Once again a federal court has held that the Civil Rights Act of 1866 (as amended in 1991) provides no relief to a store customer who was subjected to racial insults while trying to buy merchandise. The First Circuit held, in Hammond v. Kmart Corp., 2013 WL 5763267 (1st Cir. 2013), that the "right to contract" protected by 42 U.S.C. §1981 only protects the ability to enter a contract; it provides no relief for racially disparate treatment when one is in a store. Because the customer was able to complete the transaction (laying away merchandise), the store did not prevent her from "contracting." Being subjected to "racial slurs and insults" as she was engaged in the transaction did not deter her from completing the transaction.

The ruling oddly protects those who are deterred from completing the sale but not those who insist on going through with it despite the discriminatory treatment. It also fails to consider the wording of §1982 which protects the "right to purchase personal property." Nor does it comprehend that treatment while in the store is part of the contractual process; contracting does not happen at a discrete magic moment.

The federal public accommodations law, 42 U.S.C. § 2000a, does not cover retail stores so with no §1981 remedy, the plaintiff found herself wholly unprotected by federal statutes. The plaintiff did make a state common law claim of infliction of emotional distress, although it was not clear why she did not also make a claim under the state public accommodations statute, Mass. Gen. Laws ch. 272, §98 which provides: "Whoever makes any distinction, discrimination, or restriction on account of race…relative to the admission of any person to, or his treatment in any place of public accommodation…shall be liable to any person aggrieved thereby…"