Gregory v. Dillard's, Inc.

494 F.3d 694, 2007 U.S. App. LEXIS 17304, 2007 WL 2067853

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 20, 2007
• Docket: 05-3910
• Status: Published

Opinions

MURPHY, Circuit Judge.

Crystal Gregory and Alberta and Carla Turner initiated this action against Dillard’s, Inc. under 42 U.S.C. § 1981 and the Missouri Human Rights Act (MHRA). They allege that racially discriminatory policies and practices at the Dillard’s department store in Columbia, Missouri denied them the same ability to purchase merchandise and access services as enjoyed by others, in violation of their rights under federal and state law. Fourteen additional African American plaintiffs later filed similar claims under § 1981. The amended complaint seeks declaratory, in-junctive, and monetary relief. Dillard’s moved for summary judgment and dismissal for failure to state a claim, and the district court ruled in its favor except as to the claim of Michael Butler which later settled. The dismissed plaintiffs appeal,¹ arguing that the district court erred in its analysis and application of the law. We affirm in part and reverse in part.

I.

A.

The original complaint was filed in April 2003 by Gregory and the Turners; it was amended one year later to add the other plaintiffs. The thirteen African American appellants are predominantly residents of Columbia or nearby communities, ranging in age from twenty to fifty seven at the time of the incidents about which they testified during discovery. The record in this case appears to be unique among the reported circuit cases dealing with § 1981 claims in the retail context in that it includes evidence not only from shoppers, but also from former Dillard’s employees.

The jurisdictional statement in the amended complaint alleges that Dillard’s denied plaintiffs “the privileges of making shopping purchases” and “deprived [them] of services enjoyed by non-minorities” as part of its “purposeful pattern and practice of racial discrimination with respect to African American customers.” The complaint alleges further that the plaintiffs “sought to make and enforce a contract for services ordinarily provided by Dillard’s” but they were denied the right to enter into a contract and were “deprived of services [available to] similarly situated persons outside the protected class,” that Dillard’s discriminated against them “by directly and/or indirectly refusing, withholding from or denying” them services, and that the store “frequently engages in ... discriminatory surveillance pursuant to a policy and practice of racial discrimination.” Each of the plaintiffs dismissed under Rule 12(b)(6) was alleged to have “experienced, within the time period of 1998 to [the] present, instances at Dillard’s Columbia, Missouri store in which they were followed and/or otherwise subject to surveillance based upon their race.” Each individual claim incorporated all the other allegations in the complaint by reference.

In its answer Dillard’s denied the allegations in the complaint and alleged a number of affirmative defenses: failure to state a claim for which relief could be granted, failure to exhaust administrative remedies, any unlawful conduct was outside the scope of employment, failure to mitigate damages, any emotional distress or mental injuries had other causes, and constitutional grounds prevent any punitive damages. Because of Dillard’s successful motions for summary judgment and failure to state a claim, its other defenses were not developed before the district court.

During discovery plaintiffs sought to establish prima facie cases under federal and state law by producing evidence to support the allegations in their complaint. In recounting the evidence in the record on summary judgment, we keep in mind that the facts are to be considered in a light most favorable to the plaintiffs. Belec v. Hayssen Mfg. Co., 105 F.3d 406, 408 (8th Cir.1997). Part of that record consists of testimony from five former employees of the Columbia store. They testified that Dillard’s had discriminatory polices in respect to African American shoppers and that there was discriminatory enforcement of store policies on returns, exchanges, and shoplifting.

Tammy Benskin, a white employee in the men’s fragrance department from 1997 to 1998, testified that Dillard’s had an unwritten policy of closely surveilling and following black shoppers. According to Benskin the store’s general security code — Code 44 — was customarily announced over the employee intercom whenever an African American came into the store. The code was almost never used when a white shopper entered. Store manager Don Edson and one of his assistants regularly followed African American shoppers closely, including frequent customers who had made substantial purchases at Dillard’s. Benskin said she never saw Edson watch or follow white customers. One African American customer who had spent a great deal of money in the store became so upset by being followed that he turned on Edson and yelled, “I do not have to take this. I am here to buy clothes.” Benskin stated that she was told by Dillard’s employees that African American customers “steal all the time.” One of the reasons she quit was because she “couldn’t deal with the prejudice anymore.”

Kenneth Gregory is a police sergeant for the city of Columbia who worked part time at Dillard’s as a security guard during the years 1995, 1997, and 1998. He also is the husband of Crystal Gregory. While he was working at Dillard’s, the store announced a zero tolerance policy for shoplifters. That policy was to prosecute shoplifters “to the full extent of the law” with no exceptions. Security personnel were told to watch for anyone taking merchandise and to wait until the individual attempted to leave the store before making an arrest. Gregory contrasted the store’s treatment of white shoplifters who were sometimes allowed to leave if they returned the stolen merchandise or paid for it with that of others who were arrested and prosecuted even though they offered to reimburse the store. On one occasion when Gregory was preparing to arrest a white shoplifter, store manager Edson intervened. Instead of following the zero tolerance policy, Edson asked the man if he had intended to pay for the merchandise. Gregory testified that on virtually every one of his shifts he saw African American shoppers being followed by Dillard’s employees. He said he observed many instances where there was no other apparent reason for the surveillance than the race of the customers.

Former employees testified about discriminatory enforcement of the policy on returns. From March 2000, the Columbia store’s policy on returns required customers to produce either a receipt of purchase or merchandise with an attached Proof of Purchase (POP) label showing it had been purchased at the Columbia store. Before that date the policy was that customers had to produce a receipt in order to return merchandise, but evidence was produced that white customers were frequently allowed to return items without a receipt.

Maren Snell worked at Dillard’s in 2001 in the women’s fragrance department. A black woman herself, she is also one of the appellants. In discovery she testified that she frequently witnessed African Americans unsuccessfully attempt to return merchandise carrying POP labels. White customers were never asked to furnish receipts if they were returning merchandise carrying a POP label, but she often saw a supervisor named Tracy and other Dillard’s employees refuse to accept such returns from blacks without original receipts. Tracy also told Snell not to give fragrance samples to a group of black girls in the store because “they’re not going to buy anything anyway.” Snell testified she herself was once followed when she went into the store off duty to shop. She frequently saw other African American shoppers being subjected to discriminatory treatment. On several occasions she was instructed by supervisors to go “watch those black kids” or to follow black shoppers.

