‘Banking While Black’: How Cashing a Check Can Be a Minefield

Black customers risk being racially profiled on everyday visits to bank branches. Under federal laws, there is little recourse as long as the banks ultimately complete their transactions.

Clarice Middleton shook with fear as she stood on the sidewalk outside a Wells Fargo branch in Atlanta one December morning in 2018. Moments earlier, she had tried to cash a $200 check, only to be accused of fraud by three branch employees, who then called 911.

Ms. Middleton, who is black, remembers thinking: “I don’t want to die.”

For many black Americans, going to the bank can be a fraught experience. Something as simple as trying to cash a check or open a bank account can lead to suspicious employees summoning the police, causing anxiety and fear — and sometimes even physical danger — for the accused customers.

There is no data on how frequently the police are called on customers who are making legitimate everyday transactions. The phenomenon has its own social media hashtag: #BankingWhileBlack.

Most people who experience an episode of racial profiling don’t report it, lawyers say. Some find it easier to engage in private settlement negotiations. The few who sue — as Ms. Middleton did — are unlikely to win in court because of loopholes in the law. Now, the police killing of George Floyd in Minneapolis, which set off nationwide protests against systemic racism, is prompting more people to speak up.

Ms. Middleton had gone to the Wells Fargo branch in Druid Hills, a wealthy, mostly white neighborhood in Atlanta, to cash a refund for a security deposit from a real estate company that had an account with the bank. Three bank employees examined the check and her identification, but refused to look at the additional proof Ms. Middleton offered. They declared the check fraudulent, and one employee called the police, according to her lawsuit.

When an officer arrived, Ms. Middleton showed him her identification and the check stub. As a former bank teller, she knew that would be proof enough that her check was authentic. The officer left without taking action. The Wells Fargo employees asked Ms. Middleton whether she still wanted to cash the check.

“I said yes, because they had written all over the back of the check,” said Ms. Middleton, who sued Wells Fargo last year for racial discrimination and defamation and sought an unspecified amount of damages.

Mary Eshet, a Wells Fargo spokeswoman, said Ms. Middleton had begun yelling “abusive and profane language” at the employees when she saw her ID being scanned.

“Employees tried to address Ms. Middleton’s concerns by explaining our policies, but Ms. Middleton continued to yell profane language,” Ms Eshet said. “She was asked to leave the branch multiple times and refused, so our employees followed their processes to engage law enforcement.” She added that the bank “appreciates the sensitivities of engaging law enforcement and the importance of continually reviewing our training, policies and procedures.”

Ms. Middleton’s lawyer, Yechezkel Rodal, said her client had not used profanity. “Wells Fargo is in possession of the video surveillance showing exactly what happened in the branch that morning,” he said. “The video will not support Wells Fargo’s lies.”

Some incidents play out without the involvement of police or courts.

In March 2019, Jabari Bennett wanted to withdraw $6,400 in cash to buy a used Toyota Camry from a dealership in Wilmington, Del. He had just sold his house in Atlanta and moved to Wilmington to live with his mother. Having been a Wells Fargo customer for four years — he had around $70,000 in his account from the sale of his house — Mr. Bennett walked into a nearby branch expecting to be back at the dealership and in his Camry within minutes.

He came away empty-handed and reeling.

First, a teller refused to accept that he was the account holder, questioning his out-of-state driver’s license, he said — even though Mr. Bennett had informed the bank of his new address just two weeks earlier. Then, a branch manager told Mr. Bennett to leave. He left in disbelief, then returned to try to complete the transaction. This time, the manager threatened to call the police. Mr. Bennett left again.

The experience “made me feel like I was nothing,” Mr. Bennett said.

He abandoned the deal on the car. A week later, he moved all his money out of Wells Fargo and then hired Mr. Rodal, who had gained a reputation for representing black customers against the bank after the story of one of his clients went viral in 2018. Mr. Rodal sent Wells Fargo a letter, but negotiations stalled.

Mr. Bennett decided to share his story publicly in light of the recent protests: “I don’t want anybody else to go through what I went through.”

