use the card subsequently but could not. Id. at 3. Despite evidence that Macy’s had told American Express that two Black men were using a card fraudulently, the court dismissed the Section 1981 case on summary judgment because that evidence could not be used and, thus, no evidence of race discrimination existed in the case as presented. See id. at *4–7. ↑
- Al-Watan v. Am. Airlines, Inc., 658 F. Supp. 2d 816, 818–19 (E.D. Mich. 2009). ↑
- Id. at 820. ↑
- Id. ↑
- Id. ↑
- Id. at 829. ↑
- Id. at 827; see also Henderson et al., supra note 8, at 39–40, 105–20; Marcus L. Stephenson & Howard L. Hughes, Racialised Boundaries in Tourism and Travel: A Case Study of the UK Black Caribbean Community, 24 Leisure Stud. 137, 152 (2005). ↑
- Mercer v. Sw. Airlines, No. 13–cv–05057–MEJ, 2014 WL 4681788, at *1 (N.D. Cal. Sept. 19, 2014). ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. at 2, 7–8. ↑
- *Id. at 7. Similarly, in a case against United Airlines, the plaintiffs of Indian descent alleged that the airline discriminated against them on the basis of their race. Tejwani v. United Airlines, Inc., No. 08 Civ. 2966(SCR), 2009 WL 860064, at 1 (S.D.N.Y. Mar. 31, 2009). They alleged that some passengers in line with them made racist comments toward them. Id. They further asserted that a United manager required them to step out of the line and wait for other passengers even though several passengers told the manager that plaintiffs were properly in line. Id. at 2. The court ordered summary judgment on their Section 1981 claim because the plaintiffs had not claimed “that any United employee uttered any derogatory remarks or comments or that any United employee encouraged such behavior on the part of some of the passengers waiting on line.” Id. at 3. Further, they could not show that White people were not treated similarly. Id. at 4. The court declared that “race-neutral factors” were “possible.” Id. ↑
- Acey v. Bob Evans Farms, Inc., No. 2:13–cv–04916, 2014 WL 989201, at *1 (S.D. W. Va. Mar. 13, 2014). ↑
- Id.; see also KangJae Jerry Lee & David Scott, Racial Discrimination and African Americans’ Travel Behavior: The Utility of Habitus and Vignette Technique, 56 J. Travel Rsch. 381, 385 (2017) (describing discriminatory seating in restaurants). Cracker Barrel settled a suit with the NAACP for $8.7 million for seating Black customers in the back of their restaurant in the smoking section and refusing to serve them. Cracker Barrel Settles Racial Discrimination Lawsuits for $8.7M, Fox News (Sept. 9, 2004), https://www.foxnews.com/story/cracker-barrel-settles-racial-discrimination-lawsuits-for-8-7m [https://perma.cc/L4XQ-X65X]. ↑
- Acey, 2014 WL 989201, at *1. ↑
- Id. at 4; see also Daniels v. Dillard’s, Inc., 373 F.3d 885, 887–88 (8th Cir. 2004) (affirming summary judgment on several Black plaintiffs’ claims that a White employee did not permit them to use checks and did not give them discounts while White customers were treated differently); Lizardo v. Denny’s, Inc., 270 F.3d 94, 106 (2d Cir. 2001) (affirming dismissal of Section 1981 claim on summary judgment because Asian American and Black plaintiffs who were kicked out of restaurant did not sufficiently show similarly situated people not in the group were treated differently, and could not use evidence of hostile treatment to show discrimination). In another case, this time against Extended Stay, the Black plaintiffs were told a hotel room was available. Childs v. Extended Stay of Am. Hotels, No. 10–3781 (SRN/JJK), 2012 WL 2126845, at 1 (D. Minn. June 12, 2012). After they asked about the amenities available at the hotel, they were informed it had no pool and continental breakfast but the Holiday Inn had these. Id. They left to check the Holiday Inn but returned to the Extended Stay. Id. They were then notified that no room was available for them at the Extended Stay. Id. They subsequently called a few times and, after disguising their voice as White, were told a room was available. Id. at 2. Later, upon a complaint to the general manager, they were told they had been incorrectly informed. Id. A room was available. Id. The couple brought suit under Title II and Section 1981. Id. at 3. The court granted summary judgment because there was insufficient evidence of discrimination. Id. at 6. No hotel agent made “racial insults or remarks” when they requested a room. Id. Additionally, there was no discriminatory policies or evidence that similarly situated White customers were treated differently. Id. at 5–6. ↑
- Allen v. CLP Corp., 460 F. App’x 845, 846 (11th Cir. 2012). ↑
- Id. ↑
- Id. at 846–47. ↑
- Id. at 847. ↑
- Id. ↑
- Id. ↑
- Id. (alteration in original). ↑
- Id. ↑
- See id. ↑
- Id. at 848–49. ↑
- Id. at 848 (citation omitted). ↑
- Barton v. Thompson, No. CIV.A. HAR-95-2154, 1996 WL 827416, at *1–2 (D. Md. May 18, 1996). ↑
- Id. at *4. ↑
- Alexis v. McDonald’s Rests. of Mass., Inc., 67 F.3d 341, 345–48 (1st Cir. 1995). ↑
- Id. at 347–48. ↑
- Id. at 347. ↑
- Callwood v. Dave & Buster’s Inc., 98 F. Supp. 2d 694, 700 (D. Md. 2000). ↑