Rick Beasley, an official with the Missouri Department of Economic Development, worked at Dillard’s selling men’s suits from 1996 until 1999. He observed systematic racial discrimination at Dillard’s that he said was carried out by many employees. He also described seeing black customers treated differently from whites when trying to return a purchased item without a receipt. Theresa Cain worked at the Columbia store from 1999 to 2000. She reported that African American customers were “stereotyped” by Dillard’s employees and that the security personnel were so focused on watching black customers that they frequently missed shoplifting offenses by whites.

The plaintiffs dismissed on summary judgment — Crystal Gregory, Alberta and Carla Turner, and Jefferson McKinney— were also deposed. Crystal Gregory, the wife of a Columbia police officer, testified that she could not remember a time at Dillard’s when she was not followed by store employees. She also overheard sales people talking about how African Americans are likely to steal. Gregory was particularly upset by her experience on February 3, 2001, when she and her sister went to Dillard’s to purchase a “dressy” outfit. While they were attempting to look at the merchandise in the Ralph Lauren section, an employee named Tracy came up and began to follow after them. Gregory found a pair of pants she was interested in and entered a dressing room to try them on. When she came out to show her sister how the pants looked, she found Tracy standing directly outside of the dressing room “smirking” and flanked by two security guards. This conduct offended Gregory so much that she told her sister she was not going to buy the pants she had planned to purchase. She went up to the counter and asked to speak to a manager about the whole incident. The manager on duty, a woman named Janet, did not appear to care about her complaint so Gregory left the store. She returned the next morning to complain to store manager Don Edson about the incident. Edson said he was sorry and promised to talk with Tracy and the security guards.

Alberta Turner and her daughter Carla testified that they were almost always followed when they attempted to shop at Dillard’s. Alberta complained that she was never offered assistance by the sales staff. The Turners’ worst experience occurred on Memorial Day in 2002 when Alberta was shopping with Carla and her daughters. After they purchased some children’s shoes, Carla and one of her daughters went to look for school clothes. They found several styles of pants they were interested in buying and went in a dressing room to try them on. When they came out, they faced both a sales associate and a security guard waiting outside the room. The sales associate stared at the bags of purchased merchandise Carla was carrying, and a security guard followed closely behind her and her child as Carla went to look for her mother. She asked the guard why he was following them. He gave her no answer and just continued to trail them. Alberta had in the meantime found merchandise she intended to purchase for her grandchildren, but she became upset when she saw the security guard trailing her daughter and grandchild. The family felt so humiliated they had to leave the store. On their way out, Alberta went up to a sales associate and told her that the store had just lost hundreds of dollars in sales. With a “weird grin” on her face, the associate responded, “So, so what?”

Jefferson McKinney is an occasional Dillard’s customer. During the summer of 2000 he went to Dillard’s with two of his cousins to shop for cologne. McKinney testified that he did not receive sales assistance as he waited at the cologne counter even though he made repeated eye contact with a sales associate. The associate nevertheless helped several white customers. While McKinney and his cousins waited, they began to sample the cologne testers set out on the counter. After approximately fifteen minutes, the associate came over and moved the testers without saying anything to the men. One of McKinney’s cousins asked her why they weren’t being waited on, and she responded with a “kind of rude ... tone.” The cousin asked her to call a manager. When she did not, they left the store.

Since the remaining appellants were dismissed on the pleadings, our analysis as to their claims must focus on the allegations of their complaint, see Fed.R.Civ.P. 12(b)(6), but the discovery evidence about their experiences is nevertheless part of the record on the motions for summary judgment. See Fed.R.Evid. 402, 404(b). Also in the record is the experience of Michael Butler, the nondismissed plaintiff who settled with Dillard’s. Butler tried to return a pair of shoes he had purchased at Dillard’s. Although the shoes had a POP label attached to them, two sales associates demanded a receipt from him and made accusatory remarks such as, “[You] could have stolen those shoes. People do that all the time and bring them in and try to get ... money back.” Butler offered to go home to get his receipt, but the salespeople demanded that he leave his shoes at the store and delayed him there for approximately one hour. Eventually he was permitted to leave the store with the shoes he had brought with him and subsequently returned with his receipt. He was then allowed to exchange the shoes for a new pair.

Almost all of the plaintiffs described being harassed or trailed by security guards or other employees while shopping at the Columbia Dillard’s. Arnel Monroe and his daughter went to Dillard’s to redeem a gift card she had received. Monroe described Dillard’s as one of the only stores in the area that offered professional apparel. He testified that while they were shopping, he saw a Kenneth Cole shirt he was interested in and carried it with him as the two walked toward the jeans section. Although Dillard’s ordinarily permits its customers to carry merchandise with them from one department to another as they select various pieces, a security guard began to follow Monroe in a manner which alarmed his daughter who asked, “Daddy, why is that guy staring at us?” Monroe did not complete the purchase of a shirt he had selected to buy because the guard’s conduct angered and humiliated him in front of his child. Michael Warrick testified that while shopping for jeans with his brother, a sales associate trailed them through more than one department. After Warrick selected and tried on a pair of jeans and was leaving the fitting room, the same sales associate “bumped” him in a deliberate manner apparently intended to dislodge concealed merchandise. This extraordinary behavior angered him and kept him from returning to Dillard’s for four years even though he had been able to purchase the jeans from another employee.

When Treva Gage was shopping with her children and several friends, security guards followed them all over the store even when they went to the bathroom. Gage was upset and indignant at this behavior. She expressed amazement about this treatment to her friend who responded that Dillard’s personnel “always do that.... I hate this place.” Although Gage had selected several shirts to purchase, she felt so put down by the security guards that she laid the shirts on a sales counter next to a male employee and complained that she had been followed every time she came into Dillard’s. He did not offer to help her, and she left the store.