Ms. Eshet, the Wells Fargo spokeswoman, said that branch employees were trained to spot potential fraud, and that the bank had increased security protocols to thwart internet scams involving large transfers of money.

“In this instance, there were enough markers for our team to conduct extra diligence in order to protect the customer and the bank,” she said.

The protests also pushed Benndrick Watson into action.

Last spring, Mr. Watson was driven out of a Wells Fargo branch in Westchase, a wealthy neighborhood near Tampa, Fla., by what the branch manager described as a “slip of the tongue.”

Mr. Watson, who was already a bank customer with a personal checking account, went to the branch to open a business account for his law firm.

A banker did a corporate records search and found Mr. Watson’s other business, a record label. Mr. Watson tried to direct the employee to the records for his law firm instead.

Eventually, the branch manager got involved. He sat down across from Mr. Watson and watched him enter information, including his Social Security number, into a keypad.

Then, the man uttered the N-word.

”He just said it — clear as day, no mistake,” Mr. Watson said. “My jaw just dropped, I dropped the pen, there was silence, he kind of looked at me, I said: ‘Did you really just say that?’”

Mr. Watson said the man had immediately begun to protest, saying that he had not meant to use the word, and that he was deeply sorry. Mr. Watson did not buy it. He got up and left. The manager followed him to his car, apologizing profusely, and resigned from the bank shortly afterward.

“I felt like I had a knife in my gut,” Mr. Watson said. “It’s a sickening word.”

Mr. Watson turned to Mr. Rodal, who wrote to Wells Fargo seeking an apology. The bank’s regional president, Steve Schultz, responded. “It seems that the utterance of the offensive term was unintentional,” Mr. Schultz wrote, but said the bank had taken “corrective action” against the branch manager anyway, without providing details. Ms. Eshet of Wells Fargo said the manager was deemed ineligible for any job with the bank.

Mr. Watson sued Wells Fargo in federal court in Florida on June 4.

In a statement, Ms. Eshet said: “We deeply apologize to Mr. Watson. There’s no excuse for it, and while we took action to address the matter, it cannot undo what happened and how he felt. We are very sorry.”

The problem is hardly confined to Wells Fargo. Last June, Robyn Murphy, a public relations consultant in Maryland, took her 18-year-old son, Jason, to a Bank of America branch in Owings Mills, Md., to open a joint savings account. Ms. Murphy, a 20-year customer of the bank, said she was shocked when an employee refused to proceed after a computer program flagged her son’s Social Security number as fraudulent.

Ms. Murphy protested: Her son had his own checking account at the bank. His Social Security number had already been used there without issue. The Murphys are black. Mr. Murphy, his mother said, is 6-foot-9.

“For all I know, it’s fraud,” the employee told them. Ms. Murphy said he had asked them to come back with Mr. Murphy’s Social Security card. When Mr. Murphy stood up, the employee yelled: “Don’t get up!”

After Ms. Murphy contacted a senior vice president she knew at the bank, other officials apologized and offered to open the branch whenever it was convenient for the Murphys to return and complete the transaction — which they did.

“It weighed on us very heavily for a long time,” Ms. Murphy said.

“We understand the client did not feel she and her son were treated properly in this interaction with our team, and we regret that,” Bill Halldin, a Bank of America spokesman, said in an emailed statement. “These alerts are designed to protect our clients from fraud and misuse of their personal information.” He declined to comment on what, if any, action the bank had taken against the employee.

Banks say they reject racism of any sort. The country’s four largest banks by asset size, JPMorgan Chase, Wells Fargo, Bank of America and Citigroup, all require branch employees to complete annual diversity training, according to the banks’ representatives.

Still, banks have not managed to weed out discrimination. The New York Times reported in December that a JPMorgan Chase employee had described a customer as being “from Section 8” and therefore undeserving of service. The bank has since said it would seek to increase its sensitivity to issues surrounding race.

But little is mandated by law. The Civil Rights Act of 1964 lists specific businesses that may not treat black customers differently: movie theaters, hotels, restaurants, and performance and sports venues. Federal courts have held that because the law identifies the kinds of businesses to which it applies, those not on the list, such as banks, cannot be held to it. That loophole makes it hard for victims of racial profiling to win in court.

