Race bias case against Dillard's going to trial

Court overturns dismissal of discrimination allegations against store
Tuesday, July 24, 2007 | 12:00 a.m. CDT; updated 9:58 p.m. CDT, Thursday, July 17, 2008

COLUMBIA— Plaintiffs in a lawsuit against Dillard’s Inc. will get their day in court after a decision last week by a federal appeals court.

The 17 former customers and employees, mostly from the Columbia area, sued the retailer in 2003 in U.S. District Court, alleging that Dillard’s at Columbia Mall systematically discriminated against black customers. They claimed service staff and security guards followed and watched them closely while they were in the store, yet ignored them when they wanted help making purchases.

In the suit, several former Dillard’s employees acknowledged an “unwritten” policy of discrimination against black customers going back over a decade that included heightened surveillance and a double standard for refunds on returned items.

One important issue in the case is whether federal and state civil rights laws forbid discriminatory treatment by a retailer even though the retailer doesn’t technically deny the customer the right to make a purchase.

Columbia attorney William Rotts, who represents the plaintiffs, said he was “very pleased” that the appeals court overturned the U.S. District Court’s decision to dismiss the case.

“The interesting irony of this case is that it almost goes full circle to the kinds of acts that sparked the Civil Rights movement in the first place,” Rotts said.

Dillard’s defense is that no matter how their employees may have treated black shoppers, as long as the shoppers were able to buy what they wanted to buy, the law was not violated, Rotts said.

That logic harkens back to the type of discrimination that existed before the Civil Rights Act, he said.

“It’s like saying, if someone has to use a different water fountain, that’s OK because they still get their water,” Rotts said.

Attorneys for Dillard’s, Lynn S. McCreary and Jeremiah J. Morgan, with the law firm Bryan Cave LLP in Kansas City, did not return calls about the decision.

The suit was brought in 2003 by Crystal Gregory and Alberta and Carla Turner of Columbia.

“The Turners’ worst experience occurred on Memorial Day 2002,” Eighth Circuit Judge Diana Murphy wrote in the appeals court’s decision. In that incident, according to the suit, the Turners were shopping in the store when Alberta Turner noticed a security guard following her daughter and granddaughter. When Carla Turner confronted the guard and asked him why he was following her, he said nothing and continued to trail her throughout the store.

“The family felt so humiliated they had to leave the store,” Murphy wrote. “On their way out, Alberta went up to a sales associate and told her that the store had just lost hundreds of dollars in sales. With a ‘weird grin’ on her face, the associate responded, ‘So, so what?’”

Alberta Turner, reached by telephone at her home in Columbia, said she had no comment on the lawsuit.

Several other plaintiffs claimed to have been similarly harassed at the Columbia store. Still others complained that they were denied service altogether.

“When Michael Richmond was shopping for jewelry with his mother, he told a sales associate he wanted to look at a particular item in a closed display case,” Murphy wrote in the court’s decision. “Instead of showing it to him, the sales associate repeatedly emphasized the price of the item and suggested he look for merchandise at the markdown counter.”

Former Dillard’s employees acknowledged discriminatory practices in the store.

“Tammy Benskin, a white employee in the men’s fragrance department from 1997 to 1998, testified that Dillard’s had an unwritten policy of closely surveilling and following black shoppers. According to Benskin the store’s general security code — Code 44 — was customarily announced over the employee intercom whenever an African American came into the store. The code was almost never used when a white shopper entered,” Murphy wrote.

Former Dillard’s employee Maren Snell testified that when black shoppers tried to return items they found themselves subjected to a different standard than whites. They were required to show both a proof of purchase and a receipt, while white customers were never asked for a receipt as long as they had the proof of purchase.

The federal trial court dismissed the lawsuit, stating that since the plaintiffs had not been “questioned, searched, detained, or subjected to physical activity other than being followed or subjected to surveillance,” they could not state a claim under federal civil rights laws.

But the Eighth Circuit disagreed.

“(The plaintiffs) described not merely being watched, but being treated in a demeaning and humiliating fashion by Dillard’s sales associates and uniformed security guards,” Murphy wrote.

From the testimony of Dillard’s former employees, Murphy wrote, one could reasonably believe that the plaintiffs’ experiences were not just a series of isolated incidents, “but part of a larger pattern of race-based harassment and denial of service at the Columbia Dillard’s.

Unless Dillard’s appeals the Eighth Circuit’s decision to the U.S. Supreme Court, the case will now go back to the Western District for trial.

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