In August 2002, the Greens, a black couple, were shopping in a local department store in Kansas City. They allege that a sales clerk named Linda McCrary refused to help them purchase several items, forcing them to wait for another clerk (who did assist them in completing the $500 purchase). They then allege that, while waiting for that helpful clerk to sell them a watch, they heard McCrary curse at them, using a racial slur, and then stalk off. The helpful clerk immediately apologized, as did a sales manager. But nonetheless, this incident was so traumatic for the couple — including the husband, who was a police officer — that they not only felt too distressed to finish buying the watch, but they felt the need to return the items they had already purchased. A day or two later, the store manager called the Greens, apologized again, told them that McCrary had been fired, and offered them a 20% discount off their purchase. After they rejected his offer, he sent them a letter of apology and again offered a discount.
Now, assuming the Greens are telling the truth — there seems to be substantial evidence supporting their version of events — McCrary deserves to be condemned wholeheartedly, and the Greens were entitled to an apology (which they got). But that, of course, wouldn’t allow them to cash in on this incident. So, instead the couple waited two years, and then filed a lawsuit demanding $5.5 million, claiming that the store had illegally violated their rights to make contracts because they were black.
The lower court granted summary judgment to the store, noting that other clerks were willing to help the Greens and they could have completed their purchase. But last week, an appeals court reversed that ruling, holding that a jury could find that the Greens were prevented from completing their purchase, and the store was negligent in hiring/not firing McCrary sooner. Perhaps the most damaging part of the court’s opinion was when it noted that the store, as employer, could be liable for failure to investigate McCrary before hiring her for a routine retail sales job:
Dillard’s also apparently did not inquire into unexplained anomalies in McCrary’s employment history when she applied for a job at its store. After being purportedly “downsized,” McCrary moved from a relatively high paying job at AT&T to an unskilled position at Kmart. Kmart employed her for only two months and laid her off in the month of December when the holiday shopping season would presumably increase Kmart’s demand for labor.
When stores can be sued for millions of dollars for not “inquiring” about trivial resume issues involving low level employees, that will do wonders for employment rates.
Amusing side note: the Greens originally filed their complaint on August 9, 2004; a week later they filed an amended complaint. Aside from correcting a few typographical errors, the only change they made from the original to the amended complaint was to correct their demand for punitive damages from “$500,000” to “$5,000,000.” I guess that was about the money.
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Of course, if they had investigated the anomalies in the employment history, the previous employers would probably not have said anything negative about McCrary for fear of being sued.
I could be wrong, but about 20 years ago there was a series of court cases where companies got hit with large judgements because when responding to a request for references, they said that the person had been fired. A followup set of suits produced the result that if you said good things about the person, you were laible for damages from another person because the company inquiring about the applicant could deduce that since you didn’t say anything good, the person must have been fired or been a bad employee.
This led to the EEOC approved response of “Joe Smith worked here from this date to this date and is eligble (or not eligible) for re-hire.”
My point or question is “how in the heck does this court expect companies to get more information on a prospective employee when cases have gone against them for providing additional information?
“the Greens, a black couple,” is this a bait and switch tactic?
Shopping a Dillards is hardly a necessary or vital function. Have we all given up our right to free speach, however repugnant it might be relative to polite social norms? The only thing McCrary violated was the implicit terms of her employment contract, where she is to suck up to the customer rather than make them feel bad with racial epithets. The Greens did what most offended people would have done, which was to choose not to enter into a business arrangement with Dillards. But why do they think that poor service constitutes a 5 million dollar reward, when persons of other races also poorly treated would expect nothing.
It would be interesting to review the Greens credit history since this slur occurred to see if they have made any recent purchases from Dillards.
I agree that the ruling’s emphasis on the employee’s resume is mystifying at best, but I think that the rest of the ruling makes quite a bit of sense. If you accept the plaintiffs’ factual claims (which of course you have to do when you’re trying to decide whether the case should be allowed to proceed), then McCrary didn’t just refuse to help a customer on the basis of race; when another employee then helped the customer, she butted in with an insult, then escalated to calling the customer a “fucking nigger”. If the courts allow the case to be thrown out at that point, they’re essentially saying that _as a matter of law_ no amount of verbal racism directed at a customer can qualify as “preventing” the customer from shopping there; the employee would presumably have to try to physically block the transaction somehow. That would certainly seem to be against the intent of the law, especially since Congress specifically expanded that law in response to the courts’ applying a narrow construction of it. And if it’s true (as the complaint also alleged) that the employee had been repeatedly abusive to customers in similar ways in the past, and that Dillard’s knew about it and failed to take action, then at some point the employer can and should become liable for the actions of the employee. If I were on the jury, I wouldn’t say that it was worth $500000 or $5 million — I’d probably be looking at something in the four-digit range at most — but it doesn’t seem remotely like the sort of claim that should be categorically barred from the courts.
Ohhh…this has trouble written all over it.
The 8th circuit has just given retailers carte-blanche to block applicants with sketchy employment histories. I wonder what type of applicant would have a sketchy employment history?
“The 8th circuit has just given retailers carte-blanche to block applicants with sketchy employment histories.”
No, the 8th circuit has just given carte-blanche to SUE retailers over employees with sketchy employment history. They haven’t given retailers carte blanch to do ANYTHING…except get sued – both by people who are mistreated by employees with sketchy employment history AND by applicants whom they deny employment for having a sketchy employmnt history.
Great system, ain’t it?