Racist Clerk Puts Dillard’s on the Defensive

April 9th, 2007 by

Dillard’s is a major department store chain, with 330 stores in 29 states, mostly in the south. Their motto is “The Style of your Life.” I am not sure what that is supposed to mean, but one thing is clear: Dillard’s does a lot of hiring. Their website, featuring a handsome African American in a three button suit, tells you what they are looking for in an employee:

Are you a professional person of integrity who enjoys working with the public, is outgoing, energetic, reliable and who wants to join a dynamic retailer?

We can assume that they are not looking for bigoted individuals with a particular hatred of African Americans. But they hired one (with a spotty employment record) and they kept her (after several ugly incidents with customers). Now they find themselves on the defending end of a lawsuit.
A federal appeals court ruled that a Kansas City couple could pursue its racial discrimination lawsuit against Dillard’s. The 8th U.S. Circuit Court of Appeals reversed a lower-court judge, who had thrown out the lawsuit filed by Rodney and Charlan Green in 2004.
Big Trouble in a Simple Purchase
In August 2002, the Greens went to a Dillard’s store in Kansas City to buy a handbag, purse and watch. They asked a clerk to help them, but she refused and then followed them around, glaring at them and muttering something under her breath. When the Greens made a $500 purchase from a different clerk, the first clerk questioned their ability to pay for it.
Rodney Green asked the clerk to leave them alone, then asked the other clerk to call the manager. While Green waited for his wife to purchase the watch, the clerk used a racial epithet and walked away.
After the manager arrived, the Greens decided that they had had enough of the Dillard’s life style and returned their just-purchased items.
The manager apologized for the clerk’s behavior and admitted that the store had had past problems with her. The clerk was fired the next day.
The Sales “Contract”
The Greens sued Dillard’s two years later, alleging the company had violated their right to “make and enforce contracts,” a civil rights protection adopted shortly after the Civil War and amended in 1991. In the Greens’ case, that right was in the context of a simple retail purchase.
The federal court determined that “their evidence includes not only a most egregious racial slur, but also a series of actions which a trier of fact could find as a whole thwarted their attempt to make and close a contract with Dillard’s for the wristwatch.”
If you are thinking that it’s a stretch to include the purchase of a retail item as a “contract,” you’re right. This is a new interpretation of a long-standing law. The Greens are hoping to parlay this innovative interpretation into $5 million. While the federal court allows the case to continue, that in itself is no guarantee of success. Given that the Green’s voluntarily returned their purchases, the lawsuit may be a long shot.
HR Fundamentals
Win or lose, Dillard’s careless approach to human resource management raises an important issue for all employers whose workers are in contact with the general public. Dillard’s apparently hired a woman with some serious attitude problems. They compounded this mistake (“negligent hiring”) by keeping her on the job (“negligent retention”), despite racist behavior toward certain (minority) customers. Regardless of whether the purchase of a watch ends up being a “contract,” I suspect that Dillard’s will settle with the Greens. Dillard’s put the wrong person on their sales team. They kept her there, despite poor performance. They have deep pockets, so they are going to pay.
One final thought: I sure hope Dillard’s followed their own written procedures when they terminated the racist sales clark. The prior problems had better be well documented. If not, Dillard’s could find themselves defending a wrongful termination claim filed by the (“misunderstood, maligned”) clerk. It’s the American way.
Thanks to Overlawyered for the heads up on this situation.