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Public Accomodations Discrimination Revisited

Esq | , Karen A Khan | 12/8/2010, 5:49 p.m.

Last year I wrote about a form of discrimination that many folks have faced in some form or another. It is called public accommodations discrimination. I termed it 'racial profiling' when customers enter places of public accommodation, such as a drug store or a grocery store, and gave the following scenario:

An older Black man walks into a busy downtown drugstore chain looking to purchase some items and to submit a prescription. He is wearing jeans, a T-shirt and a baseball cap. He has a backpack slung over one shoulder and a newspaper in one hand. The gentleman walks down the aisles looking for the items he intends on purchasing, but can't locate them. So, he decides to just go to the pharmacy to drop off his prescription [and to ask for help in locating the items he wished to purchase]. [Within two to three minutes after he enters the store], as he approaches the pharmacy, he hears someone behind him allegedly saying,['What did you put in your pocket] I saw you steal.' The person who accused the man of theft is a store employee [Manager]. The man empties his pockets. Nothing but his keys and his prescription. But, that isn't good enough. [At the Manager's request, the man opens his newspaper. Again, there was no unpaid merchandise belonging to the store]. There is a subsequent demand to search his backpack. He refuses [and calls the police to report the behavior he was being subjected to]. The police arrive. A search of the man's backpack occurs. The police find only personal belongings. Racial comments are allegedly made by the employee [Manager] -['Blacks always coming in and steal'].

The man was then barred from entering the store in the future, [at the insistence of the Manager] under threat of arrest. He never did get to drop off his prescription and suffered as the result. He is disabled.

At the time the article was written, there was no Court opinion in the District of Columbia which provided a legal analysis on such claims. But, as of November 2010, there is at least one opinion which discusses claims of public accommodations discrimination in the District. The scenario I gave involved an incident that really happened, but did not contain all of the allegations because the case was pending before the Court and discovery was ongoing. The case is

CVS filed a Motion asking the Court to dismiss the case as a matter of law. But the Court denied the Motion, and found that a reasonable jury could find that the Plaintiff was the victim of unlawful race and personal appearance discrimination in places of public accommodations. The Court also found that a reasonable jury could find that CVS defamed the Plaintiff by accusing him of theft. In allowing the case to proceed to a jury trial, the Court set forth the elements of a claim for public accommodations discrimination as follows:

Graham v. CVS, Inc., No.: 2009 CA 006426 B (Zeldon, J.).