- Id. at 699, 717–18. ↑
- Id. at 718. ↑
- Id. at 701–702, 718–21. In another case against a restaurant, two Black patrons at a restaurant’s bar were ejected after they refused to get up for two White women in response to an informal policy at the bar that men give up their seats for women. Carroll v. Tavern Corp., Nos. 1:08–CV–2514–TWT–JFK, 1:08–CV–2554–TWT–JFK, 2011 WL 1102698, at 2–5 (N.D. Ga. Feb. 9, 2011) (magistrate report and recommendation), adopted, 2011 WL 1044609 (N.D. Ga. Mar. 23, 2011). The court denied summary judgment on the Title II and Section 1981 claims. Id. at 31. Among other evidence was evidence of a policy favoring White customers and the presence, at the time, of a White man and Indian man who were not asked to move when the Black patrons refused. Id. at 24–25. In addition, there was evidence that when the others were asked, they moved for the women, but the restaurant still removed the Black patrons. Id.* ↑
- **Sayed-Aly v. Tommy Gun, Inc., 170 F. Supp. 3d 771, 773 (E.D. Pa. 2016). ↑
- Id. ↑
- Id.; see also Whitehurst v. 230 Fifth, Inc., No. 11 Civ. 0767(CM), 2011 WL 3163495, at 4 (S.D.N.Y. July 26, 2011) (denying motion to dismiss Section 1981 claim, where a group of Black patrons who had a reservation at a restaurant were kicked out of the restaurant by White employees); Shebley v. United Cont’l Holdings, Inc., 357 F. Supp. 3d 684, 691–92 (N.D. Ill. 2019) (denying United Airline’s motion to dismiss where Lebanese American family alleged discrimination based on their national origin, religion, and race after they were asked to leave a United flight on the assertions that they did not follow instructions); Bonner v. S-Fer Int’l, Inc., 207 F. Supp. 3d 19, 26 (D.D.C. 2016) (denying motion to dismiss by Salvatore Ferragamo where a White boutique employee kicked out Black plaintiff when she asked to see a pair of shoes); Adams v. U.S. Airways Grp., Inc., 978 F. Supp. 2d 485, 488–89 (E.D. Pa. 2013) (denying airline’s motion to dismiss where eleven Black passengers were removed from a plane during which time employees referred to one of them as a “black b---h” and as “you people,” and were warned to “keep their mouths shut”); Dunaway v. Cowboys Nightlife, Inc., 436 F. App’x 386, 391–92 (5th Cir. 2011) (reversing summary judgment where Black patrons were removed from club); Banks v. Bank of Am., N.A., 505 F. Supp. 2d 159, 166–68 (D.D.C. 2007) (denying summary judgment for bank when Black plaintiff customer of bank was denied services, removed from bank, and arrested); Ezell v. Edwards Theatres, Inc., No. 104-CV-6533-SMS, 2006 WL 3782698, at 10–18 (E.D. Cal. Dec. 21, 2006) (denying summary judgment where theatre removed two Black patrons after White woman who called them “you people” and the n word complained about them); Solomon v. Waffle House, Inc, 365 F. Supp. 2d 1312, 1324–28 (N.D. Ga. 2004) (denying summary judgment on Black couple’s Section 1981 claim where they did not receive their food from White employees). ↑
- Howell v. Greyhound Lines, Inc., No. 1:07-cv-1113-TCB, 2009 WL 10666051, at 1–2, 7 (N.D. Ga. Apr. 3, 2009). ↑
- *Alasady v. Nw. Airlines Corp., No. Civ.02–3669 (RHK/AJB), 2003 WL 1565944, at 1–2, *10–11 (D. Minn. Mar. 3, 2003). ↑
- Id. at *10–11 (D. Minn. Mar. 3, 2003). ↑
- *Henderson v. Jewel Food Stores, Inc., No. 96 C 3666, 1996 WL 617165, at 1 (N.D. Ill. Oct. 23, 1996). ↑
- Id. at *1. ↑
- Id. at *2. ↑
- Id. at 4; see also Washington v. Duty Free Shoppers, Ltd., 710 F. Supp. 1288, 1289 (N.D. Cal. 1988) (denying motion for summary judgment where seventeen Black plaintiffs who were asked for plane tickets or passports refused service while others from public were not asked and were served); Shen v. A & P Food Stores, No. 93 CV 1184 (FB), 1995 WL 728416, at 1 (E.D.N.Y. Nov. 21, 1995) (denying motion to dismiss where plaintiffs of Chinese descent were denied ability to purchase juice by store). ↑
- Keck v. Graham Hotel Sys., Inc., 566 F.3d 634, 636 (6th Cir. 2009). ↑
- Id. at 637–38. ↑
- Id. at 638–39. ↑
- Id. at 640–42. In a case that involved the selective denial of service, a restaurant would not serve customers from two to five a.m. in the dining room. Robinson v. Paragon Foods, Inc., No. CIVA1:04CV2940JEC, 2006 WL 2661110, at 1 (N.D. Ga. Sept. 15, 2006). Only to-go orders were permitted and a 25-cent to-go fee was assessed in addition to a 10 percent tip. Id. At that time, almost all of the customers were Black and coming from a Black nightclub. Id. at 2. Since evidence existed that White people were allowed to dine in at the same time that Black people were not, the court denied summary judgment on Title II and Section 1981 claims. Id. at 7–8; see also Halton v. Great Clips, 94 F. Supp. 2d 856, 866–70 (N.D. Ohio 2000) (denying motion for summary judgment on some claims on proof that White customers were treated more favorably than Black customers of salon). A court also denied Borders bookstore’s motion to dismiss a Section 1981 case brought by a Black plaintiff who had picked a book to purchase. Newman v. Borders, Inc., 530 F. Supp. 2d 346, 351 (D.D.C. 2008). After the plaintiff had picked the book, a security guard blocked his way to the check out, insisted he had stolen from the store, said she had been watching him since he entered, and told him to empty his shopping bag from another store. Id. at 347–48. The court found that the plaintiff had been “thwarted” in his attempt to purchase. Id.* at 349. ↑
