Racist Comments Not Enough for a Sec. 1981 Claim Against Store

By Gabriella Khorasanee, JD on October 28, 2013 | Last updated on March 21, 2019

Sometimes, we read cases that leave us wondering "what the hell is wrong with people?" In a recent discrimination case in the First Circuit, when we read some of the racist comments uttered, we first wondered, who thinks that way?

And then had to follow-up with... Who actually says those things to people? The answer, in this case: a Kmart employee.


Chenell Hammond, an African-American woman, successfully completed a layaway transaction, while accompanied by her two children. During the transaction, Ms. Hammond had to deal with a litany of racist comments, slurs and innuendos, courtesy of a Kmart salesperson.

Because of the disrespect she encountered, Ms. Hammond filed a claim against Kmart citing violation of 42 U.S.C. § 1981, along with a claim for intentional infliction of emotional distress under state law. The district court dismissed her claims, and she appealed.

To prove a § 1981 claim, a plaintiff must show three things: (1) membership in a racial minority; (2) discrimination on the basis of race; and (3) the discrimination resulted in the actual denial of "the ability either to make, perform, enforce, modify, or terminate a contract, or to enjoy the fruits of a contractual relationship."

Here, Hammond easily satisfied the first two prongs. However, because she actually completed the layaway transaction, she could not show that her ability to enter into a contract was hindered. The court stated: "In short, Hammond's sparse allegations are that the only harm she suffered was from the sales clerk's utterances, without more. She needs more, but there is no more here."

This case goes to show that not only is ignorance bliss, but it needs to be accompanied by something much worse, to rise to the level of discrimination that the courts can step in to remedy. Let's hope Kmart at least trains its employees on how to talk to customers.

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