Several of the plaintiffs testified that they had been denied service. When Michael Richmond was shopping for jewelry with his mother, he told a sales associated he wanted to look at a particular item in a closed display case. Instead of showing it to him, the sales associate repeatedly emphasized the price of the item and suggested he look for merchandise at the markdown counter. Richmond felt insulted and told her in a rude way that he was not interested in the markdowns. He left the jewelry department and complained to an assistant manager who apologized for what had occurred, and he left the store. Debra Hamilton testified to a specific incident when she was shopping at Dillard’s and was trailed by a security guard. After selecting a dress to purchase, she went to the sales counter to pay for it. She was ignored by the cashier who instead waited on a series of white customers who had arrived at the sales counter after Hamilton. Hamilton finally said to the sales associate, “Well, I thought I was here first.” The only response she received was, “Well, I’m sorry.” Hamilton left without the dress.

B.

In October 2003 Dillard’s moved to dismiss the claims of Crystal Gregory and Alberta and Carla Turner for failure to state a claim or alternatively for summary judgment. After its motion was filed, Gregory and the Turners sought leave to amend their complaint to add the claims of other plaintiffs and to assert a class action. Leave to amend was granted, and Dillard’s filed a second motion to dismiss directed at the new plaintiffs and opposed the motion for class certification. The latter motion was denied in April 2004, and in January 2005 the district court dismissed most of the § 1981 claims for failure to state a claim. Seven months later the district court granted summary judgment to Dillard’s on the § 1981 claims of Gregory, Alberta and Carla Turner, and Jefferson McKinney as well as the MHRA claims of Gregory and the Turners. The district court denied summary judgment in respect to Michael Butler’s § 1981 claim; the parties later settled his claim.

In analyzing the plaintiffs’ § 1981 claims, the district court stated it was applying the test for a prima facie case of discrimination approved in Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir.2004), and Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 854 (8th Cir.2001). To establish a prima facie case a plaintiff must show (1) membership in a protected class, (2) discriminatory intent on the part of the defendant, (3) engagement in a protected activity, and (4) interference with that activity by the defendant. Bediako, 354 F.3d at 839.² It is not contested that appellants are members of a protected class.

In its order dismissing most of the plaintiffs’ claims under Fed.R.Civ.P. 12(b)(6), the district court focused on the fourth factor in the prima facie test—actionable interference. It required that a plaintiff plead “per se interference” with a protected activity in order to state a § 1981 claim. The district court did not define the term but observed that plaintiffs had not alleged they had been “questioned, searched, detained, or subjected to physical activity other than being followed or subjected to surveillance.” In support of its per se interference test the court quoted a paragraph from Garrett v. Tandy Corp., 295 F.3d 94, 101 (1st Cir.2002), which rejected “unadorned” surveillance as a basis for § 1981 liability but only “[s]o long as watchfulness neither crosses the line into harassment nor impairs a shopper’s ability to make and complete purchases.” Id. Concluding that racially based surveillance was not per se interference with plaintiffs’ ability to contract, the district court dismissed all claims alleged by Monroe, Richmond, Hamilton, Gage, Warrick, Wisham, Felicia Turner, Snell, Lee, Butler, Deidre Golphin, and Cecilia Young, except for the “check writing and returns/exchanges” claims of Butler, Golphin, and Young.³

In its summary judgment order the district court applied a similar analysis to the claims of Gregory and the Turners. It concluded that all except one of their claims were based on discriminatory surveillance.⁴ The court stated that such a theory was not actionable, citing Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1108 (10th Cir.2001) (“[D]iscriminato-ry surveillance ... on its own [is] not actionable under § 1981.... ”). The court further concluded that Jeff McKinney and Cecilia Young also failed to establish prima facie cases: McKinney had not attempted to purchase cologne and Young’s check had been rejected by an outside company. The several MHRA claims were also dismissed because of the court’s conclusion that Dillard’s is not a place of public accommodation under state law.

Appellants contend that the district court erred in dismissing their claims under § 1981 and the MHRA. They argue that Gregory, the Turners, and McKinney produced sufficient evidence to withstand summary judgment and that the allegations by the other appellants of violations of § 1981 were sufficient to survive the motion to dismiss. Appellants claim they were subjected to a “systemic race-based surveillance and denial of service scheme” and argue that the district court erred in its ruling that Dillard’s is not a place of public accommodation under Missouri law.

Dillard’s responds that the district court’s holding with respect to the scope of the appellants’ rights under § 1981 was correct. Appellants have only alleged or shown a possible loss of prospective contract interests says Dillard’s, not the loss of an actual contract interest. The summary judgment plaintiffs were never denied entry into Dillard’s, prevented from moving within the store or questioned, detained, or asked to leave. Dillard’s also argues that the plaintiffs failed to show discriminatory intent and that the district court was correct in concluding that Dillard’s is not a place of public accommodation under the MHRA.

II.

Section 1981(a) provides that “all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens.” This language was originally enacted in 1866 and then reenacted as part of the Enforcement Act of 1870, ch. 114, 16 Stat. 140, which the Supreme Court has called a “legislative eousin[ ]” to the Fourteenth Amendment since it was passed to help enforce its protections against racial discrimination. Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982).

Congress responded to more restrictive interpretations of § 1981 by enacting the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991 Act). Included in the 1991 Act was a broad definition of the equal right to make and to enforce contracts. Under § 1981(b), that right includes “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id. (emphasis added). The 1991 Act was explicitly intended to “provide adequate protection to victims of discrimination.” § 3(4), 105 Stat. at 1071; see also H.R.Rep. No. 102-40(11), at 2 (1991), U.S.Code Cong. & Admin.News 1991, pp. 694, 695 (“By restoring the broad scope of Section 1981, Congress will ensure that all Americans may not be harassed, fired, or otherwise discriminated against in contracts because of their race.” (emphasis added)). The Supreme Court has since recognized that in light of the 1991 Act’s addition of § 1981(b), “[the] prohibition against racial discrimination in the making and enforcement of contracts applies to all phases and incidents of the contractual relationship.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 302, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (emphasis added).