- Gregory v. Dillard’s, Inc., 565 F.3d 464, 476 (8th Cir. 2009) (en banc). ↑
- Id. There was a strong dissent in the case. See id. at 478 (Murphy, J., dissenting, with Bye, Melloy, Smith, JJ., joining) (“I respectfully dissent from the majority’s failure to give effect to the legislation enacted by Congress to give African Americans equal rights to contract and to purchase goods as possessed by whites.”). ↑
- Daniel v. Paul, 395 U.S. 298, 306–07 (1969) (quoting Special Message to the Congress on Civil Rights and Job Opportunities, 1 Pub. Papers 483, 485 (June 19, 1963)). ↑
- H.R. 7152, 88th Cong. § 201(b) (1963). ↑
- Id. §§ 201(c), (d). ↑
- Id. § 201(e). ↑
- Id. § 201(f). The Bill provided in part that “[a]ll persons shall be entitled, without discrimination or segregation on account of race, color, religion, or national origin, to the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of the following public establishments.” Id. § 202(a). Included were hotels, entertainment places, gasoline stations, and retail stores. Id. Only injunctive relief was possible when a person was “about to engage in” a prohibited practice. Id. § 204(a). The prevailing party could receive attorneys’ fees. Id. § 204(b). Previous versions in the House, such as H.R. 1985, had some similar language. Miscellaneous Proposals Regarding the Civil Rights of Persons Within the Jurisdiction of the United States: Hearings Before the Subcomm. No. 5 of the H. Comm. on the Judiciary, 88th Cong. 1033–1035 (1963) [hereinafter Hearings] (statement of Abe McGregor Goff, Vice Chairman, Interstate Com. Comm’n). ↑
- Hearings, supra note 298, at 907–08 (statement of Emanuel Celler, Chairman, Subcomm. No. 5 of the H. Comm. on the Judiciary). ↑
- H.R. 7152, 88th Cong. § 201(a) (1964). ↑
- *H.R. Rep. No. 88-914, pt.1, at 18 (1964), as reprinted in* 1964 U.S.C.C.A.N. 2391, 2393. ↑
- Id. ↑
- Id. at 20. ↑
- Id., pt. 2, at 7. ↑
- Id. at 8. ↑
- Id. ↑
- Id. ↑
- Id., pt.1, at 20. ↑
- H.R. 7152, 88th Cong. (1964). A “Community Relations Service” was established to help resolve discrimination issues. Hearings, supra note 298, at 30–31. ↑
- Paul M. Downing, Cong. Rsch. Serv., GGR 100-2, The Civil Rights Act of 1964: Legislative History; Pro and Con Arguments; Text LRS-26-32 (1965). The Senate proposed that a plaintiff must inform states and localities with relevant laws at least thirty days before bringing an action. Id. at LRS-27. ↑
- H.R. 7152, 88th Cong. (1964); Paul M. Downing, Cong. Rsch. Serv., GGR 100-2, The Civil Rights Act of 1964: Legislative History; Pro and Con Arguments; Text 32 (1965). ↑
- As previously noted, a House Report mentioned “the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.” H.R. Rep. No. 88-914, pt.1, at 18; see also Rousseve v. Shape Spa for Health & Beauty, Inc., 516 F.2d 64, 70 (5th Cir. 1975) (discussing same congressional purpose). ↑
- S. Rep. No. 88–872, at 15 (1964), as reprinted in 1964 U.S.C.C.A.N. 2355, 2369; see also H.R. Rep. No. 88-914, at 19–20 (1964), as reprinted in 1964 U.S.C.C.A.N. 2391, 2395. ↑
- See supra text accompanying note 310. See generally Elizabeth Sepper, A Missing Piece of the Puzzle of the Dignitary Torts, 104 Cornell L. Rev. Online 70 (2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3433406 [https://perma.cc/D57F-TPCN] (describing public accommodations statutes as laws that protect against dignitary torts that cause humiliation among other harms). ↑
- See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (discussing importance of the text of statutes). ↑
- 42 U.S.C. § 2000a. ↑
- Id. ↑
- See, e.g., Nielsen v. Preap, 139 S. Ct. 954, 969 (2019) (“[E]very word and every provision is to be given effect [and that n]one should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” (second alternation in original) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012))). ↑
- See James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 489 (2013); Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court’s First Era: An Empirical and Doctrinal Analysis, 62 Hastings L.J. 221, 239–40, 240 n.85 (2010). ↑
- Brudney & Baum, supra note 319, at 491. ↑
- Full, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/full [https://perma.cc/F87A-EYD2]. ↑
- Full, Oxford English Dictionary, https://www.oed.com/viewdictionaryentry/Entry/75327 [https://perma.cc/R9V3-NV8S]. ↑
- Full, Webster’s New World Dictionary of the English Language, College Edition 585 (1964) [hereinafter 1964 Webster’s]. ↑
- E-mail from University of Illinois College of Law Library to Suja Thomas (Sept. 22, 2020) (on file with author) [hereinafter Law Library E-mail]. ↑