There is an additional limitation. In 1866, Congress created new laws to establish rights for black Americans, including one giving them the right to enter into agreements to buy goods or services and have those contracts enforced. Courts have since ruled that the law requires only that service be granted eventually.

In 2012, for instance, a federal appeals court ruled that a Hispanic man who had been turned away by a white cashier at a Target store in Florida did not have a case against Target because he was able to complete his purchases with a different cashier.

That could stymie Ms. Middleton’s case. Wells Fargo is arguing that because she was eventually able to cash her check, a judge should dismiss it.

Let’s talk about what it means to be a Republican….

 

 

 

 

Let’s talk about that new liberal plan….

Biden Wants to Work With ‘the Other Side.’ This Supreme Court Battle Explains Why.

In the clash over Robert H. Bork’s nomination, Joe Biden’s moderate instincts defined a winning strategy.

Joseph R. Biden Jr. was on the brink of victory, but he was unsatisfied.

Mr. Biden, the 44-year-old chairman of the Senate Judiciary Committee, was poised to watch his colleagues reject President Ronald Reagan’s formidable nominee to the Supreme Court, Robert H. Bork. The vote was unlikely to be close. Yet Mr. Biden was hovering in the Senate chamber, plying Senator John W. Warner of Virginia, a Republican of modestly conservative politics and regal bearing, with arguments about Bork’s record.

Rejecting a Supreme Court nominee was an extraordinary act of defiance, and Mr. Biden did not want a narrow vote that could look like an act of raw partisan politics.

“We already had Bork beat,” said Mark Gitenstein, who was then chief counsel to Mr. Biden’s committee. “But Biden really wanted to get Warner because he had such stature.”

Mr. Biden’s entreaties prevailed: Mr. Warner became one of 58 senators to vote against Bork, and one of six Republicans.

The Senate’s resounding rejection of Judge Bork in the fall of 1987 was a turning point, the first time it spurned a nominee to the high court for primarily ideological reasons. The vote ensured that the court’s swing seat would not go to a man with a long history of criticizing rulings on the rights of African-Americans and women. It also enraged a generation of conservatives and transformed the judge’s name into an ominous verb: Fearful of getting “Borked,” no nominee would ever again speak so freely about his views as Bork did.

The Senate’s resounding rejection of Judge Robert H. Bork in the fall of 1987 was a turning point, the first time it spurned a nominee to the high court for primarily ideological reasons.

It was also a personal turning point for Mr. Biden. In the Bork debate, Mr. Biden’s political ethos found its most vivid and successful expression.

A review of Mr. Biden’s conduct in the debate — including interviews with 16 people directly involved in the nomination fight, and a review of the hearings and Mr. Biden’s speeches — yielded a portrait of Mr. Biden as an ambitious young senator determined to achieve a vital liberal goal by decidedly unradical means.

The strategy Chairman Biden deployed then is the same one he is now proposing to bring to the White House as President Biden.

In the 1980s, as today, he saw bipartisan compromise not as a version of surrender, but as a vital tool for achieving Democratic goals.

Then, as now, Mr. Biden saw the culture and traditions of the Senate not as crippling obstacles, but as instruments that could be bent to his advantage.

And in both defining moments — his leadership of the Bork hearings and his third presidential campaign — Mr. Biden made persuading moderates, rather than exciting liberals, his guiding objective.

Mr. Biden, whose campaign declined to make him available for an interview, has strained to defend this approach in the 2020 presidential primary, offering only a halting rationale for a political worldview that other Democrats see as out of date. His rivals have branded him as a timid and even reactionary figure — a creature of the Senate cloakroom who partnered with former segregationists to pass draconian anti-crime legislation and joined with the business lobby to tighten bankruptcy laws.

And Mr. Biden’s opponents point not to the Bork hearings but a different confirmation battle as proof that his instincts are flawed. Four years after Bork was defeated, Mr. Biden would again take an accommodating approach to his Republican colleagues during Justice Clarence Thomas’s confirmation hearings, allowing harsh and invasive questioning of Anita Hill, the law professor who accused the nominee of sexual harassment. Mr. Biden would later express “regret” for the treatment she endured.