The Supreme Court has never addressed the applicability of § 1981 in the specific context of retail transactions, but even before the 1991 amendments it made it clear that the statute reaches all types of private contracting and the process of contract formation. See Runyon v. McCrary, 427 U.S. 160, 168, 172, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (“classic violation” of § 1981 when parents seeking “to enter into contractual relationships” for their children’s education were rejected because of race); see also Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (private employment). The Court reached a similar conclusion in Tillman v. Wheaton-Haven Recreation Ass’n, 410 U.S. 431, 439-40, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973), when it held that an African American woman who had been denied guest admittance to a private swimming pool might also have a claim under § 1981. See also Patterson v. McLean Credit Union, 491 U.S. 164, 176-77, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (§ 1981 reached discrimination in contract formation during hiring process).

Although no § 1981 case arising in retail stores has yet reached the Supreme Court, many have come before the circuit courts which have developed standards for analyzing them. Section 1981 “does not provide a general cause of action for race discrimination,” Youngblood, 266 F.3d at 855, but specifically protects the equal right “to make and enforce contracts” regardless of race. 42 U.S.C. § 1981(a). Congress passed the 1991 Act to ensure that § 1981 reach all “phases and incidents of the contractual relationship,” Rivers, 511 U.S. at 302, 114 S.Ct. 1510, and the statute extends “beyond the four corners” of a particular contract. Garrett, 295 F.3d at 100, quoted in Green, 483 F.3d at 538. Some courts have broadly defined protected activity as that which is “enumerated” in the statute itself. Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1235 (11th Cir.2000); Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir.1997); Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.1996); Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993).

Under Eighth Circuit precedent, appellants had the burden to plead and then show that Dillard’s had discriminatory intent, that they were engaging in activity protected by § 1981, and that Dillard’s interfered with that activity. Green v. Dillard’s, Inc., 483 F.3d 533, 538 (8th Cir.2007); Bediako, 354 F.3d at 839. Their membership in a protected class is undisputed. Section 1981 protects the right of black shoppers “to the same benefits and privileges of contractual relationships as white shoppers.” Green, 483 F.3d at 539.

Under § 1981 circumstantial as well as direct evidence can establish a prima facie showing of race based discriminatory intent. Kim v. Nash Finch Co., 123 F.3d 1046, 1059 (8th Cir.1997). Direct evidence of discriminatory intent will rarely be available, for “there will seldom be ‘eyewitness’ testimony” regarding a defendant’s mental processes. Id. (internal quotations omitted). Evidence of systemic discriminatory practices can be highly relevant in establishing animus toward nonwhites. White v. Honeywell, Inc., 141 F.3d 1270, 1276 (8th Cir.1998); Hawkins v. Hennepin Technical Ctr., 900 F.2d 153, 155-56 (8th Cir.1990). Discriminatory intent may also be evidenced by racial in-suits, Green, 483 F.3d at 540, or evidence that a retailer has discriminatory policies and practices. Cf. id. Another way of showing discriminatory intent is by evidence that similarly situated white shoppers were treated differently than black shoppers. See, e.g., Barfield v. Commerce Bank, N.A., 484 F.3d 1276, 1279 (10th Cir.2007); Lizardo v. Denny’s, Inc., 270 F.3d 94,101 (2d Cir.2001).

Plaintiffs must show that they had a protected contractual relationship or interest. Daniels v. Dillard’s, Inc., 373 F.3d 885, 887 (8th Cir.2004), citing Bediako, 354 F.3d at 839; Youngblood, 266 F.3d at 854. A contract interest is created by an “intent to purchase.” Green, 483 F.3d at 539. Mere presence on a store’s premises with no indication of a desire to contract is insufficient to show a contractual interest under § 1981. See Hampton, 247 F.3d at 1104; see also Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 752-53 (5th Cir.2001); Office Max, 89 F.3d at 414. The retailer’s display of goods serves as an offer which a customer considers by taking the goods off the rack or shelves, Garrett, 295 F.3d at 100, and then accepts by completing a purchase transaction with the cashier. See Green, 483 F.3d at 539. The protections of § 1981 are “triggered once a customer has made ‘some tangible attempt to contract’ by selecting particular items” offered by the retailer. Id. at 538-39, quoting Morris, 277 F.3d at 752. For a prima facie case plaintiffs must show that they “actively sought to enter into a contract with the retailer.” Green, 483 F.3d at 538; see also Williams v. Staples, Inc., 372 F.3d 662, 667-68 (4th Cir.2004); Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir.2001).

It is instructive to examine the factual circumstances in which courts have deeid-ed whether African American shoppers had a sufficient contract interest to make out a prima facie § 1981 claim. The plaintiffs in Green selected a particular wristwatch locked in a display case and told a sales associate they wished to purchase it. See 483 F.3d at 538-39. The plaintiff in Christian “made herself available to enter into a contractual relationship” by selecting items and placing them in her cart as she shopped. See 252 F.3d at 874. The plaintiff in Williams whose out of state check was not accepted had made out a sufficient contract interest by presenting the check to pay for his purchase. 372 F.3d at 668. Although the plaintiff in Garrett had an interest in forming a contract while he was in the store shopping, 295 F.3d at 101, his contractual relationship with the retailer ended when his purchase was complete. Id. at 102; see also Youngblood, 266 F.3d at 854-55. The contracting process continues, however, when a shopper wants to purchase another item, see Green, 483 F.3d at 538-39, or retains some residual entitlement to another benefit resulting from her purchase. See Hampton, 247 F.3d at 1104-05 (purchase created additional contract interest in right to free perfume sample).

