CONSUMER RACIAL PROFILING - THE NEED FOR POLICY ACTION
Montreal, December 31, 2013
The Holiday Season is a special time for family reunion, celebration of life, spiritual renewal, and shopping for gifts. For many people, shopping can be a joyful or financially exhausting activity. For others, shopping can be a trying experience that can lead to detention and arrest, because of their race.
In Spring 2013, the Nova Scotia Human Rights Commission (NSHRC) produced a comprehensive study on consumer racial profiling (CRP), making it the first statutory human rights agency in Canada to tackle this form of discrimination, which many racialized, especially Black, consumers, know too well as “Shopping While Black.”
The 130-page report, entitled Working Together to Better Service Nova Scotians, examines the practice of CRP in the retail and service sectors. CRP has been the target of much civil rights litigation in the U.S., involving major chain stores such as Macy, Home Depot, and Sears, as well as financial institutions and other commercial establishments. The NSHRC’s report relies on focus groups and a survey of almost 1,200 individuals from seven major racial or ethnic groups (Aboriginal, African Canadian, Asian, Latin American, Middle-Eastern, Muslim and White) in the Halifax Regional Municipality, Sydney and Digby, which yielded important anecdotal evidence. An extensive review of mostly American social science literature was also conducted (see http://humanrights.gov.ns.ca/retail-and-services-sector).
Consumer Racial Profiling Defined
By relying on data generated from the research, the report provides the following definition of CRP:
Consumer racial profiling can take different forms, including:
- Avoidance (ignoring);
- Rejection (refusing service);
- Discouragement (providing slow service);
- Verbal actions (using degrading racial epithets), and
- Physical actions (subject to detentions, interrogations, or arrests).
The report lists examples of “everyday acts of racism” directed at racialized shoppers, who can be:
- Followed as soon as they enter a shop;
- Searched physically or having their belongings searched;
- Removed physically from the store without just cause;
- Questioned about their ability to afford a product or service, and
- Regularly accused of theft and detained wrongfully.
A recent high-profile incident of CRP involves Oprah Winfrey. While shopping in a Swiss boutique, Oprah was told by a clerk, who did not recognize her, that she would not be able to afford a $38,000 Tom Ford bag. This is a good illustration of how, due to CRP, a Black person is deemed at the outset to be financially incapable of buying an expensive product.
The NSHRC deserves praise for its pioneering work which gives an official name to an all too common practice. However, the impetus for such an important study on CRP is not the result of coincidence or political benevolence, but grass-roots pressures for change.
Nova Scotia has a vigilant First Nations community as well as a strongly assertive African Canadian community, both of which have experienced generation after generation of racism, especially institutionalized racism, and fought back. Their struggles lead to some of the most important legal, political and social actions in Canada against racial injustice, the most notable of which is the Royal Commission of Inquiry on the Donald Marshall, Jr. Inquiry (1989); the R. v. R.D.S. case, which went to the Supreme Court on the issues of reasonable apprehension of bias in the judiciary and social context in judging (1999); and the first human rights tribunal decision on racial profiling in policing (Halifax Regional Police Service v. Johnson , 2003).
The report does a great service to victims of racial discrimination in the retail and service sectors by expanding on the conventional notion of racial profiling, which in Quebec is still defined by the Quebec Human Rights and Youth Rights Commission as follows:
While recognizing that CRP is “strong linked to racial profiling”, the NSHRC report stresses an important dimension involving the “denial or degradation of the product or services offered to the consumer” which, as in the case of racial profiling, may be or may not be intentional.
CRP is, in fact, a far more pertinent concept because it applies to everyday activity such as shopping, banking, and eating out. Behind the concept is the acknowledgement that every person is a valuable consumer of products and services, and can consequently experience a host of racially biased attitudes and practices, such as being ignored, receiving slow services, being followed or watched in stores, being searched, or being questioned about one’s ability to afford a service or product. While racial profiling in law enforcement challenges the core tenets of our liberal democracy, CRP challenges the daily ethos and practices of our market economy. Where both practices join is that CRP can also be a chilling conduit to criminalization and arbitrary reduction of equal citizenship rights.