- Full, Oxford English Dictionary (1933), https://archive.org/details/in.ernet.dli.2015.271841/page/n591/mode/2up. ↑
- Equal, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/equal [https://perma.cc/R84Y-M4T4]. ↑
- Id. ↑
- Equal, Oxford English Dictionary, https://www.oed.com/viewdictionaryentry/Entry/63695 [https://perma.cc/KG78-M9TJ]. ↑
- Equal, 1964 Webster’s, supra note 323, at 490. ↑
- Equal, Oxford English Dictionary (1933), https://archive.org/details/in.ernet.dli.2015.271840/page/n995/mode/2up. ↑
- Enjoyment, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/enjoyment [https://perma.cc/R26J-TR6J]. ↑
- Enjoyment, Oxford English Dictionary, https://www.oed.com/view/Entry/62415 [https://perma.cc/E49M-T9UX]. ↑
- Enjoyment, 1964 Webster’s, supra note 323, at 482. ↑
- Enjoyment, Oxford English Dictionary (1933), https://archive.org/details/in.ernet.dli.2015.271840/page/n931/mode/2up. ↑
- 42 U.S.C. § 2000a(a). ↑
- Good, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/goods [https://perma.cc/33Y8-BMPW]. ↑
- Good, Oxford English Dictionary, https://www.oed.com/view/Entry/79925 [https://perma.cc/4BS7-PRJ3]. ↑
- Good, 1964 Webster’s, supra note 323, at 624. ↑
- Good, Oxford English Dictionary (1933), https://archive.org/details/in.ernet.dli.2015.271841/page/n921/mode/2up?q=good. ↑
- Service, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/service [https://perma.cc/YKE7-3GK9]. ↑
- Serve, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/serve [https://perma.cc/49V8-MWU7]. ↑
- Service, Oxford English Dictionary, https://www.oed.com/view/Entry/176678 [https://perma.cc/7RYG-Z4J7]. ↑
- Service, 1964 Webster’s, supra note 323, at 1331. ↑
- Service, Oxford English Dictionary (1933), https://archive.org/details/in.ernet.dli.2015.271834/page/n521/mode/2up. ↑
- Facility, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/facility [https://perma.cc/59LU-JREL]. ↑
- Facility, Oxford English Dictionary, https://www.oed.com/view/Entry/67465 [https://perma.cc/Y827-L7DZ]. ↑
- Facility, 1964 Webster’s, supra note 323, at 520. ↑
- Facility, Oxford English Dictionary (1933), https://archive.org/details/in.ernet.dli.2015.271841/page/n13/mode/2up. ↑
- Privilege, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/privilege [https://perma.cc/TC9L-ACZG]. ↑
- Privilege, Oxford English Dictionary, https://www.oed.com/view/Entry/151624 [https://perma.cc/53MG-ALHD]. ↑
- Privilege, 1964 Webster’s, supra note 323, at 1160. ↑
- Privilege, Oxford English Dictionary (1933), https://archive.org/details/in.ernet.dli.2015.120831/page/n179/mode/2up. ↑
- Advantage, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/advantage [https://perma.cc/WT63-HJ6X]. ↑
- Advantage, Oxford English Dictionary, https://www.oed.com/view/Entry/2895 [https://perma.cc/NEJ7-X74Y]. ↑
- Advantage, 1964 Webster’s, supra note 323, at 21. ↑
- Advantage, Oxford English Dictionary (1933), https://archive.org/details/in.ernet.dli.2015.99992/page/n171/mode/2up. ↑
- Accommodation, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/accommodation [https://perma.cc/8BLE-HQAR]. ↑
- Accommodation, Oxford English Dictionary, https://www.oed.com/view/Entry/1134 [https://perma.cc/6CUG-P53M]. ↑
- Accommodation, 1964 Webster’s, supra note 323, at 9. ↑
- Accommodation, Oxford English Dictionary (1933), https://archive.org/details/in.ernet.dli.2015.99992/page/n97/mode/2up. ↑
- See supra note 318. ↑
- Moreover, while the subtitle of Title II is “equal access,” courts have long ago rejected the importance of such subtitles. See Brotherhood of R.R. Trainmen v. Balt. & Ohio R.R., 331 U.S. 519, 528–29 (1947) (“[H]eadings and titles are not meant to take the place of the detailed provisions of the text.”); 2A Norman J. Singer & Shambie Singer, Sutherland Statutes and Statutory Construction § 47:14 (7th ed. 2019). ↑
- Cf. N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 61 (1980) (comparing words in Title II and Title VII and deciding differences are meaningful and cannot be “mere surplusage”); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 283 (1978) (distinguishing language in Title II and Title VI). ↑
- See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237–38 (1969) (holding that the public accommodations provision in Title II did not supersede the Civil Rights Act of 1866 and “[t]here is moreover, a saving clause in the 1964 Act as respects ‘any right based on any other Federal . . . law not inconsistent’ with that Act” (footnote omitted)). ↑
- See Thomas v. Tops Friendly Mkts., Inc., No. CIVA96CV1579(RSP/GJD, 1997 WL 627553, at 1, 4–5 (N.D.N.Y Oct. 8, 1997). In this case, the court deemed the grocery store a place of public accommodation because there was a lunch counter. See id. at *4. ↑
- Id. at *4–5. ↑
- Bobbitt v. Rage Inc., 19 F. Supp. 2d 512, 519–22 (W.D.N.C. 1998). ↑
