Racial Profiling in the Retail Industry

By Myrna El Fakhry Tuttle

Consumer racial profiling is usually built on the misconception that certain ethnic groups are more likely to shoplift than others.

Consumer racial profiling is a serious issue that has not been researched enough in Canada. Different terms are used to characterize consumer racial profiling, such as “consumer marketplace discrimination” or “shopping while Black”.

Consumer racial profiling often occurs in places such as grocery stores, restaurants, clothing stores, department stores, etc. It also comes in various forms, with customers encountering discriminatory treatment based on their race or ethnicity while shopping or seeking services. Employees or security personnel may view these customers as “suspicious” or a “threat” based on their racist beliefs.

What is consumer racial profiling?

According to the Nova Scotia Human Rights Commission (NSHRC):

Consumer racial profiling is the practice of targeting a consumer for discriminatory treatment based on the consumer’s race, or ethnicity, or both. This practice may or may not be intentional. …

Through the literature, consumer racial profiling has been shown to affect members of racialized groups including those who identify as Black, African, Hispanic, Asian, and First Nations.

Anne-Marie G. Harris et al. defined consumer racial profiling as follows:

A type of differential treatment of consumers in the marketplace based on race/ethnicity that constitutes denial of or degradation in the products and/or services that are offered to the consumer.

As specified by the NSHRC, “consumer racial profiling is just a piece of systemic racism and racial profiling.”

According to the Ontario Human Rights Commission, racial profiling is:

Any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment.

The Alberta Human Rights Commission states that racial profiling “occurs when an individual is subjected to differential treatment or greater scrutiny because of negative stereotypes related to their race or other grounds such as religious beliefs, colour, ancestry or place of origin or a combination of these.”

Racial profiling is not a protected ground under the Alberta Human Rights Act (the Act).Nevertheless, the Act protects against racial profiling that leads to discrimination based on race, religious beliefs, colour, age, gender, place of origin, etc.

In practice, consumer racial profiling can include the following:

• Avoidance (ignoring)

• Rejection (refusing service)

• Discouragement (providing slow service)

• Verbal actions (using degrading racial epithets)

• Physical actions (subject to detentions, interrogations, or arrests)

Why does consumer racial profiling take place?

Businesses lose billions of dollars to shoplifting every year. They use different strategies to stop shoplifting, including by hiring security guards and fitting room attendants and by installing video cameras. And often businesses justify racial profiling as another way to stop shoplifting.

However, shoplifter profiling, which is legal, is completely different from racial profiling, which is illegal. Racial profiling is usually built on the misconception that certain ethnic groups are more likely to shoplift than others. This misconception allows employees to profile these customers by focusing on their race rather than their behaviour.

Even when not suspected of shoplifting, certain customers may experience discriminatory treatment in their communications with employees, such as a lack of respect and professionalism and less friendliness.

Some examples of behaviours consumers may encounter include:

• 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

• regularly accused of theft and detained wrongfully

How does racial profiling affect consumers?

Victims of consumer racial profiling can be affected “emotionally, psychologically, mentally, financially and physically.”

Consumer racial profiling can lead to false theft accusations, wrongful detentions, and harassment even if there is no sufficient evidence. Victims of consumer racial profiling may be insulted, humiliated, and abused, which can have a harmful effect on their dignity. In addition, they may not know what to do about the unfair treatment they experience.

According to the Alberta Human Rights Commission, racial profiling may:

– result in an individual’s loss of dignity and self-confidence.

– erode individuals’ confidence in businesses, organizations and institutions. Individuals who are discriminated against as a result of racial profiling lose confidence in the ability of the institutions to serve them in a fair manner.

– disempower individuals. Individuals who are discriminated against as a result of racial profiling may feel that they should not aspire to positions of power or authority in society as they may perceive that they are seen as undesirable by others.

Scott Wortley stated: “To argue that racial profiling is harmless, that it only hurts those who break the law, is to totally ignore the psychological and social damage that can result from always being considered one of the usual suspects.”

What does the caselaw say?

In McCarthy v Kenny Tan Pharmacy Inc., the applicant, a Black woman, alleged discrimination with respect to services and facilities because of her race and colour. She claimed an employee in the respondent store discriminated against her aggressively and rudely by searching her backpack and walking away without apologizing.

The Human Rights Tribunal stated:

In assessing allegations of racial discrimination, the following principles are applicable:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent’s actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices (at para 53).

The Tribunal added:

… anti-Black racism and its subtle manifestations are well-recognized in Canadian law, including the recognition that a Black person can be treated adversely by a service-provider because of a conscious or an unconscious stereotype of Black people being criminals (at para 54).

The Tribunal found the applicant had established her race and colour were a factor in how the employee treated her. The applicant’s race and colour were not the sole factor but were a significant factor in the adverse treatment. The Tribunal concluded the respondent store was liable for the employee’s conduct and ordered the store to pay $8,000 because of racial profiling.

In Wickham v Hong Shing Chinese Restaurant, the Human Rights Tribunal found that the applicant and his three friends, who were all Black, were racially profiled when a Chinese food restaurant asked the friends to pre-pay for their meal. 

The Tribunal stated:

 … anti-Black racism often manifests itself in subtle ways. A prevailing and particularly pernicious stereotype that is sometimes applied to Black people is that they are criminals, or have a propensity towards criminal activity… The stereotype of “Black person as criminal” is closely related to racial profiling, which is a form of racial discrimination (at para 38). …

In essence, the applicant was presumed to be a potential thief in waiting despite any evidence to that effect. His mere presence as a Black man in a restaurant was presumed to be sufficient evidence of his presumed propensity to engage in criminal behaviour. At its core racial profiling is a form of shorthand that enables the perpetrator of the behaviour to assume certain facts, and ignore others (at para 45).

The Tribunal concluded by saying “the applicant provided a detailed and nuanced explanation of the impact that the incident had on him. He alluded to feelings of helplessness, and frustration that despite his academic achievements he was still treated as a second-class citizen” (at para 46).

The Tribunal awarded the applicant $10,000 in damages for injury to his dignity, feelings, and self-respect.

Commentary

In 2017, the NSHRC, in consultation with the Atlantic division of the Retail Council of Canada, launched an online course called “Serving All Customers Better.” The NSHRC’s goal was to encourage and help businesses address and prevent consumer racial profiling.

To prevent consumer racial profiling, businesses need to have zero-tolerance policies banning the practice. They must also educate their employees about the meaning of racial profiling and discipline employees who engage in it. Consumers should be able to go shopping without experiencing racial profiling. Failing that, they should know their rights and where to get help if they have a negative experience.