The final element plaintiffs must establish under § 1981 is actionable interference by the defendant with their contractual interest. Green, 483 F.3d at 538; Daniels, 373 F.3d at 887; Bediako, 354 F.3d at 839. They must produce evidence of conduct, policies, or practices which “a trier of fact could find as a whole thwarted their attempt to make and close a contract” with the defendant. Id. at 539. Our court has recognized that “den[ying] a benefit of the contractual relationship” is actionable interference under § 1981. Youngblood, 266 F.3d at 854.⁵

Actual interference has been found in varying circumstances, for § 1981 claims “call for careful line-drawing, ease by case.” Garrett, 295 F.3d at 101. Hampton, for example, held that a security guard’s “interruption” of the plaintiffs attempt to redeem a coupon was “an actual loss” of the plaintiffs contractual privilege even though the transaction had not been made impossible. 247 F.3d at 1106. Refusal to accept a check was considered actionable interference in Williams, 372 F.3d at 668, as were discriminatory accusations of shoplifting and being ejected from the premises in Christian. 252 F.3d at 874. Refusal to wait on black customers, interference with another salesperson’s assistance, and racially offensive comments created genuine issues of fact as to actionable interference in Green. See 483 F.3d at 539. The deliberate provision of inferi- or service to black patrons has also been held to establish actionable interference. See Solomon v. Waffle House, Inc., 365 F.Supp.2d 1312, 1324-25 (N.D.Ga.2004); McCaleb v. Pizza Hut of Am., Inc., 28 F.Supp.2d 1043, 1048 (N.D.Ill.1998).

Although § 1981 does not guarantee “an enjoyable shopping experience,” it does prohibit racially discriminatory actions which taken as a whole thwart a shopper from closing a contract for merchandise. Green, 483 F.3d at 539. Thus, when a plaintiff adduces evidence from which a trier of fact could reasonably find that a retailer prevented the shopper from purchasing merchandise or receiving services offered to other customers, a prima facie claim of actionable interference has been made. See Barfield, 484 F.3d at 1278 (citing cases).

c.

The claims of Crystal Gregory, Alberta and Carla Turner, and Jefferson McKinney were all dismissed on summary judgment. We review the district court’s decision to grant summary judgment de novo, Ihnen v. United States, 272 F.3d 577, 579 (8th Cir.2001), viewing the evidence in the record in a light most favorable to the appellants as the nonmoving parties, Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir.2000). This review must be especially careful in discrimination cases. See Heaser v. Toro Co., 247 F.3d 826, 830 (8th Cir.2001).

On their appeal these plaintiffs contend that the district court erred in granting summary judgment to Dillard’s because they presented evidence that they were each subjected to a “race-based surveillance and denial of service scheme” which deprived them of their equal right to make and enforce contracts. Dillard’s argues that appellants failed to produce sufficient evidence that the conduct about which they complain was motivated by race or that it interfered with any contracting right of theirs. Dillard’s further asserts that appellants voluntarily left the store without pursuing purchases and that the testimony of its former employees should be discounted since they did not testify about the particular experiences of the appellants.

Although the ultimate issue is whether Dillard’s intentionally discriminated against the individual appellants, it would be wrong to “conflate the prima facie case with the ultimate issue of discrimination.” Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir.1994). Direct evidence is not necessary to establish a prima facie case of discriminatory intent, Kim, 123 F.3d at 1059, and summary judgment is improper if plaintiffs have produced evidence “establish[ing] facts adequate to permit an inference of discrimination.” Williams, 14 F.3d at 1308. Here, appellants have produced evidence of systemic practices from which discriminatory intent can be inferred.

There is substantial circumstantial evidence that the experiences of these appellants were part of a wider set of discriminatory practices at Dillard’s which targeted African Americans. The deposition evidence offered by appellants includes not only their own testimony but also that of former Dillard’s employees, Michael Butler, and the group of plaintiffs dismissed under Rule 12(b)(6). In their depositions former employees testified that although Dillard’s adopted formally nondiscriminatory policies, it had practices which treated African American shoppers differently than whites. Code 44 was announced over the intercom when they entered the store, they were routinely followed as they attempted to shop, and they were denied services commonly afforded to white customers such as free fragrance samples or the ability to return POP merchandise without a receipt. Cf. Lizardo, 270 F.3d at 101, 104 (minimal evidence that white plaintiffs treated more favorably). This evidence shows not just incivility on the part of Dillard’s employees, but harassing conduct, close and continuous trailing of black customers even up to the bathroom, discriminatory practices in returns and exchanges, failure to wait on black customers, and disparate enforcement of the policy on suspected shoplifters.

When all of this evidence is taken in a light most favorable to these appellants, as it must be on review of summary judgment, Clark, 205 F.3d at 1082, it is sufficient to create an inference of discriminatory intent on the part of Dillard’s. See Hampton, 247 F.3d at 1107 (general evidence of discriminatory surveillance and higher detention rates for African American shoppers was sufficient indirect proof of discriminatory intent); cf. Daniels, 373 F.3d at 887-88 (8th Cir.2004) (no showing of discriminatory intent where check rejected due to computer error and discount complaint was unsupported).

Although Dillard’s argues that appellants have shown at most a “possible ... future contract opportunity,” citing Office Max, 89 F.3d at 414-15, the evidence presented by Gregory and the Turners is about specific items they intended to purchase but for the actions of Dillard’s employees. In contrast to the Youngblood plaintiff, who left the store after completing his transaction, these appellants produced evidence that they departed only because they had been thwarted in attempting to make a purchase and close a contract. Plaintiffs are required only to show that the defendant thwarted their ability to contract, not that the defendant forcibly expelled them. See Green, 483 F.3d at 539; Hampton, 247 F.3d at 1106; McCaleb, 28 F.Supp.2d at 1047. The fact that a frustrated shopper has voluntarily left a retailer’s premises is not dispositive in itself, for the issue is what caused the shopper to leave. See Green, 483 F.3d at 539. If the individual can show the retailer denied services or thwarted the attempt to contract, a prima facie claim can be made regardless of whether the retailer ejected the shopper. See also Solomon, 365 F.Supp.2d at 1324.

The record taken in a light most favorable to Gregory and the Turners shows that they had selected or otherwise expressed interest in specific merchandise they intended, to buy. Gregory and the Turners testified about the merchandise they had selected to purchase and had in hand. They thus made a ‘“tangible attempt to contract’ ” with Dillard’s, Green, 483 F.3d at 538, quoting Morris, 277 F.3d at 752, and have made a sufficient showing of a protected interest to withstand summary judgment on that issue.