- Id. The Section 1981 claim also survived. Id. Several courts have found that requiring Black plaintiffs to pre-pay violates Title II and Section 1981. See, e.g., Jackson v. Waffle House, Inc., 413 F. Supp. 2d 1338, 1358–59 (N.D. Ga. 2006) (denying Waffle House’s motion for summary judgment because the Black plaintiff was denied “full enjoyment” when he was required to pre-pay for take-out order while White patrons were not); Dozier v. Waffle House, Inc., No. 1:03-CV-3093-ODE, 2005 WL 8154381, at 7–11 (N.D. Ga. May 4, 2005) (denial of summary judgment when plaintiffs were requested to pre-pay for food order); Hill v. Shell Oil Co., 78 F. Supp. 2d 764, 777–78 (N.D. Ill. 1999) *(finding claims actionable under Title II and Section 1981, where Black customers were required to pre-pay for gasoline at a Shell gas station, “subject[ing] [them] to different terms of purchase” and “abridg[ing] their rights to the ‘full and equal enjoyment of the goods’” (quoting 42 U.S.C. § 2000a(a))). ↑
- Bobbitt, 19 F. Supp. 2d at 515. ↑
- Id. at 521. ↑
- See 42 U.S.C. § 2000a(a). ↑
- Id. ↑
- See id. ↑
- 2B Singer & Singer, supra note 362, § 51:1. ↑
- See 42 U.S.C. § 12182(a). Other statutes also use the term “full enjoyment,” such as the Fair Housing Act, 42 U.S.C. § 3614(a), as well as state public accommodations statutes, see, e.g., Mich. Comp. Laws § 37.2605(2)(e) (2020); 775 Ill. Comp. Stat. 5/5-102 (2018); Minn. Stat. § 363.03(3) (2019). ↑
- § 12182(a). ↑
- See, e.g., Colker, The Power of Insults, supra note 77, at 53–66 (mentioning several ADA cases where plaintiffs lose when courts narrowly interpret statute); Samuel R. Bagenstos, Taking Choice Seriously in Olmstead Jurisprudence, 40 J. Legal Med. 5 (2020) (discussing integration and choice for people with disabilities after the Supreme Court’s decision in Olmstead). ↑
- Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012) (quoting § 12182(a)). ↑
- Id. ↑
- See, e.g., A.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1294 (11th Cir. 2018); J.D. v. Colonial Williamsburg Found., 925 F.3d 663, 672 (4th Cir. 2019); Argenyi v. Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013). In its interpretation of the “full and equal enjoyment” language in the ADA, the Seventh Circuit similarly has stated, “The core meaning . . . is that the owner or operator of a store, hotel, restaurant, . . . or other facility . . . that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.” See Doe v. Mut. of Omaha Ins., 179 F.3d 557, 559 (7th Cir. 1999) (emphasis added) (dismissing case on other grounds). Additionally, the Fifth Circuit has interpreted the “full and equal enjoyment” language in a like manner to mean “to prohibit an owner, etc., of a place of public accommodation from denying the disabled access to the good or service and from interfering with the disableds’ full and equal enjoyment of the goods and services offered.” See McNeil v. Time Ins., 205 F.3d 179, 186–88 (5th Cir. 2000). ↑
- See Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1085 (9th Cir. 2004). ↑
- **Baughman, 685 F.3d at 1135. ↑
- Or. Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1133 (9th Cir. 2003). ↑
- See id. (rejecting that theatres comply “[n]o matter where in the theater the seats are, and no matter how sharp the viewing angle, so long as there is no physical object standing between the disabled patron and the screen”). ↑
- Kalani v. Starbucks Coffee Co., 698 F. App’x 883, 885 (9th Cir. 2017) ↑
- Id. at 887. ↑
- Id. (citation omitted). ↑
- 2B Singer & Singer, supra note 362, § 52:1. ↑
- Mich. Comp. Laws § 37.2605(2)(e) (2020). ↑
- Kassab v. Mich. Basic Prop. Ins. Ass’n, 491 N.W.2d 545, 546 (Mich. 1992), overruled, Haynes v. Neshewat, 729 N.W.2d 488 (Mich. 2007). ↑
- Id. at 546. ↑
- Id. (citation omitted). ↑
- See id. ↑
- Id. ↑
- Haynes v. Neshewat, 729 N.W.2d 488, 488 (Mich. 2007). ↑
- Id. at 491. ↑
- Id. at 493. ↑
- Id. ↑
- Id. Cases under other law with this “full and equal enjoyment” language have similarly given effect to this language. See Windsor Clothing Store v. Castro, 41 N.E.3d 983, 992 (Ill. App. Ct. 2015) (recognizing discriminatory surveillance under Illinois public accommodations statute, 775 Ill. Comp. Stat. 5/5-102, and permitting $25,000 of damages for emotional distress awarded by the Illinois Human Rights Commission to stand); Bray v. Starbucks Corp., No. A17-0823, 2017 WL 6567695, at *7 (Minn. Ct. App. Dec. 26, 2017) (finding that, where transgender individual received hostile treatment from Starbucks employees while being served, “[n]either the MHRA nor caselaw expressly limits public-accommodation discrimination claims to those in which a person is denied access to or refused service by a place of public accommodation” and that “a person within a protected group could be humiliated enough to the point that they are constructively denied full use and enjoyment of services and/or goods”). ↑
- See supra Part II.B.1. ↑
- 2A Singer & Singer, supra note 362, § 46:5 (stating that each part or section of a statute should be construed in connection with every other part or section to produce a harmonious whole); 2B Singer & Singer, supra note 362, § 51:1 (describing using statutes of the same subject to aid interpretation of one another). ↑