But he has never regretted the conciliatory style that led him to triumph against Bork. In that process, every important decision Mr. Biden made was aimed at winning over conservative Democrats and moderate Republicans — men like Mr. Warner.

Now 92, Mr. Warner said in an interview that his memories of the Bork hearings had grown foggy over the years. But two impressions were indelible, he said. The first concerned Reagan’s nominee: “I never encountered a man with a shorter temper,” Mr. Warner said.

The second concerned the caliber of the Senate’s deliberations.

“It was a real, solid, good debate, led by Biden,” Mr. Warner said. “He showed extraordinary leadership.”

The outcome was not foreordained, for either Bork or Mr. Biden. The debate unfolded at a moment of humiliation for Mr. Biden, whose first campaign for president unraveled as the Bork hearings approached their climax. And the judge was no timid adversary, as the journalist Ethan Bronner wrote in a book on the nomination.

“Robert Bork,” Mr. Bronner wrote, “was a man of war.”

Mr. Biden was seated behind a desk in a spacious living room adjoining his study at his Wilmington, Del., home. A few aides sat or stood around the room, where pizza was in generous supply. Squared off against Mr. Biden was Robert H. Bork — or rather, a convincing simulacrum played by the constitutional scholar Laurence Tribe.

Mr. Tribe and Mr. Biden would spar for hours in a series of sessions that August, joined occasionally by other legal experts who would help Mr. Biden hone his queries on subjects from antitrust regulation to sexual privacy.

“Biden’s questions were really smart, and they also needed some sharpening,” Mr. Tribe said in an interview, citing Mr. Biden’s tendency to “ask one thing and mean something slightly different.”

Mr. Biden came to those training sessions by a jagged path, shaped by pressure from progressive activists and the delicate politics of the Judiciary Committee. He was arming himself to oppose Bork, but not with the methods of the left.

On the day Bork was nominated, liberals viewed Mr. Biden with suspicion. Taking over one of the Senate’s great committees at a boyish — for the Senate — age of 44, Mr. Biden had already split with progressives on the issue of busing as a means of desegregating schools. Until Bork, the authors Michael Pertschuk and Wendy Schaetzel would write, Mr. Biden “had been reluctant to challenge Reagan’s transformation of the federal judiciary.”

The previous November, the soon-to-be chairman had given liberals new reason for concern, suggesting to The Philadelphia Inquirer that he might one day vote to put Bork on the Supreme Court, should he be Reagan’s next nominee.

“I’m not Teddy Kennedy,” he told the newspaper.

When Justice Lewis F. Powell Jr., a flexible conservative, resigned from the court in late June, Mr. Biden found himself in the shadow of Kennedy, the party’s leading liberal, and laboring to reconcile his own moderate instincts with a mood of alarm on the left. When the White House announced Bork’s nomination on the first day of July, Kennedy delivered a thunderous warning from the Senate floor: In “Robert Bork’s America,” Kennedy said,

  • “women would be forced into back-alley abortions,
  • blacks would sit at segregated lunch counters.”

The scathing address was a call to arms for the left, and it helped animate a coalition of progressives — led by feminists, civil rights activists and labor unions — that applied pressure to undecided senators throughout the summer.

“His record was so extensive, and it touched almost every issue of importance to American life,” said Nan Aron, a leading anti-Bork activist. “It wasn’t simply a single issue that caused people to be alarmed.”

Another purpose of Kennedy’s speech, his allies have said, was to ensure Mr. Biden would not cave.

“One of the reasons for ‘Robert Bork’s America’ was to freeze Biden,” Jeffrey Blattner, a Kennedy aide, would say decades later, in an oral history for the Edward M. Kennedy Institute for the United States Senate. “He’s running for president. We didn’t want to leave him any choice.”

Mr. Biden quickly aligned himself with Kennedy, and, at his liberal colleague’s urging, secured an agreement from Senator Strom Thurmond — the 84-year-old former segregationist who was the Judiciary Committee’s top Republican — to delay Bork’s hearings until September.

