dissenting:
One can only read with dismay the majority’s analysis of a rather straightforward act of discrimination. Presumably, if K-Mart had unleashed fire hoses or police dogs on the Barams or if its personnel had stood in the doorway blocking access to the store, the majority would find that an act of discrimination had occurred. Anything less subtle seems beyond the majority’s understanding.
While the majority states that “[t]he sole issue before this Court is whether K-Mart Corporation denied the Barams the advantages, services, and privileges, offered others at its St. Albans, West Virginia store,” 181 W.Va. at 476, 383 S.E.2d at 280, it spends little time on this issue. Instead, it delves into a variety of possibilities intended to denigrate the Barams and to justify the conduct of K-Mart and the police it summoned to the store. This is done in spite of the fact that there is absolutely no dispute in the record that Mr. Baram has been a resident since 1973, has an electrical engineering degree, and is a successful businessman.
Initially, we are advised by the majority that “K-Mart personnel called the St. Al-bans Police as a precautionary measure, believing the Barams might be a group of shoplifters the store had been warned were victimizing the area.” 181 W.Va. at 474, 383 S.E.2d at 278. This call was made even before the Barams had come into the store. The majority then informs us that after the Barams left the store and were being followed by the police some 800 yards from K-Mart, Mr. Baram asked the police officer why he was being followed. The majority then reports: “The officer, believing that Mr. Baram was going to ‘jump me or something,’ advised Mr. Baram that he had been instructed by his supervisor to follow him and called for a back-up unit.” 181 W.Va. at 474, 383 S.E.2d at 278. Obviously, the majority insinuates that Mr. Baram is a dangerous fellow, given to physical violence toward police officers, and as a result the officer “called for a back-up unit.”
Next, we are provided what lies close to the heart of the majority’s opinion, and its stated reason that the Barams deserved what they got. In a call Mr. Baram made to the St. Albans police after the incident, “[i]t was explained to him that K-Mart personnel had believed he and his family might be associated with ‘gypsies,’ who routinely engaged in shoplifting.” 181 W.Va. at 474, 383 S.E.2d at 278. The gypsy theme is then fully elaborated upon in the majority’s next paragraph.1 We are *480informed in note 1 “that one officer later testified at the hearing that ‘gypsies’ were usually of darker skins [sic], wore loose fitting clothes, and wore rancid perfume.”
It must be remembered that Mr. Baram was accompanied by his wife and two other adult couples and that everyone except Mrs. Baram wore western-style clothing. Consequently, it is beyond belief how the majority can place any credence on K-Mart’s assertion that the Barams fit a “bona fide shoplifting profile.” 2 This assertion has no more validity than that of the store manager in Adickes v. S.H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). There, the manager stated that he refused to serve a mixed group of blacks and whites “because he was fearful of a riot in the store by customers angered at seeing a ‘mixed group’ of whites and blacks eating together.” 398 U.S. at 154, 90 S.Ct. at 1606, 26 L.Ed.2d at 152. (Footnotes omitted). This was soundly rejected by the Supreme Court.
Laying aside these peripheral matters, which serve only to draw the unwary reader’s attention from the crucial issue, it is apparent that Mr. Baram is entitled to the benefit of Syllabus Point 1 of West Virginia Human Rights Comm’n v. United Transp. Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981): “West Virginia Human Rights Commission’s findings of fact should be sustained by reviewing courts if they are supported by substantial evidence or are unchallenged by the parties.” I conclude that the Commission’s finding of discrimination is amply supported.
Even the majority admits that Mr. Bar-am’s “group was being observed by K-Mart employees and one policeman.” 181 W.Va. at 474, 383 S.E.2d at 278. The Commission found that they were being followed by K-Mart personnel as they attempted to shop in the store. Mr. Baram tried to ask the K-Mart personnel why they were being followed. He received no satisfactory answers. It was obvious to him that other patrons observed the surveillance of his group, and he became embarrassed and humiliated, as did his wife and the other members of the group.
This harassment caused the Barams to abandon any attempt to shop and to leave the store. The three policemen who had come to the store at K-Mart’s request continued to follow them as they entered the St. Albans Mall. Other patrons at the mall witnessed this event. This only further humiliated Mr. Baram and his family, as it appeared that they were being chased by the police. They then gave up any further thought of shopping at all, proceeded to their vehicle, and left the mall.