The final element in the prima facie case is actionable interference by Dillard’s. The district court’s test for this element was whether there was a “per se interference” with a contract interest, but such a test has not been used in our circuit or elsewhere. Cf. Green, 483 F.3d at 539; Garrett, 295 F.3d at 101;⁶ Youngblood, 266 F.3d at 854; Christian, 252 F.3d at 872; Hampton, 247 F.3d at 1106. The proper test is whether Dillard’s thwarted the plaintiffs’ attempts to contract—to purchase goods or obtain services offered to other customers. Green, 483 F.3d at 539. The district court’s interpretation of the statute was simply too narrow. As the Fourth Circuit has pointed out, in enacting § 1981 “[t]he Reconstruction Congress wrote broadly,” and “we [must] give[ ] effect to that breadth.” Denny, 456 F.3d at 437 (Wilkinson, J.). We must also give effect to the expanded scope which Congress mandated when it passed § 1981(b) and swept all “phases and incidents” of contracting within the reach of the statute. See Rivers, 511 U.S. at 302, 114 S.Ct. 1510.

Actionable interference may occur in different ways as evidenced by the cases and provided by the statute itself. Denying any “benefit of the contractual relationship” is actionable interference. Youngblood, 266 F.3d at 854. Harassment and racial slurs created a genuine issue of fact on interference in Green, 483 F.3d at 539; see also H.R.Rep. No. 102-40(11), at 2, U.S.Code Cong. & Admin.News 1991, pp. 694, 695 (among the goals of 1991 amendments was prevention of race based harassment of persons attempting to contract), a refusal to take a check satisfied the interference element in Williams, 372 F.3d at 668, and interruption of the plaintiffs attempt to redeem a Dillard’s coupon was actionable interference in Hampton, 247 F.3d at 1106. Discriminatory treatment that gives “a clear message” that black customers are not welcome is actionable even though customers are not “expressly told” to leave the premises. McCaleb, 28 F.Supp.2d at 1047.

Crystal Gregory and her sister were followed by employee Tracy from the time they reached the Ralph Lauren section at Dillard’s up to the fitting room where Crystal wanted to try on the merchandise she was interested in. When she came out with the pants she had selected, Tracy was waiting with two security guards and a smirking expression on her face. Gregory was so offended that she decided not to buy the pants she had intended to purchase. When she went to the manager on duty to complain, she received no offer of assistance and left the store. A trier of fact could find from this evidence that the reason Gregory departed was because her attempt to purchase the pants had been thwarted and interfered with by Dillard’s employees, including a manager.

After Carla Turner and her daughter left their fitting rooms, they found , a sales associate with a security guard standing right outside, apparently waiting for them. The security guard then closely followed them as they went to find Carla’s mother. Carla asked the guard why he was following them but he gave no answer. When Alberta saw the guard trailing Carla and her grandchild, she became upset. The family felt so humiliated they had to leave the store, but first Alberta complained about their treatment to a sales associate. The only response of the Dillard’s employee was to ask, “So, so what?” with a “weird grin” on her face and without attempting to help the Turners complete their transactions. A factfinder could reasonably determine that these actions were hostile enough to thwart Gregory and the Turners from completing a contract of sale.

Taking the record in the light most favorable to Gregory and the Turners, we conclude that they have raised genuine issues of fact about whether Dillard’s interfered with or thwarted their attempts to contract. Gregory and the Turners have produced evidence to make a prima facie showing that discriminatory conduct prevented them from completing their retail transactions. They described not merely being watched, but being treated in a demeaning and humiliating fashion by Dillard’s sales associates and uniformed security guards. From the corroborative evidence in deposition testimony by former employees and the other plaintiffs, it could reasonably be inferred that the experiences of Gregory and the Turners were not isolated incidents, but part of a larger pattern of race based harassment and denial of services at the Columbia Dillard’s. Michael Richmond and Debra Hamilton testified for example that they were denied service, Michael Warrick described being deliberately “bumped” by Dillard’s personnel, and Michael Butler was thwarted in trying to exchange shoes and detained while white customers were allowed to return items without a receipt.

Appellant McKinney was also dismissed on summary judgment. McKinney and his cousins had sampled cologne testers while waiting for sales assistance. Although McKinney believed he had previously made eye contact with the sales associate who subsequently moved the cologne testers, there is no evidence that McKinney ever communicated a desire to make a purchase as opposed to testing samples, cf. Green, 483 F.3d at 538-39, spoke to the sales associate about any merchandise when she came to the counter where he and his cousins were standing, or had more than a “general interest” in the cologne. Office Max, 89 F.3d at 414. We conclude that McKinney did not make out a prima facie showing of interference with a protected contract interest and that the district court did not err in granting summary judgment to Dillard’s on his claim. This part of the district court judgment should be affirmed.

Evidence of discriminatory policies or practices may give rise to an inference of intentional discrimination by a defendant. See Williams, 14 F.3d at 1308. Evidence of racially discriminatory intent on the part of employees in their interaction with customers may also lead to liability for retailers. See Green, 483 F.3d at 541 (possible negligence or recklessness in hiring, retaining, and training). Here, plaintiffs have produced evidence that Dillard’s has a systemic practice of surveilling and following African American shoppers, that it prosecutes African American shoplifters more than white shoplifters, that it specifically instructs employees to follow African American shoppers and employs Code 44 to warn of their entry into the store, that it discriminates in giving fragrance samples and enforcing its policy on return of merchandise, and that it selectively withholds service from black customers.

Appellants have produced evidence to show discriminatory intent on the part of managers or supervisors and other evidence from which inference of discriminatory intent on the part of Dillard’s may be drawn. Examples of this evidence include store manager Edson’s intervention to prevent arrest of a white shoplifter contrary to the zero tolerance policy, a supervisor’s instructions to watch “black kids” and not give fragrance samples to blacks, and routine announcement of Code 44 upon the entrance of an African American into the store. Former employee Tammy Benskin testified that managers closely surveilled blacks but never whites, was told that black customers “steal all the time,” and quit her job partly because of the racial prejudice she witnessed. Rick Beasley, a state official who had worked at the Columbia Dillard’s, testified that racial discrimination there was systematic. This evidence is sufficient to create a genuine issue of fact on whether Dillard’s had discriminatory security and customer service policies and whether the specific actions complained of by appellants resulted from these policies.