- See Walton v. Powell, 821 F.3d 1204, 1210 (10th Cir. 2016) (“[T]he test has proven of limited value . . . .”); Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring, with Tinder and Hamilton, JJ., joining) (criticizing McDonnell Douglas test). ↑
- See Khedr v. IHOP Rests., LLC., 197 F. Supp. 3d 384, 387–88 (D. Conn. 2016) (describing how others may not be available for comparison); Brooks v. Collis Foods, Inc., 365 F. Supp. 2d 1342, 1355 (N.D. Ga. 2005); Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 870–71 (6th Cir. 2001) (recognizing difference in employment setting where comparators may be available more readily); Callwood v. Dave & Buster’s Inc., 98 F. Supp. 2d 694, 706 (D. Md. 2000) (same). ↑
- Sandra F. Sperino, McDonnell Douglas: The Most Important Case in Employment Discrimination Law 126–46 (2018); see also Ernest F. Lidge III, The Courts’ Misuse of the Similarly Situated Concept in Employment Discrimination Law, 67 Mo. L. Rev. 831 (2002); Tricia M. Beckles, Comment, Class of One: Are Employment Discrimination Plaintiffs at an Insurmountable Disadvantage if They Have No “Similarly Situated” Comparators, 10 U. Pa. J. Bus. & Emp. L. 459, 478 (2008) (describing courts’ incorrect use of similarly situated requirement). For example, employees can always allege hostile environment claims and need not show others outside the protected class, who were similarly situated, were not treated in the same manner. See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (describing sexual harassment cause of action under Title VII). ↑
- See supra Part II.B.1.b.ii. ↑
- See supra Part II.B.1.b.ii. ↑
- See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, n.13 (1973). ↑
- See Suzanne B. Goldberg, Discrimination by Comparison, 120 Yale L.J. 728 (2011); Brown et al., supra note 52, at 6–7 (discussing the difficulty of showing similarly situated White persons). ↑
- *Goldberg, supra note 408, at 735; Brown et al., supra* note 52, at 6–7. ↑
- See supra Part II.B.1.b.ii. ↑
- See Sandra F. Sperino, Rethinking Discrimination Law, 110 Mich. L. Rev. 69, 96 (2011). ↑
- See supra Part II.B.3. ↑
- Joe R. Feagin & Melvin P. Sikes, Living with Racism 38–56 (1994) (describing examples of discrimination in public accommodations and the psychological toll on Black people). For background demonstrating that discrimination causes psychological injuries, see generally Ronald C. Kessler, Kristin D. Mickelson & David R. Williams, The Prevalence, Distribution, and Mental Health Correlates of Perceived Discrimination in the United States, 40 J. Health & Soc. Behav. 208 (1999). There is very little mention of the Title II prohibition of segregation by public accommodations in the caselaw. However, claims of discriminatory seating in restaurants and discriminatory assignment of rooms in hotels, among other claims, could fall under this statutory prohibition. ↑
- See supra Part I.A.1. ↑
- George Rutherglen, The Improbable History of Section 1981: Clio Still Bemused and Confused, 2003 Sup. Ct. Rev. 303, 309 (2003). The Thirteenth Amendment was aimed at both private and public behavior to eliminate the vestiges of slavery. See id. at 315. ↑
- Id. at 308–09. ↑
- 42 U.S.C. §§ 1981, 1982. ↑
- Cong. Globe, 39th Cong., 1st Sess. 599 (1866) (emphasis added). ↑
- Id. at 312. ↑
- See, e.g., Xi Wang, The Making of Federal Enforcement Laws, 1870-72, 70 Chi.-Kent L. Rev. 1013, 1023 n.37 (1995) (detailing the background of the Enforcement Act.). ↑
- See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437–39 (1968). ↑
- Rutherglen, supra note 415, at 332; see, e.g., Runyon v. McCrary, 427 U.S. 160, 168–69 (1976); Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459–60 (1975); Tillman v. Wheaton-Haven Recreation Ass’n, 410 U.S. 431, 439–40 (1973). ↑
- Jones, 392 U.S. at 427. The Court also pointed out the limitations of the statute and thus the importance of the Fair Housing Act. Id. at 413–14. For example, the Court stated that discrimination in the provision of services or facilities is protected under the Fair Housing Act but not under the 1866 Act. Id. at 413. ↑
- Rutherglen, supra note 415, at 335–37. ↑
- 491 U.S. 164 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, as recognized in CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008). ↑
- Id. at 177. ↑
- Id. ↑
- Id. at 176–77. ↑
- Id. at 179–180. Such discrimination and harassment were covered under Title VII, which included the broader language of “compensation, terms, conditions or privileges of employment.” Id. at 180 (quoting 42 U.S.C. § 2000e–2(a)(1)). This broad language is very similar to that in Title II, lending further support the broader reading of Title II discussed in the previous Section. ↑
- H.R. Rep. No. 102–40, pt. 2, at 35 (1991). ↑
- See id. at 2. ↑
- Id. at 2, 37 (emphasis added). ↑
- Id., pt. 1, at 92 (emphasis added). ↑
- **42 U.S.C. § 1981. ↑
