Employment Law Update – Racial Profiling in the Marketplace (Shoppers v. Tan)

By Heather Hettiarachchi.

Research indicates that racial profiling is quite common in the retail industry and that security personnel routinely engage in racial profiling practices. Research further indicates that black people are often the primary target of this profiling, giving rise to the phrase “shopping while black”, which describes this type of marketplace discrimination.

Often, racial profiling is quite difficult to prove because a complainant has to show that the person engaging in the discriminatory behaviour was being influenced, consciously or unconsciously by a particular stereotype when they engaged in the discriminatory behaviour. Often, there is no direct evidence and the inference must be drawn from the circumstances.

In McCarthy v. Kenny Tan Pharmacy Inc., (2015 HRTO 1303), the applicant, who is black, filed a human rights claim in Ontario alleging that she had been the victim of racial profiling by Shoppers Drug Mart. The behaviour that led to the claim was that of an employee approaching the applicant and asking her to open her backpack in a rude and aggressive manner without any logical explanation for the request. When nothing was found in the bag, the employee walked away without even offering any apology to the applicant.

The employee accused of racially profiling the applicant in this case is South Asian and, at the hearing, Shoppers tried to rely on this fact to argue that the employee could not have racially profiled the applicant because she herself was a racialized person. The Human Rights Tribunal of Ontario refused to accept this argument and held that the mere fact that the employee belonged to a racial minority did not make it “impossible or less likely” that she would discriminate against the applicant.

The Tribunal noted that the employee could not provide a valid reason for her “strong belief” that the applicant had put something into her bag without paying for it and that while she had previously dealt with shoplifting incidents, she had never confronted any non-black person and asked to search their bags. The Tribunal was also less than impressed by the employee’s argument that she had not noticed that the applicant was a black person. Based on all of the evidence the Tribunal concluded that the employee had singled out the applicant on the basis of racial profiling and awarded the applicant $8,000 in respect of injury to dignity and hurt feelings.

Implications

In order to prevent/minimize findings of discrimination based on racial profiling, employers would be well advised to:

• educate staff on what racial profiling means;
• implement and enforce clearly defined policies that prohibit racial profiling;
• provide staff with training on avoiding the pitfalls of racial profiling; and
• take prompt action if they observe employees showing a tendency to engage in racial profiling in their day to day interactions with customers.

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