Paper: Lawful discrimination by businesses creates ‘customer caste’


Photo of Suja A. Thomas, the Peer and Sarah Pedersen Professor of Law at Illinois

Judicial rulings on the leading civil rights laws have created a “customer caste” in which people of color are subject to legal, daily discrimination in retail stores, restaurants and other places of public accommodation, says Suja A. Thomas, the Peer and Sarah Pedersen Professor of Law at Illinois.

Photo by L. Brian Stauffer

Judicial rulings on the leading civil rights laws have created a “customer caste” in which people of color are subject to legal, daily discrimination in retail stores, restaurants, gas stations, hotels, banks and airplanes, says a new paper from a University of Illinois Urbana-Champaign expert who studies discrimination law.

“Following and watching people in retail stores and giving inferior service to restaurant customers based on their race are among the judicially condoned conduct that occurs regularly by businesses to the detriment of people of color,” said Suja A. Thomas, the Peer and Sarah Pedersen Professor of Law at Illinois.

Title II of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866 were supposed to protect Black people and other people of color from discrimination and segregation in places of public accommodation. But even in a post-Jim Crow world, the legal treatment of people of color in public settings looks “alarmingly similar” to some of the conditions before Title II was enacted, Thomas said.

“In their rulings, the courts have created what I call a customer caste, such that people of color are treated differently by public businesses,” she said. “The reason I’ve used the term caste is that it’s a term used to describe people who are treated better or worse in a social system. And the courts have made it perfectly legal for businesses to have this de facto caste system.”

While it would be illegal for a business to force a customer to leave because of their race, if they were followed in a store or given deliberately bad service because of their race, that’s been deemed legal by the courts, Thomas said.

“The reason courts say those actions aren’t discriminatory is that, although the patrons are being followed or subject to poor customer service, they’re not being prevented from making a purchase or completing a transaction,” she said. “That is the only action that’s protected under the law. Courts have said being followed because of your race is legal.”

In the paper, Thomas said the courts’ statutory interpretation of Title II and Section 1981 is “fundamentally incorrect.”

“On its face, you would think that applying extra surveillance to a person of color in a retail store would run afoul of the law,” she said. “I analyze if, in fact, courts have correctly interpreted the law.”

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 laws by “adopting the heavily criticized employment discrimination case law and requiring a common law-like contractual relationship to such transactions,” according to the paper.

“Each of those statutes have incredibly broad language,” Thomas said. “What I do in the paper is go through the language in the statute and the legislative history of the statutes, and I show that, in fact, there’s really no other interpretation other than to say that all of this activity that courts have found legal should be considered illegal.

“The courts created this problem, and they’re wrong.”

The paper also outlines how the law can change.

“There are three possible avenues for change,” Thomas said. “One is Congress, which can direct the courts to interpret the language broadly.”

The second is the courts themselves.

“The Supreme Court could tell the lower courts that they’re not interpreting statutes correctly,” she said. “This is a difficult route for a few reasons. First, the opinions of the justices on the interpretation of the statutes is unclear. Second, assuming a majority agrees with a broader interpretation, the court has to accept one of these cases – and few cases are brought, due to the current state of the law.”

But perhaps the most efficient change would come from major corporations, she said.

“Corporations can direct their employees to not do these things – to not target Black people and people of color for this extra surveillance or inferior treatment,” Thomas said.

The paper will be published in the California Law Review.

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