Shopping While Black: Applying 42 U.S.C. § 1981 to Cases of Consumer Racial Profiling

Abstract

This Article describes the practice of Consumer Racial Profiling (CRP) by attempting to quantify it and to identify its causes and its effects. The author presents the case against Cracker Barrel Old Country Stores to illustrate the nature of modern-day consumer discrimination. The Article identifies the applicable laws and assesses the likelihood that plaintiffs will prevail under each theory. Concluding that § 1981 of the Civil Rights Act of 1866 offers CRP plaintiffs the best chance for recovery, the Article includes an analysis of the § 1981 claims against Cracker Barrel based on the case law developed since 1990. Noting the reasons why few CRP plaintiffs succeeded in cases of consumer harassment, the Article concludes that the federal courts must construe the statute more broadly to ensure, as set forth in a piece of civil rights legislation from 1866, "that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man."