“Biden was under a lot of pressure, particularly from the liberal senators,” said former Senator Dennis DeConcini of Arizona, a centrist Democrat who said he began the confirmation process favorably disposed toward Bork. “At first, I was leaning strongly to vote for him.”

Even as he pledged to oppose Bork, Mr. Biden made clear to progressive leaders in a private meeting that he saw his role as sharply distinct from theirs. He would play an inside game aimed at swaying Senate moderates, starting with the four undecided members of his committee:

  1. Mr. DeConcini and two other Democrats,
  2. Robert C. Byrd of West Virginia and
  3. Howell Heflin of Alabama, and a Republican,
  4. Arlen Specter of Pennsylvania.

Ralph Neas, a civil rights activist who joined the liberals’ initial meeting with Mr. Biden, said the chairman conveyed “that he would take the lead and we would try to put together a bipartisan coalition.”

“Biden’s street cred with a lot of the centrists was quite high,” Mr. Neas said.

Mr. Biden was blunter with his aides: He would not adopt Kennedy’s rhetoric or make abortion his central cause. According to a book Mr. Gitenstein published in 1992 about the confirmation fight, Mr. Biden feared Bork would overturn Roe v. Wade but told aides he did not see the case as “great constitutional law.” More disturbing to him — and, he believed, more likely to sway undecided voters — was a Connecticut case on contraception that revealed Bork’s doubts about a broader right to privacy.

“It really concerns me more than abortion,” Mr. Biden is quoted as saying in the book.

In their sessions, Mr. Tribe said, the future vice president wrestled not just with Bork’s record but also with the idea of disqualifying nominees based on individual issues.

“I remember pushing back on Biden, saying, ‘If you think Roe v. Wade really ought to be the law of the land, shouldn’t that count?’” Mr. Tribe recalled. “He said, ‘Yes, it should count a lot, but I still don’t want to have a flat litmus test.’”

Mr. Tribe remembered thinking: “This guy’s a little bit more cautious than I am. But that’s fine, he’s playing a different role.”

Mr. Biden’s self-assigned role was readily apparent as the Bork hearings began in mid-September. Beaming down at the judge from a crowded dais, Mr. Biden praised him as man of towering achievement and “provocative” views. Flanked by Kennedy at one elbow and Thurmond at the other, Mr. Biden said the hearings should not be “clouded by strident rhetoric from the far left or the far right.”

“Anytime you feel you want to expand on an answer, you are not bound by time,” Mr. Biden encouraged Bork, adding in a tone of levity, “Go ahead and bog us down.”

In the Bork hearings, every important decision Mr. Biden made was aimed at winning over conservative Democrats and moderate Republicans.
In the Bork hearings, every important decision Mr. Biden made was aimed at winning over conservative Democrats and moderate Republicans.CreditJose

The judge, bearded and broad shouldered, did not recognize the trap.

Few men could have been more prepared to face a constitutional interrogation. A former Yale Law School professor who served as the country’s solicitor general and, amid the maelstrom of Watergate, as acting attorney general, Bork brought to the hearings a reputation for quick eloquence and utter mastery of the law.

Mr. Biden had no such reputation, and the columnist George F. Will spoke for much of Washington when he predicted Bork would be “more than a match for Biden.”

The chairman gave his colleagues wide latitude to question Bork, whose testimony consumed five days. It culminated in an unusual Saturday hearing that was dominated by an hourslong debate between Bork and Specter, a former district attorney who frequently rode the Amtrak rails with Mr. Biden, about the meaning of constitutional intent. Mr. Biden had offered Specter half an hour for his questions; when Specter balked at the time limit, Mr. Biden relented and opened the way for a crucial exchange.

“His debate with my father on constitutional law did reveal him to be not sufficiently respectful of precedent, which pushed my father against him, and pushed other swing senators against him,” said Shanin Specter, the senator’s son and a Philadelphia lawyer. “It would not have happened if Biden, as chair, hadn’t permitted the hearings to go exactly as long as they needed to go.”

