IV. CONCLUSION
Even in the twenty-first century, minority citizens of the United States still find themselves walking into a store and being met with hostility and humiliation based on the color of their skin. Federal and state anti-discrimination laws are designed to address the ongoing discrimination against members of protected classes in places of public accommodation, but they are far from perfect. Black shoppers like Crystal Gregory or Michael Richmond, after being treated with derision and suspicion because of their race while shopping, had limited options of recourse.
Federal law does not adequately protect against discrimination in retail stores. Title II does not include retail stores as places of public accommodation. Section 1981 protects against discrimination only if a contractual relationship exists. Thus, despite hostile treatment by the store, unless the customer is actually prevented from making a purchase, she has no claim. The overt use of a racial slur may sometimes be enough to qualify as constructive denial of service, as was the case in Green, but in Gregory or Richmond's case (and in most cases) discriminatory action is not as overt. As such, federal law provides minimal protection for those victims of modern, “smart” racism, which a reasonable person may find to be objectively discriminatory, but the laws simply do not address
State law, though broader than federal law, is also still less than ideal. Though many state laws do include retail stores as places of public accommodation, and though none of the state laws require a contractual relationship (unlike § 1981), the differences between states and the lack of clarity in many of the statutes leave room for improvement in the state law arena as well.
Ultimately, both federal law and many state laws should be amended. Title II should include retail stores, as the reasoning behind excluding them, as noted in the Congressional Record, is unsound. Courts interpreting the scope of § 1981 should use a test focusing on whether discrimination occurred, similar to the Sixth Circuit. At the same time, courts should also create a higher evidentiary standard for such claims and be more willing to dismiss frivolous cases with facts that no reasonable person could interpret as discrimination. State laws should be amended to either become all-inclusive like California, or, at the very least, make clear as to whether retail stores are included as places of public accommodation.
Black shoppers and white shoppers should be allowed to enter the same store, subject to the same terms and conditions, and be treated with the same level of respect and dignity. This does not mean that minority shoppers may flood the courts with discrimination claims. Thus, while retail stores should be included in both federal and state public accommodation statutes, the ultimate goal is not to grant minority shoppers with meritless claims an open door to the courtroom. Rather, the law should be, as it was intended, to simply ensure that “the rights ... for all people, without regard to race, age, marital status, creed, color, sex, handicap, sexual orientation or national origin, may be effectively safeguarded.”