- H.R. Rep. No. 102–40, pt. 1, at 92. Section 1981 was “to bar all race discrimination in contractual relations.” Id. at 92; see also Callwood v. Dave & Buster’s, Inc., 98 F. Supp. 2d 694, 703 (D. Md. 2000) (interpreting Section 1981’s legislative intent to be broad and its language to cover during and after contract formation). ↑
- H.R. Rep. No. 102–40, pt. 1, at 92; see also H.R. Rep. No. 102–40, pt. 2, at 37 (“This list is intended to be illustrative and not exhaustive.”). ↑
- H.R. Rep. No. 102–40, pt. 2, at 36 (“The damage caused by Patterson has not been limited to the employment context. Complaints that alleged intentional racial discrimination in insurance, auto repair, and advertising contracts, have been dismissed because of Patterson.”). In sum, the legislative history’s reference to all contracts, the importance of the elimination of harassment in contracting relationships, and no explicit coverage for only employment cases highly suggest that harassment in all contractual relationships was covered. See H.R. Rep. No. 102–40, pt. 1, at 92–93. ↑
- Domino’s Pizza v. McDonald, 546 U.S. 470, 476 (2006). “[I]f Domino’s refused to deal with the salesman for a pepperoni manufacturer because the salesman was black,” it would not violate “the right of the salesman to make a contract on behalf of his principal” because the salesman “has no beneficial interest in a contract.” Id. at 475. ↑
- See id. at 476. ↑
- See id. ↑
- See supra Part II.B.2. ↑
- In Comcast Corp. v. National Ass’n of African American-Owned Media, the Supreme Court explicitly declined to decide a question not posed in the petition for certiorari—that is, whether “making” in Section 1981(b) refers to the contractual “process” or just “outcomes,” the latter of which would have limited the scope of the statute. See 140 S. Ct. 1009, 1018 (2020). ↑
- See, e.g., Demery v. City of Youngstown, 933 F.2d 1008 (6th Cir. 1991) (unpublished table decision) (stating that Section 1981 “represents a federal statutory confirmation and reinforcement of the fourteenth amendment and the common law right to contract”). ↑
- See supra Part II.B.2.a (discussing following and false shoplifting accusations). ↑
- See supra Part II.B.2.a. ↑
- See supra Part II.B.2.a. ↑
- See supra Part II.B.2.a–d. ↑
- See Singer & Singer, supra note 362, § 50:4. ↑
- See Restatement (Second) of Contracts §§ 17–19 (Am. L. Inst. 1981). As an aside, the common law on public accommodations may actually favor coverage of this type of discrimination. See Singer, No Right to Exclude, supra note 7, at 1357–73. A recent Supreme Court case refers to the words “common law” in Section 1981. See Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1016 (2020). In that case, the Court seemed to suggest that Section 1981 requires a common law analysis for a variety of matters. See id. However, a careful examination of the statute shows that the common law as modified by each state’s statutes and constitutions applies only to the “trial and disposition”; the statute appears to reference a procedural issue, not a substantive law issue. See Civil Rights Act of 1866, Pub. L. No. 39-31, § 3, 14 Stat. 27, 27 (codified as amended at 42 U.S.C. § 1981). ↑
- See Restatement (Second) of Contracts §§ 17–19. ↑
- Making, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/making [https://perma.cc/M5FH-7A26]. ↑
- Making, Oxford English Dictionary, https://www.oed.com/view/Entry/112669 [https://perma.cc/FXS9-XY2R]. ↑
- This version is the currently available version that is closest in time to the passage of the 1991 amendment. Law Library E-mail, supra note 324. ↑
- Making, Webster’s Ninth New Collegiate Dictionary 719 (1988). Concurring in an opinion, Justice Ginsburg stated that “the word ‘making’ is most sensibly read to capture the entire process by which the contract is formed.” Comcast, 140 S. Ct. at 1020 (Ginsburg, J., concurring). She further stated: “Postformation racial harassment violates § 1981, the amendment clarifies, because the right to ‘make and enforce’ a contract includes the manner in which the contract is carried out. So too the manner in which the contract is made.” Id. at 1021. ↑
- Making, Oxford English Dictionary (1989), https://www.oed.com/oed2/00138805 [https://perma.cc/6RF3-EKFB]. This version is the currently available version that is closest in time to 1991. ↑
- See 42 U.S.C. § 1981. For additional background on how race discrimination in public accommodations affects people of color, see Lee & Scott, supra note 254, at 388 (finding that minorities make choices in their travel based on racism they have experienced); Stephanie Wallace et al., Cumulative Effect of Racial Discrimination on the Mental Health of Ethnic Minorities in the United Kingdom, 106 Am. J. Pub. Health 1294 (2016); Tiffany Yip, Gilbert C. Gee & David T. Takeuchi, Racial Discrimination and Psychological Distress: The Impact of Ethnic Identity and Age Among Immigrant and United States-Born Asian Adults, 44 Dev. Psych. 787 (2008). ↑
- See Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 6:1 (4th ed. 2007) (discussing the contractual requirements of offer and acceptance). ↑