On the record before us we conclude that summary judgment should not have been granted to Dillard’s on the § 1981 claims of Gregory and the Turners because they established prima facie cases of discriminatory intent and interference with protected activity. The judgment against them should be reversed and their § 1981 claims remanded for further proceedings, but the judgment against McKinney should be affirmed because he failed to establish a prima facie case.

D.

We turn next to the claims which were dismissed for failure to state a claim on which relief could be granted— the claims of Monroe, Richmond, Hamilton, Gage, Warrick, Wisham, Felicia Turner, Snell, and Lee. The grant of a motion to dismiss is reviewed de novo, Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir.2004), taking all facts alleged in the complaint to be true and construing the pleadings in the light most favorable to the plaintiffs. Particularly in civil rights actions the complaint should be liberally construed. Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995). Appellants argue that the district court applied an inappropriately narrow legal standard to the allegations in the complaint (per se interference), that their allegations were sufficient under the rules, and that their claims should not have been dismissed. Dillard’s contends that the amended complaint is conclusory and failed to allege facts sufficient to show discriminatory intent or denial of a contract right.

The amended complaint alleges that Dillard’s “frequently engages in intentionally racially discriminatory surveillance pursuant to a policy and practice of racial discrimination, heightened scrutiny of African-American customers, and racial profiling.” These allegations are sufficient to satisfy the intent element of a prima facie case under § 1981, and direct proof of discriminatory intent is not required. See Kim, 123 F.3d at 1059. The amended complaint alleges that each plaintiff “sought to make and enforce a contract for services ordinarily provided by Dillard’s,” and that the ability to make and close contracts was thwarted by the denial of services, such as “the privileges of making shopping purchases,” which were provided to similarly situated white customers, or the provision of services “in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory,” such as “intentionally racially discriminatory surveillance.”

Great precision is not required of the pleadings. See Smith v. Ouachita Technical Coll., 337 F.3d 1079, 1080 (8th Cir.2003). The allegations in the complaint need not track the precise wording of a § 1981 prima facie case because there is not “a rigid pleading requirement for discrimination cases.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (Title VII case). The “simplified notice pleading standard” under Fed.R.Civ.P. 8(a) requires only a statement that “ ‘give[s] the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.’” Id., quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

The amended complaint satisfies that notice requirement, for when its allegations are construed in the light most favorable to appellants, as they must be, Frey, 44 F.3d at 671, they show that appellants have alleged facts constituting the elements of a prima facie case under § 1981: that appellants are African Americans, that they shopped for and selected particular items of merchandise, that they attempted to obtain services offered to others, that as African Americans they were subject to race based surveillance, and that Dillard’s failed to provide them equal services and thwarted their attempts to contract.

The factual allegations in the complaint are “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, — U.S. —, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). The complaint states how, when, and where they were discriminated against. The complaint alleges that after 1998 these appellants were “followed and/or otherwise subjected to surveillance based upon their race” at the Columbia Dillard’s store. A plaintiff alleging that a retailer followed and otherwise subjected him to surveillance based on his race may be able to prove facts entitling him to relief under § 1981. The law forbids discriminatory harassment, see Green, 483 F.3d at 539; Garrett, 295 F.3d at 101; see also H.R.Rep. No. 102-40(11), at 2, U.S.Code Cong. & Admin.News 1991, pp. 694, 695, so long as the plaintiff has a contractual interest. See Hampton, 247 F.3d at 1118. Finally, the complaint’s allegation of “a policy and practice of racial discrimination” is sufficient to give Dillard’s notice that plaintiffs seek to hold Dillard’s directly liable under § 1981. We conclude that the pleadings, while not particularly detailed, were nevertheless sufficient as a matter of law and that the claims should not have been dismissed under Rule 12(b)(6).

The issue on appeal for the Rule 12(b)(6) dismissals is only whether their complaint stated a claim upon which relief could be granted, see also Fed.R.Civ.P. 8(a), and we conclude that the pleadings did so. The claims should therefore be reinstated and remanded for further proceedings.

III.

Lastly we address the dismissal of the MHRA claims of Gregory and Alberta and Carla Turner on Dillard’s motion for summary judgment. The district court concluded that the Missouri statute banning discrimination in public accommodations did not cover retail establishments like Dillard’s. Gregory and the Turners protest that Dillard’s fits within the MHRA’s definition of public accommodation and that the district court erred in dismissing these claims. Dillard’s responds that the district court correctly concluded that the MHRA does not apply to Dillard’s because retail establishments are not one of the examples which follow the statute’s definition of public accommodation.

The MHRA prohibits discrimination on the basis of race in “any place of public accommodation.” Mo.Rev.Stat. § 213.065(2). Places of public accommodation are defined within the statute as:

all places or businesses offering or holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public or such public places providing food, shelter, recreation and amusement, including, but not limited to:....

Id. § 213.010(15) (emphasis added). After this general definition, the legislature listed some examples of places covered by the law; retailers were not mentioned. Id. § 213.010(16)(a)-(f).

Noting that no Missouri court had decided whether the MHRA covers retail stores, the district court looked to the federal civil rights law on public accommodations for guidance. Since the wording of several of the examples in the MHRA, including places selling food for “consumption on the premises,” was borrowed from Title II of the Civil Rights Act of 1964, the district court relied on cases such as Priddy v. Shopko Corp., 918 F.Supp. 358, 359 (D.Utah 1995) (holding that a retail establishment is not a place of public accommodation under Title II), to conclude that the MHRA does not cover retailers. Gregory and the Turners contend that this was misguided since the MHRA differs significantly from Title II.

The MHRA contains a broadly phrased definition of public accommodation and examples which are illustrative, rather than exclusive. In contrast, public accommodations under Title II are those which fit within five categories of covered establishments. Retailers do not fall within those categories. The listed categories are not just examples, for the federal statute applies only to them. Congress thus provided “a comprehensive list of establishments that qualify as a ‘place of public accommodation,’ and in so doing excludefd] from its coverage those categories of establishments not listed.” Denny, 456 F.3d at 431 (citation omitted).

