Black Americans have long faced discriminatory treatment while shopping in retail establishments, including, most notably, being subjected to increased surveillance, inconsistent pricing, and inferior customer service. Little attention, however, has been paid to other post-purchase aspects of retail transactions. Specifically, do Black Americans receive the same treatment as white customers when it comes to performing sellers’ formal policies or contracts? While it is understood that salespeople are often given discretion to deviate from standard form contracts, sometimes departing from the literal terms to satisfy consumers, there has been a notable absence of systematic exploration into how salespeople exercise this authority and whether racial disparities manifest in the exercise of such discretion. This Article reports on an original audit study that involved sending testers who were matched on all observable characteristics other than gender and race into downtown Chicago stores to return prepurchased items. All of the audited stores had official policies that required a receipt as a prerequisite to a return, but the testers did not present receipts for the items.
The findings revealed stark racial disparities: Black shoppers, both women and men, encountered more frequent denials and were less likely to be offered refunds than their white counterparts, with white women receiving the most favorable treatment. These disparities persisted and became even more pronounced after the testers asked to speak to management. Insights gleaned from novel interviews with store clerks suggest that these discrepancies stem from ingrained biases that associate race with social status and expected behavior.
In response, this Article outlines several recommendations that would reform the legal landscape to more robustly combat retail race discrimination in contractual performance. These include broadening the reach of existing legislation to explicitly outlaw racially discriminatory practices in the execution of seller contracts and incentivizing sellers to implement strategies that have been shown to reduce bias in other decision-making environments.