- Id. § 63:22. ↑
- Id. § 63:24. ↑
- 42 U.S.C. § 1981. ↑
- See 491 U.S. 164, 180 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, as recognized in CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008). ↑
- See Rutherglen, supra note 415, at 346 (stating that the 1991 Act “effectively ma[de] the coverage of section 1981 in employment cases as broad as Title VII”). ↑
- Gilyard v. Northlake Foods, Inc., 367 F. Supp. 2d 1008, 1014–15 (E.D. Va. 2005). ↑
- Id. at 1014. ↑
- Id. at 1014–15. ↑
- Id. at 1014. ↑
- Trotter v. Columbia Sussex Corp., No. 08-0412-WS-M, 2009 WL 3158189, at *4–7 (S.D. Ala. Sept. 28, 2009). ↑
- Id. at *1–2. ↑
- Id. at *2. ↑
- Id. at *4. ↑
- Id. at 4–7. Quoting a song by the Rolling Stones, the hotel had argued that “you can’t always get what you want.” Id. at 5. ↑
- Madison v. Courtney, 365 F. Supp. 3d 768, 772–73 (N.D. Tex. 2019). ↑
- Id. at 771–72. ↑
- Id. at 770. ↑
- See id. at 773–76. ↑
- Bary v. Delta Airlines, Inc., No. CV–02–5202(DGT), 2009 WL 3260499, at 4–5 (E.D.N.Y. Oct. 9, 2009), aff’d*, 553 F. App’x. 51 (2d Cir. 2014). ↑
- Id. at *26–28. ↑
- See Singer, The Anti-Apartheid Principle, supra note 7, at 100. ↑
- See supra Part II.B.1.a (discussing the McDonnell Douglas framework). ↑
- Brooks v. Collis Foods, Inc., 365 F. Supp. 2d 1342, 1346–48, 1358 (N.D. Ga. 2005). ↑
- Id. ↑
- Id. at 1358; see also Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1271–73 (D. Kan. 2003) (denying summary judgment where Black plaintiffs were subjected to a racially infused comment over the intercom by a White Southwest Airlines flight attendant), aff'd, 145 F. App’x. 238 (10th Cir. 2005); Dobson v. Cent. Carolina Bank & Tr. Co., 240 F. Supp. 2d 516, 520–23 (M.D.N.C. 2003) (denying judgment on the pleadings to bank that harassed Black customer). ↑
- The full language is: all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981(a). ↑
- See Elmore v. Harbor Freight Tools USA, Inc., 844 F.3d 764, 766–67 (8th Cir. 2016). ↑
- Id. at 765. ↑
- Id. at 766–67. ↑
- Id. ↑
- See, e.g., Chapman v. Higbee Co., 319 F.3d 825, 829–33 (6th Cir. 2003) (en banc); Phillip v. Univ. of Rochester, 316 F.3d 291, 295–96 (2d Cir. 2003). ↑
- See Chapman, 319 F.3d at 829–32. ↑
- Id. at 828. ↑
- Id. at 828–29. ↑
- See id. ↑
- Drayton v. Toys ‘R’ Us Inc., 645 F. Supp. 2d 149, 153–54, 155–57 (S.D.N.Y. 2009). ↑
- Id.at 157–58; see also Otis v. Wetter, 111 F. App’x 433, 434 (7th Cir. 2004) (discussing possible Section 1981 and Section 1982 claims but rejecting as “far too inconsequential” the store’s discriminatory request to see her credit card (after she swiped) and also deciding the Black plaintiff did not have a claim for security guards’ discriminatory review of the receipts of other Black customers). ↑
- See Drayton, 645 F. Supp. 2d at 158–59. ↑
- See Hunter v. Buckle, Inc., 488 F. Supp. 2d 1157, 1173 (D. Kan. 2007). ↑
- Id. ↑
- See 42 U.S.C. § 1981(a). ↑
- See id. ↑
- Security, Webster’s Dictionary, https://www.merriam-webster.com/dictionary/security [https://perma.cc/FCS7-RW66]. ↑
- Security, Webster’s Dictionary (1865), https://archive.org/details/americandictiona00websuoft/page/1192/mode/2up. ↑
- See Zuyus v. Hilton Riverside, 439 F. Supp. 2d 631, 636 (E.D. La. 2006) (“[P]ursuant to § 1982, . . . a department store detective may not stop and question black customers but not white customers.” (citing Evans v. Tubbe, 657 F.2d 661, 663 n.2 (5th Cir. 1981))). ↑
- See supra Part II.B.2.a. ↑
- See supra Part II.B.2.b. ↑
- See supra Part II.B.2.c–d. ↑
- 379 U.S. 294, 297 (1964). ↑
- See Henderson et al., supra note 8, at xvii–xxv (providing examples of such effects); cf. The Green Book, N.Y. Pub. Libr. Digital Collections, https://digitalcollections.nypl.org/collections/the-green-book?&keywords=&sort=sortString+asc#/?tab=about [https://perma.cc/2UX4-TBXS] (listings of places Black people could visit without fear). ↑
- Singer & Singer, supra note 362, § 60:1 (stating that remedies are to be construed in a liberal manner). ↑
- See, e.g., 42 U.S.C. § 2000a-2; see also 110 Cong. Rec. 9767 (1964) (statement of Sen. Humphrey) (“This plainly means that a defendant in a criminal trespass, breach of the peace, or other similar case can assert the rights created by 201 and 202 and that State Courts must entertain defenses grounded upon these provisions.”). ↑
- Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975). ↑
- In the meantime, although state laws are not discussed in this Article, they may provide respite or even significant alternative coverage in some circumstances, including against discrimination by retail stores. See State Public Accommodation Laws, Nat’l Conf. of State Legislatures (Apr. 8, 2019), https://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodation-laws.aspx [https://perma.cc/L36G-EKV5]; Singer, No Right to Exclude, supra note 7, at 1289 n.13, app. I–III. Outside of this possibility of state protection, the common law on public accommodations may safeguard patrons against discrimination. See id. at 1289 n. 13, 1303–1412. ↑