Will Quebec and other jurisdictions follow the groundbreaking example set by NSHRC? There have been cases filed with the federal and Quebec human rights commissions by Black and other racialized consumers who have encountered practices that can be categorized as CRP. Three cases filed by CRARR illustrate CRP:
• A Black man in his 60s was detained by a security guard and then interrogated by two police officers, in a Maxi store in the North-east end of Montreal, because he was suspected of stealing, even after he paid at the cash. He was charged with theft before the officers, who relied on the guard’s account, before checking the videotape. It was only after charging the man that the police officers viewed the videotape and realized that the security guard got the wrong man. The store is patronized by a large Haitian clientele and has regularly experienced numerous thefts;
• A Black man in his 30s went to Canadian Tire to purchase a box of tools, for which he paid at the cash. Upon exiting the store and walking through the electronic detector, he was stopped by a cashier who claimed that he did not pay and wanted to check his receipt, because she later admitted that he “looked suspicious.” He showed her the receipt, told her that the detector did not ring, which confirmed the fact that he did pay, and walked away. When he got to his car in the parking lot, he saw several store clerks come out and look around. Believing they were looking for him, he drove up to them and enquired; he even suggested that the police be called if doubt lingered. The manager went to check the video, which showed that he did pay, and apologized.
• A Black man in his 60s went to buy gas at an Esso station in the West end of Montreal. As he was filling up his tank, he heard a clerk tell him on the sound system that he must deposit $100 first; since he wanted to buy only $50 in gas, he went inside to ask the clerk why he had to make that deposit, since this never happened to him at other gas stations. He insisted on depositing only $50. The clerk purportedly told him: “You Black people are stealers” and caused the station problems. An exchange over the racist comments ensued. The man left $50 on the counter, went outside to fill $43 worth of gas, and then decided to call the police to report the incident. Two officers came and took his version; one officer went to talk to the clerk, and then came out to give him his $7 change and receipt. The officer also told the man not to set foot in the station again.
Challenges in Treating CRP Complaints
How CRP, and generally speaking, racial profiling cases are handled by statutory human rights agencies should be of public concern. Based on our casework experience, several factors make this concern legitimate.
First, systemic bias in staffing produces, year after year, an investigative team with a net preference for some groups of persons over others, leading to a dismal representation of racialized and Aboriginal persons with real-life knowledge of or experience with race discrimination. As a result, the bulk of investigators have difficulties conceptualizing racism beyond its elementary explicit, intentional and direct form.
Second, lacking a proper policy framework on CRP and race competency, even the most well-intentioned investigators would look for the wrong things and employ the usual simplistic lens, whereby complainants are deemed to be overly sensitive about a simple incident of poor service delivery that is presumed at the outset to affect every consumer or service user equally, regardless of race, ethnicity or gender. The focus of an inquiry would then be erroneously placed on a victim’s credibility, as well as the respondent's intent, even when courts hold that intent is not a necessary evidentiary factor as it is very difficult to prove.
In so doing, the investigation would exclude social context, circumstantial evidence (as courts have increasingly required) and an independent review of organizational policies and practices. In other words, personalize a case instead of examining both individual as well as systemic factors.
In this regard, a complaint of CRP tends to be either dismissed the case due to the lack of evidence of a link with a complainant's race, or downgraded to one that involves some forms of bias (usually racial slurs or discriminatory attitudes in an establishment), but that is considered not “in the public interest” for the human rights commission to bring it and represent the victim before the human rights tribunal.
The problem, however, does not lie with the investigation alone. Here lies the third issue: it also has to do with how investigation findings are analyzed and decided by managers and commissioners, most of whom are also not racialized or Aboriginal; lacking race competency, these decision-makers could in turn buy into incorrect race analysis and dismiss the case for lack of evidence, again often with the best intentions.
The NSHRC has shown how vision, pro-active engagement, and community accountability can lead to promising change and consequently more effective protection from discrimination. For that, it sets a new national benchmark for sophisticated civil rights enforcement in this country in response to more complex forms of race discrimination. Other human rights commissions in Canada must do the right thing and adopt as soon as possible a similar policy on consumer racial profiling.