The Customer Caste: Lawful Discrimination by Public Businesses

58 Pages Posted: 18 Apr 2020 Last revised: 12 Jun 2020

See all articles by Suja A. Thomas

Suja A. Thomas

University of Illinois College of Law

Date Written: February 12, 2020

Abstract

It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms because of their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect black and other people of color from discrimination and segregation in public accommodations — places where people receive goods, food, services, and lodging. Scholarship has not analyzed how well Title II and Section 1981 of the Civil Rights Act of 1866 have functioned in this arena. An examination of this case-law shows that courts find numerous discriminatory and segregatory actions by places of public accommodation legal. An abbreviated look at Section 1982 of the Civil Rights Act of 1866 shows that courts have interpreted that law in the same manner as Section 1981. An assessment of the legislative history and text of Title II and Section 1981, in addition to a comparison to the interpretation of laws with similar purposes, demonstrate that the federal judiciary has incorrectly constrained the law by, among other actions, adopting the heavily-criticized employment discrimination case-law and requiring a common law-like contractual relationship. Jim Crow laws ceased to exist in the 1960s, but these interpretations have created “the customer caste,” whereby people of color are subject to legal, daily discrimination in retail stores, restaurants, gas stations, hotels, banks, and airplanes.

Keywords: Discrimination, Public Accommodations, Business, Title II, Civil Rights Act of 1964, Section 1981, Civil Rights Act of 1866

Suggested Citation

Thomas, Suja A., The Customer Caste: Lawful Discrimination by Public Businesses (February 12, 2020). California Law Review, Vol. 109, Forthcoming, University of Illinois College of Law Legal Studies Research Paper No. 20-14, Available at SSRN: https://ssrn.com/abstract=3536646 or http://dx.doi.org/10.2139/ssrn.3536646

Suja A. Thomas (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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