Nordstrom's Terrible, Horrible, No-Good, Very Racist (and Almost Entirely Legal) Racial Profiling Scandal

Three Black teenagers shopping for prom wear at a St. Louis-area Nordstrom's had the police called on them for suspected shoplifting. But that's skipping to the end of the story. Here's the beginning:

Mekhi Lee, Eric Rogers and Dirone Taylor were shopping at the Nordstrom Rack on Thursday when they noticed store employees closely eyeing them and following them through the aisles. Lee has just completed his freshman year of college and was with his
longtime friends, Taylor and Rogers, who were shopping for prom.

[Local NAACP President Adolphus] Pruitt said that one of the men wanted to try on a shirt, so he removed his hat to do so. The store employees kept following the men, Pruitt said, so they decided to leave.

Shortly after, the man who had tried on the shirt realized he left his hat in the store, so the three of them went back. That’s when they were approached by an elderly white woman who had also been shopping.

“Now they’re confronted by an elderly white woman in the store who says to them, ‘Would your parents and grandparents be proud of what you’re doing?’ ” Pruitt said. The woman also referred to them as “a bunch of bums,” according to Pruitt.

At that point, the men asked to speak to a store manager, but employees told them they couldn’t meet with one, Pruitt said. The men left the store a second time and turned back to see the manager come to sidewalk and wave.

That’s when they chose to return, Pruitt said.

“They decided, ‘We have money, we came here to shop and demonstrate to them that we aren’t thugs. We have money like anybody else,’ ” Pruitt said. 

While the men were making their purchases, the elderly woman was in line waiting to check out behind them. The manager, who is white, opened up a new register to ring the woman up, Pruitt said.

The manager then escorted the white woman to her car, Pruitt said.

While the men were paying for their items, they heard staff employees say they were calling the police. Pruitt said the men left the store and waited for the police to arrive.

Title 42, Section 1981 of U.S. Code is one of the single oldest civil rights laws in America. Enacted as part of the Civil Rights Act of 1866, it protects the equal rights of all persons to "make and enforce contracts" (including retail transactions) notwithstanding race. As the Supreme Court has made clear, this statute "protects the would-be contractor along with those who already have contracts." Indeed, in Runyon v. McCrary, the Court described a circumstance where individuals "sought to enter into contractual relationships" but were denied the ability to do on basis of race as "a classic violation of § 1981."

So you might think that, at least if it could be proven that the behavior of Nordstrom's employees -- shadowing and surveilling the customers, denying their request to speak to a store manager, then having that manager give them a mocking wave goodbye when they left in disgust, opening a new register for the benefit of a White customer behind them in line who had called them "bums" -- were race done because of race, it would violate federal law. The customers' ability to make a desired contract with Nordstrom's (here, buying prom clothes) would have been obstructed and interfered with on account in race -- in open defiance of Section 1981.

Fun fact: You'd be wrong. And again, you'd be wrong even if it was absolutely, 100% incontestably proven that Nordstrom's did this only to Black customers, due to avowedly racist beliefs acted on by store employees.

St. Louis, Missouri, you see, lies in the jurisdiction of the United States Court of Appeals for the Eighth Circuit (indeed, the Eighth Circuit is based in St. Louis). The Eighth Circuit, for its part, is the single most conservative appellate court in the country. And so Eighth Circuit observers perhaps would not be surprised to find out that in 2009 the Eighth Circuit, sitting en banc, handed down a 6-5 decision in Gregory v. Dillard's which immunized virtually all of the above behavior from legal challenge under Section 1981.*

The court concluded that neither a department store's practice of explicitly racist shadowing and surveillance, nor racist remarks or gestures directed at the customers, nor these things in conjunction, can make out a Section 1981 violation even in circumstances where it is indisputably the but-for cause for why a customer who otherwise planned to purchase a product decides not to do so. Hence, until Nordstrom's actually called the cops on the customers -- and perhaps not even then -- everything it was doing was wholly lawful under Gregory even if there was no question that it was targeting the Black customers due to their race.

The Gregory decision held that, as a matter of law, no amount of racial harassment or disdain directed at shoppers acts to "block" or "thwart" the creation of a contract -- only an explicit refusal to make a sale will do the trick. So if you're a Black shopper in Missouri and being nakedly racially profiled causes you to leave the store in disgust -- hey, that's on you. As far as the Eighth Circuit is concerned, you should have grown a thicker skin.

And yes, in case you're curious: part of the Eighth Circuit's rationale for why Section 1981 had to be constricted so as not to include racist shadowing, surveillance, and harassment is that these practices might be necessary to stop "shoplifting". Of course.

* The lead dissent in Gregory was authored by Judge Diana E. Murphy, whom I clerked for several years later. It was joined by Judges Bye, Melloy, Smith, and (in relevant part) Benton. Judges Murphy and Bye were Clinton appointees, while Judges Melloy, Smith, and Benton were all George W. Bush appointees. All six judges in the majority were Republican appointees. Judge Smith was also the only African-American judge serving on the Eighth Circuit at that time, and I believe only the second ever to sit on that court.