Mr. Biden sought, too, to quash attacks on Bork that he saw as risking political backlash. He shot down a plan to ambush Bork with a recording of a speech he gave in 1985, insisting on sharing it with the judge before airing it in the committee. And Mr. Biden and his aides refused a request from a number of prominent activists, including Ralph Nader, to testify in opposition to Bork. The left was applying powerful pressure from outside the Senate, but Mr. Biden preferred that its leaders stay there — on the outside.

Ms. Aron, who would later clash with Mr. Biden over the nomination of Justice Thomas in 1991, said the combination of popular pressure on the Senate and Mr. Biden’s high-minded hearings doomed the nominee.

“What defeated Robert Bork was public pressure,” Ms. Aron said. “But what allowed the public to engage was a review of Bork’s record.”

And Bork did himself few favors: While he assured senators, in his rumbling voice, that he would not overturn rulings capriciously, he struggled to explain away past comments decrying “dozens” of shoddy Supreme Court decisions or deriding the Civil Rights Act of 1964, or ridiculing the concept of a constitutional right to privacy. He startled even some allies by describing as “troublesome” the reasoning behind a 1954 case desegregating public schools in the nation’s capital.

In his questions, Mr. Biden posed as a mere mortal grappling with the ideas of a giant.

“Clearly, I do not want to get into a debate with a professor,” Mr. Biden stressed, prodding Mr. Bork about the Griswold v. Connecticut case that ended a state prohibition on birth control: “As I hear you, you do not believe there is a general right of privacy that is in the Constitution.”

“Not one derived in that fashion,” Bork said of the popular decision. “There may be other arguments, and I do not want to pass upon those.”

Watching Bork’s testimony, his political backers knew he was losing. He was articulate, but he was also argumentative. His knowledge of the law was powerful, his political antennae were not.

“I can’t blame Biden,” reflected Tom Korologos, the Republican lobbyist tasked with ushering Bork onto the court. “I blame Bork and Specter, and the other senators, for going on and on.”

Every swing vote on Mr. Biden’s committee swung against Bork, sending him to the floor with a negative recommendation by a vote of 9 to 5. The White House offered Bork the chance to withdraw; he chose martyrdom instead.

His supporters gave him that much, accusing Bork’s opponents of bowing to activists like Mr. Neas and Ms. Aron. “The man’s been trashed in our house,” Senator John Danforth, Republican of Missouri, lamented on the Senate floor. “Some of us helped generate the trashing. Others of us yielded to it.”

Mr. Biden called Mr. Danforth’s complaint an insult to the Senate.

“I have a higher opinion of the ability of my colleagues to do what’s right than, apparently, the senator from Missouri does,” he said.

Mr. Biden’s approach to the Bork nomination was a legislative and political success, one he experienced as personal redemption after his presidential candidacy crumbled. It brought to maturity the strategic instincts that defined him in subsequent battles — including his contested stewardship of the Thomas hearings — and that shape his candidacy today.

The fate of Mr. Biden’s campaign, and perhaps a future presidency, may hinge on whether that version of leadership, defined by collegiality and adherence to procedure, can inspire Democrats and coax cooperation from Republicans. In the presidential race, there is no Ted Kennedy to sound a trumpet for the left while Mr. Biden plays a methodical inside game. And there are no Republicans to be found in the Senate like Specter, who eventually, at Mr. Biden’s urging, quit the G.O.P. to become a Democrat before his death in 2012.

Still, Mr. Gitenstein said he had encouraged the former vice president to draw public attention to his role in the 1987 court fight. The defeat of Robert Bork averted a solidly conservative majority, handing the court’s decisive seat to the more pliant Anthony M. Kennedy, who became a decisive figure in a generation’s worth of eclectic rulings on subjects from campaign finance and union rights to abortion and the legal definition of marriage.

“I don’t think he or anyone else makes enough of the fact that, but for Biden, Roe would be dead 30 years ago, and, but for Biden, we wouldn’t have the gay marriage decision,” Mr. Gitenstein said. “I’ve talked to him about it. He’s got so much on his platter.”

Mr. DeConcini, who at 82 is a supporter of Mr. Biden’s campaign, said he hoped a strategy of moderation could prevail again.

But he admitted to having doubts.

“I’d like to think so, I really would,” Mr. DeConcini said. “I’m just not sure.”