If this is not discrimination, then I have misunderstood the law. Discrimination need not be overt. Indeed, as New York’s highest court stated more than thirty years ago in Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581, 584, 44 A.L.R.2d 1130, 1135 (1954):
“One intent on violating the Law Against Discrimination cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive — for we deal with an area in which ‘subtleties of conduct ... play no small part.’ Cf. National Labor Relations Bd. v. Express Pub. Co., 312 U.S. 426, 437, 61 S.Ct. 693, 700, 85 L.Ed. 930.”
The majority dismisses Browning v. Slenderella Sys. of Seattle, 54 Wash.2d 440, 341 P.2d 859 (1959), by stating that “the ‘discourteous’ defendant, Slenderella, refused to serve the complainant.” 181 W.Va. at 478, 383 S.E.2d at 282. To the contrary, the manager was courteous and never refused to serve the complainant, but just never got around to actually serving her:
“The plaintiff was not told in so many words that she would not be served, or that she should leave; nor was any phys*481ical violence used or threatened. The defendant’s employees were always courteous; however, one need not be obvious or forthright to effect a discrimination. ... This case exemplifies the fact that discrimination may arise just as surely through ‘subtleties of conduct’ as through an openly expressed refusal to serve.” 54 Wash.2d at 444, 341 P.2d at 862.
Here, the “subtleties of conduct” were calling the police and having them, along with store personnel, follow Mr. Baram and his relatives as they attempted to shop.
In a more recent case, Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1043 (2d Cir.1979), the court gave this admonition which the majority regrettably has overlooked:
“ ‘As overtly bigoted behavior has become more unfashionable, evidence of intent has become harder to find. But this does not mean that racial discrimination has disappeared.’ [Metropolitan Hous. Dev. Corp. v.] Village of Arlington Heights, [558 F.2d 1283, 1290 (7th Cir. 1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978)]. It means that when a discriminatory effect is present, the courts must be alert to recognize means that are subtle and explanations that are synthetic.”
These statements are not arcane points of law. They rest upon the common sense notion understood by everyone, that anti-discrimination laws are directed not only at the blatantly obvious, but also “at subtle and covert activities designed to defeat its policy.” Wilson v. Sixty-Six Melmore Gardens, 106 N.J.Super. 182, 185-86, 254 A.2d 545, 546 (1969). In Wilson, a housing discrimination case, the court concluded:
“The deliberate use of tactics of discouragement, whether by delay, credit investigations, withholding of material information, or by more subtly suggesting the applicant is unwelcome, constitutes a violation of the statute if the practice is applied selectively to a particular unwanted race[.]”
See also Heights Community Congress v. Hiltop Realty, Inc., 774 F.2d 135 (6th Cir. 1985), cert. denied, 475 U.S. 1019, 106 S.Ct. 1206, 89 L.Ed.2d 318 (1986); Marable v. H. Walker & Associates, 644 F.2d 390 (5th Cir.1981); Bryan v. Commonwealth Pennsylvania Human Relations Comm’n, 45 Pa.Cmwlth. 125, 404 A.2d 1368 (1979).
It seems to me that a powerful disincentive is created against a shopper when he encounters the police watching him as he goes into the store and is followed by the police and store personnel as he travels about the store. The message is not even subtle, it is forceful and distinct: “You are not welcome.” As a consequence, the individual does not shop. When such an individual is within the protected class, as the Barams unquestionably are,3 this is discrimination. As earlier noted, an applicant for housing who is discouraged from applying by tactics of delay makes a case of discrimination. Here the tactic was not delay, but intimidation.
I must also reject the justification for these discriminatory acts offered by K-Mart and assiduously embraced by the majority, i.e., that the Barams fit some type of gypsy shoplifting profile. The majority overlooks the traditional rule stated in Robinson, 610 F.2d at 1040:
“In evaluating the proposed justifications, the district court must carefully scrutinize suggested reasons that are not objective in nature. In cases in which discriminatory intent could be inferred from the sequence of events, the courts have generally viewed subjective explanations with considerable skepticism. The wisdom in such skepticism is obvious. ‘Any defendant can respond to a discriminatory effect with a claim of some subjective preference or preroga*482tive and, if such assertions are accepted, prevail in virtually every case.’ Comment, Applying the Title VII Prima Fa-cie Case to Title VIII Litigation, 11 Harv.C.R. — C.L.L.Rev. 128, 182 (1976) (emphasis in original).”
