Much has been written about an unfortunate incident in which two black men – Rashon Nelson and Donte Robinson – were arrested while waiting for their friend/colleague in a Philadelphia Starbucks on April 12, 2018. For a recap, this article summarizes what happened and relatively recent developments, including Messrs. Nelson’s and Robinson’s retention of counsel.[1]If you have not heard about this incident, please contact me, as I am interested in what Mars is actually like.
This happened in Pennsylvania (where I am not admitted to practice). But let’s pretend that the incident occurred in New York. What claims might they be able to assert – i.e., what laws might apply in a potential litigation?
At the federal level, Title 42 of the U.S. Code, § 2000a, titled “Prohibition against discrimination or segregation in places of public accommodation,” provides (inter alia):
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
The New York State Human Rights Law provides (inter alia):
It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof[.] [N.Y. Executive Law § 296(2)(a).]
The New York City Human Rights Law provides (inter alia):
It shall be an unlawful discriminatory practice for any person who is the owner, franchisor, franchisee, lessor, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation:
1. Because of any person’s actual or perceived race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation, uniformed service, or alienage or citizenship status, directly or indirectly:
(a) To refuse, withhold from or deny to such person the full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, services, facilities or privileges of the place or provider of public accommodation[.] [N.Y.C. Admin. Code § 8-107(4)(a)(1)(a).]
Having looked at the statutes that might apply to potential claims[2]I do not address or consider the viability of any claims against any non-private/municipal entities for, e.g., false imprisonment/arrest. if this situation occurred in New York. While I do not purport to speculate as to any particular results (which are inherently unpredictable), it may be instructive to consider how courts have evaluated claims of this type.
For example, in Matter of Wal-Mart Stores E., L.P. v New York State Div. of Human Rights, 71 A.D.3d 1452 (App. Div. 4th Dept. 2010), the court held that petitioner-respondent condoned acts of discrimination by its employee against a customer. It explained:
The record establishes that an employee of petitioner requested to check the backpack of the customer in question, an African-American woman, but he did not make similar requests of Caucasian customers. Further, there is substantial evidence, including the store’s surveillance videos, establishing that the employee stopped greeting customers and asked the customer for a receipt when she left the store but that he did not ask Caucasian customers for receipts. We thus conclude that substantial evidence supports SDHR’s determination that the customer met her burden of demonstrating unlawful discrimination by the employee[.] [71 A.D.3d at 1453.]
The court rejected the petitioner’s contention that it could not be held liable for its employee’s discriminatory acts. The court wrote:
Although petitioner is correct that an employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it …, [a]n employer’s calculated inaction in response to discriminatory conduct may, as readily as affirmative conduct, indicate condonation … . Contrary to the contention of petitioner, there is substantial evidence in the record establishing that it condoned its employee’s actions by failing to discipline the employee[.] [Id.]
As another example, the court in Johnston v. Apple Inc., 2011 WL 4916305 (S.D.N.Y. 2011) found that plaintiffs plausibly alleged that defendants violated the NYC Human Rights Law following their removal from an Apple store. The court explained:
[Plaintiffs] have alleged such a violation. With respect to defendant Apple, the [complaint] alleges that the Apple Store manager discriminated against them when he instructed Omniscient’s Head of Security to call the police and remove plaintiffs from the premises. While the complaint does not identify this manager by name, it is plausible on the face of the complaint to infer that the manager was in fact an employee of defendant Apple. The complaint alleges that plaintiffs were discriminated against first by John Doe the security guard, and when they sought out the Apple manager to explain what had happened, the Apple manager furthered that discrimination by ignoring their complaints and ordering them removed from the store they had chosen to patron. … [Plaintiffs] must show defendants refused, withheld, or denied them any of the “accommodations, advantages, facilities or privileges” of a public accommodation. Here, the [complaint] at least plausibly alleges plaintiffs were denied the “facilities” of Apple’s retail store, as they were removed from the premises on what they allege is account of their race.
It will be very interesting indeed to see whether litigation is commenced against Starbucks, and if so, how it might be resolved. But one thing is clear: this should not have happened. I truly hope that Rashon Nelson and Donte Robinson obtain all remedies available to them under the law.