The Missouri legislature approached the coverage issue from the opposite direction taken by Congress. The MHRA has a general definition of public accommodation followed by illustrative examples. It specifically provides that the term public accommodation is not limited to those examples. Although Missouri courts may look for guidance to similar federal civil rights statutes and case law in deciding cases of first impression under the MHRA, see Mo. Comm’n on Human Rights v. Red Dragon Rest., Inc., 991 S.W.2d 161, 168 (Mo.Ct.App.1999), they also examine any differences between the statutes. See Wentz v. Indus. Automation, 847 S.W.2d 877, 879 (Mo.Ct.App.1992), overruled on other grounds by State ex rel. Diehl v. O’Malley, 95 S.W.3d 82 (Mo.2003). The Missouri Supreme Court has also pointed out that the MHRA extends its protections further than the Civil Rights Act of 1964. See Keeney v. Hereford Concrete Prods., Inc., 911 S.W.2d .622, 624-25 (Mo.1995) (noting the broader language of another provision in the MHRA).

In addition to its very broad definition of public accommodations the MHRA contains a nonexhaustive list of examples. We conclude that because of the significant differences between the state and federal statutes, Title II cases are not controlling on the issue of whether Dillard’s is a public accommodation.

Under the MHRA, public accommodations are “all places or businesses” offering “goods [and] services” for the general public’s “peace, comfort, health, welfare and safety.” It is not contested that Dillard’s offers goods, services, and facilities for the benefit of the general public. The Missouri statutory language in the general definition of public accommodations easily encompasses retail stores such as Dillard’s. The wording of the MHRA’s definition of public accommodation is broader than the specific examples which follow it, and more entities would fit within the general definition than the listed examples. Reading the statute to include retail establishments is also consistent with Missouri precedent which emphasizes that a remedial statute should be interpreted liberally. See Red Dragon Rest., 991 S.W.2d at 167, quoting Hagan v. Dir. of Revenue, 968 S.W.2d 704, 706 (Mo.1998).

Dillard’s argues that' interpreting the MHRA to cover retailers would convert the statutory examples of covered establishments into surplusage, but this argument ignores the introductory words “including, but not limited to.” When a list is introduced with the term “including,” it is generally interpreted as enumerating “illustrative application^],” not as constituting an “all-embracing definition.” Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 86 L.Ed. 65 (1941). It is rather Dillard’s interpretation which would create surplus-age in the statute, because it gives no effect to the language “including, but not limited to.” See Hadlock v. Dir. of Revenue, 860 S.W.2d 335, 337 (Mo.1993) (“[E]ach word, clause, sentence and section of a statute should be given meaning.”). Dillard’s interpretation also disregards and gives no effect to the Missouri statutory definition of public accommodations which uses language broad enough to cover Dillard’s.

For these reasons we conclude that Dillard’s is a place of public accommodation under Missouri law and that the MHRA claims of Gregory and the Turners should not have been dismissed for lack of coverage.

IV.

On this appeal the fundamental questions are whether or not the district court erred in granting summary judgment to Dillard’s on four of the'appellants’ claims or erred in dismissing the remainder for failure to state a claim. The record has not been developed on the other affirmative defenses alleged by Dillard’s in its answer, the district court did not have occasion to address them, and they are not before us at this point. We conclude here only that Gregory and the Turners have produced enough evidence to show prima facie cases, that McKinney did not, and that the pleadings of the other appellants were sufficient to state a claim.

The record in this ease includes evidence from both former employees and frustrated shoppers about racially discriminatory policies and practices at Dillard’s that thwarted appellants’ attempts to contract. Appellants alleged and produced evidence to show that Dillard’s denied African American shoppers privileges and services enjoyed by other customers including the same ability to make purchases. In its Rule 12(b)(6) determination the district court failed to consider all of the allegations in the complaint including those incorporated by reference, and on summary judgment it failed to consider the full record with all of its corroborating evidence. That evidence includes testimony about harassing surveillance at Dillard’s; instructions to employees to follow black shoppers; use of Code 44 to notify employees when blacks enter the store; discriminatory policies and practices in respect to merchandise returns, provision of fragrance samples, and prosecution of shoplifters; withholding of services; and discrimination by employees in managerial positions.

In sum, we affirm the judgment of the district court in favor of Dillard’s on Jeff McKinney’s claim, but we conclude that the district court erred in granting summary judgment on the § 1981 and MHRA claims of Crystal Gregory and Alberta and Carla Turner and in- dismissing the other § 1981 claims under Fed.R.Civ.P. 12(b)(6). We therefore reverse the judgment on those claims and remand them for further proceedings not inconsistent with this opinion.

1 . Antwinette Avery and Cecilia Young subsequently withdrew from the appeal, and Deidre Golphin voluntarily dismissed her claim.

2 . Bediako classified these components in three parts, combining the third and fourth factors listed above. We discuss these factors separately in order to sharpen the focus of the analysis.

3 . The record reflects that Butler settled his claims and that Golphin voluntarily dismissed hers. Summary judgment was later entered against Young who has withdrawn her appeal.

4 . The district court recognized only one non-surveillance claim in Gregory’s evidence, involving the removal of a security tag on an item she had previously purchased. This claim was dismissed on the ground that she was not at Dillard's to buy anything on the day the tag was removed and thus had no contractual interest. Gregory has not addressed this incident on her appeal.

5 . The dissent's proposal to import into the retail context the "severe and pervasive” test used in employment discrimination cases would be a drastic departure from the law of this circuit and others; it also overlooks significant differences between the settings. Discriminatory retail harassment thwarts the formation of a contract while discriminatory harassment on the job alters the terms of an already formed contract. The employment relationship is a continuing one affecting the work environment and the severe and pervasive test arose out of that setting.

6 . The paragraph quoted by the district court from Garrett distinguished "unadorned” surveillance from actionable surveillance which “crosses the line into harassment [or] impairs a shopper’s ability to make and complete purchases.” 295 F.3d at 101.