Furthermore, it is settled law that in a public accommodation discrimination case, it is not necessary to prove that the defendant intended to be discriminatory. It is sufficient if an act of discrimination occurred.
The attempted justification in this case cannot be sustained for several reasons. The first is a factual one — the Barams plainly did not fit the gypsy profile. The only one who wore a flowing dress was Mr. Baram’s wife. More importantly, as the California Supreme Court discussed in Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 739, 180 Cal.Rptr. 496, 507, 640 P.2d 115, 125, cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982), it is not proper for a business to discriminate against a class of people because some members of that class have acted improperly in the past. An antidiscrimination statute does not foreclose a business enterprise from barring service to an individual on the basis of his own disruptive or unlawful conduct. However, as the Wolfson court stated, this “does not permit a business enterprise to exclude an entire class of individuals on the basis of a generalized prediction that the class ‘as a whole’ is more likely to commit misconduct than some other class of the public.” (Emphasis in original).
Supporting this principle, and providing some factual analogy to the justification raised in this case, is Lewis v. Doll, 53 Wash.App. 203, 765 P.2d 1341 (1989). In Lewis, a black patron sued a 7-Eleven Store for refusing him service. The store owner’s justification was that there had been a series of shoplifting incidents at the store involving blacks. Consequently, a policy had been developed not to serve any black people. The court rejected this justification defense because “refusal of service [can] apply only to situations where there is objective evidence a particular individual is engaging in or has in the past engaged in improper conduct. Refusal of service cannot be predicated solely because of race.” 53 Wash.App. at 210, 765 P.2d at 1345. Here, one need only substitute the word “gypsies” for “blacks” and the name “K-Mart” for “7-Eleven.”
It does not take a vivid imagination to realize that the public accommodation statute can be virtually nullified if we permit a justification such as asserted in this case. It is quite simple to create any number of stereotypical profiles: white males with long hair or Italian-looking Mafia features, slender Oriental types with quick movements, Indians in soiled moccasins and dirty Levis, or country folk in bib overalls and muddy boots. If the owner reports that someone who fit that profile disrupted business or shoplifted in the past, the majority provides a ready template to deny service to all such individuals.
Finally, I must admit that the majority is not without some compassion. In its closing paragraph it warns, “we do not condone merchants calling the police at the sight of a person or party it believes a possible thief.” 181 W.Va. at 479, 383 S.E.2d at 283. Unfortunately, this is exactly what it has condoned, and upon the basis of a racial motive. If those in Mr. Baram’s group had had white skin and blond hair, instead of dark skin and black hair, this incident would never have occurred. I, therefore, dissent.
. The full text of this paragraph is:
"Subsequent testimony revealed that approximately a week or two before September 19, 1981, K-Mart had received a warning from county sheriffs that a group of ‘gypsies’ was present in the area and had victimized a local Putnam County store through mass shoplifting. The term ‘gypsy’ was used generically among retail merchants and police, referring to an organized band of shoplifters of no specific origin or nationality. K-Mart noted that in 1980, the St. Albans K-Mart store had been victimized by a similar group of shoplifters who entered the store, dispersed, and through ‘diversionary tactics and skilled shoplifting techniques,’ proceeded to conceal and attempt to steal a large amount of merchandise. On that occasion, the St. Albans *480Police were summoned and, with the help of K-Mart personnel, restored order and arrested the shoplifters." 181 W.Va. at 474, 383 S.E.2d at 278.
. This language appears to be an invention of the majority. It was not used by the police or by the K-Mart personnel.
. The majority accepts the fact that the Barams were members of a protected class without any discussion. 181 W.Va. at 477, 383 S.E.2d at 281. The United States Supreme Court in Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), concluded that racial discrimination is broad enough to include "ancestry" and "ethnic” characteristics. Arabs, even though they are a part of the Caucasian race, could nevertheless be the subject of racial discrimination.