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Nike Joins Ranks of Retailers Sued Over ‘Shopping While Black’

July 21, 2020, 8:56 AM

Former track star Joel Stallworth wore Nike as a college All American and when he won a gold medal for the Nike-sponsored U.S. team at the 2008 Indoor World Championships.

Stallworth loved Nike from a young age, he told Bloomberg Law. He was inspired by the brand’s collaboration with basketball legend Michael Jordan, and he and his family remained loyal customers long after his days as an athlete ended.

But last summer, Stallworth said, his view of his once favorite brand was shaken after a confrontation over a purchase at his local Nike store in Santa Monica, Calif. After the encounter, which his wife taped and was later aired on all the local major television networks in Los Angeles, Stallworth filed a civil rights complaint in federal court.

Stallworth—like other Black customers who have sued other top U.S. retailers including Macy’s, Dillard’s, and Walmart— alleges a pattern of racial profiling that has led to unwarranted harassment, detention and even false arrests.

Legal attempts to hold retailers accountable for discrimination face an uphill battle in court, according to experts and attorneys interviewed by Bloomberg Law.

But some Black consumers have achieved significant wins, if not in dollars, then at least in negotiating deals for new anti-bias policies and safeguards and, perhaps equally important, in securing hard data on the depth of the problem.

Change Through Litigation

Stallworth, in his suit, says he, his wife, TaMiya Dickerson, and their 18-month-old son, Sammy, were racially profiled, harassed, and unlawfully detained after buying an item at the Santa Monica Nike store.

A manager with an alleged history of racist behavior, accompanied by three armed police officers, confronted the Stallworth-Dickerson family on the crowded street in front of the store, where she falsely accused them of stealing a child’s basketball, Stallworth said in an interview.

The family returned to the store, escorted by the police, where they produced their receipt, turned in the ball, and obtained a refund.

Over the past year, Stallworth and Dickerson reached out to Nike about their treatment. It was only after being repeatedly denied a chance to speak to anyone in a position of authority, they said, that they filed suit.

“We’ve come to the conclusion as a family, that the only way to get this malfeasance to come to an end, to create change, to force [Nike] to come to the table, to look internally and change their institution so that our civil rights are protected, is to sue them,” Dickerson said.

The complaint’s July 4 filing in a California federal court came just over a month after the police killing of George Floyd sparked widespread protests.

Nike didn’t return requests for comments about the lawsuit.

Profiling Hard to Track

Data on these incidents are hard to come by because a kind of “private justice system” exists where most such profiling goes unreported to the police or other public officials, Shaun Gabbidon, professor of criminal justice at Pennsylvania State University in Harrisburg, said.

The true extent of the practice is consequently hard to gauge. Nonetheless, Gabbidon said he’s gleaned some information on the extent of the problem by analyzing 82 lawsuits similar to the one against Nike for his 2020 book “Shopping While Black: Consumer Racial Profiling in America.”

His study reveals that the burden of proof to hold retailers liable for alleged harassment is very high, in part because it’s difficult to show the kind of particularly egregious behavior needed to convince jurors damages are warranted.

Barriers to Winning Cases

The difficulty of winning these cases is due to how federal courts interpret civil rights law, Suja Thomas, a professor of law at the University of Illinois, said.

The two primary laws that apply, Title II of the Civil Rights Act of 1964, and 42 U.S. Code Section 1981, have broad language that should protect people from discrimination in retail settings. But courts have interpreted the laws narrowly, holding that shoppers don’t have a right not to be racially profiled or accused of shoplifting.

Thomas points to a class suit against Dillard’s. The U.S. Court of Appeals for the Tenth Circuit ruled the retailer wasn’t liable to Black shoppers who alleged the store engaged in discriminatory surveillance because they hadn’t actually been denied the opportunity to buy the company’s products.

Freedom from racially discriminatory security practices isn’t a benefit or a privilege of an implied contractual offer to let a person shop, it held.

“In the U.S., there is a customer caste, where people of color are treated in inferior ways to White people in many ways, including in contexts like the Nike situation, and the courts continue to allow it to happen,” Thomas said.

Positive ‘Policing Effect’ Cited

Greg Kafoury said his firm, Kafoury & McDougal in Portland, Ore., has filed a half dozen or so discrimination and false arrest claims on behalf of Black customers over the last year alone.

“The traditional pattern is we win on false arrest and lose on the discrimination claims,” Kafoury said, adding that jurors feel uncomfortable concluding their local stores have racist practices.

Nonetheless, some attorneys believe pursuing claims against retailers can have far-reaching benefits.

“The policing effect of those cases can change corporate and personal behavior,” said Dan Stormer of Hadsell Stormer Renick & Dai LLP, who represents the Stallworth-Dickerson family.

Gabbidon said lawsuits are the only way to build records of what happens inside retail stores. Discovery in some suits has resulted in the release of internal store data showing customer contact logs and security records, which are usually private.

Gabbidon pointed to a class action filed in 2005 against Macy’s which ultimately disclosed company data showing most detainees at its New York stores were either Black or Latino, and more likely to be handcuffed than White detainees.

Practices for Industry Change

Leon Buck, who leads the National Retail Federation’s diversity and inclusion working group, wouldn’t directly comment on the bias suits. But, he said, most retailers have been taking proactive stances, actively engaging with their employees about how to prevent racial bias.

NRF, of which Nike is a member, has retained Jackson Lewis PC to advise members on how to diversify their work forces, train employees on implicit bias, and engage in active dialogues with the communities of color they serve, he said.

Some attorneys pointed to Starbucks as an example. After a 2018 incident where two Black men were arrested at a Philadelphia store, the company said it rolled out initiatives including free classes for employees and the public on empathy and implicit bias, and an annual civil rights assessment conducted by Covington & Burling LLP.

Retailers should look to the Macy’s suit as a model, Gabbidon said.

The settlement required that Macy’s maintain complete security and customer contact records. It also must review and monitor its detention processes, provide regular training on racial profiling, and submit to anonymous auditing and annual compliance meetings.

Peeling Back The Layers

Stallworth and Dickerson hope that their suit can bring about positive change. They also said Nike’s self-examination must consider why its executive team, made up exclusively of White members, looks so different from the athletes on whose successes the brand’s reputation has been built.

“I was conditioned to love Nike,” Stallworth said. “You’d see me repping the brand because I believed what they were selling.”

“But I began to peel back the layers, and they’re not who they portray themselves to be,” he said.

Addressing its lack of diversity in leadership would be a good start towards preventing other Black families from experiencing what happened to his, Stallworth said.

“With Nike’s resources, they can help us,” he said. “They can look in the mirror and make the change.”

To contact the reporter on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com

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