2016] DISCRIMINATION BY CUSTOMERS 225
80% more likely to be stiffed.6 Studies of restaurant tipping show similar bias
against female servers.7
Customers discriminate, as well, in how they evaluate those with whom
they do business. The marketing company WordStream analyzed 300
responses from the company’s clients to a request to rate their level of
satisfaction with client service representatives. Overall, clients undervalued
female marketers by 21%.8 This pattern of disc rimination is similar to what is
observed when students rate their professors on teaching evaluations.9
Current law does little to address discrimination by customers, even
though it disproportionately hurts women and persons of color. Federal and
state anti-discrimination laws prohibit firms10 of a certain size from
discriminating against employees and customers on the basis of race, gender,
and other characteristics.11 Fir ms ma y not d ecid e to h ire, or se rve, only w hite s.
Yet the law does not prohibit discrimination by customers.12 White diners may
6. See Ian Ayres et al., To Insure Prejudice: Racial Disparities in Taxicab Tipping, 114 YALE L.J.
1613, 1616 (2005).
7. See, e.g., Matthew Parrett, Customer Discrimination in Restaurants: Dining Frequency Matters,
32, J. LAB. RES. 87, 100–03 (2011) (concluding, based on data collected outside five Virginia
restaurants, that customers tip female servers less than men, unless their customers are regular
patrons or the service quality is exceptional).
8. See Female Client Service Reps Get Lower Scores Despite Better Performance and Experience,
THINKPROGRESS (May 22, 2014), https://thinkprogress.org/female-client-service-reps-get-lower-
9. See generally Sylvia R. Lazos, Are Student Evaluations Holding Back Women and Minorities?: The
Perils of “Doing” Gender and Race in the Classroom, in PRESUMED INCOMPETENT: THE INTERSECTIONS OF
RACE AND CLASS FOR WOMEN IN ACADEMIA 164 (Gabriella Gutierrez y Muhs et al. eds., 2012); Lillian
MacNell et al., What’s in a Name: Exposing Gender Bias in Student Ratings of Teachers, 40 INNOVATIVE
HIGHER EDUC. 291 (2015); William Arthur Wines & Terence J. Lau, Observations on the Folly of Using
Student Evaluations of College Teaching for Faculty Evaluations, Pay, and Retention Decisions and Its Implications
for Academic Freedom, 13 WM. & MARY J. WOMEN & L. 167 (2006).
10. We use the term “firm” to refer loosely to groups of individuals operating as a collective
enterprise—usually, but not always, economic—to achieve particular goals. We use the term in this
Article interchangeably with company, entity, business and, in some cases, educational institutions.
11. Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers with 15
or more employees on the basis of race, color, religion, sex or national origin. 42 U.S.C. § 2000e
(2012). Title II of the Civil Rights Act of 1964 prohibits racial discrimination in “any inn, motel,
or other establishment which provides lodging to transient guests.” 42 U.S.C. § 2000a(b)(1)
(2012). The Fair Housing Act prohibits discrimination based on race, color, religion, sex, familial
status, or national origin. See 42 U.S.C. §§ 3601–31 (2012). Examples of state public
accommodations laws include CAL. CIV. CODE §51(b) (West Supp. 2016); and N.J. STAT. ANN.
§ 10:5-4 (West 2013).
12. The exceptions are section 1981 of the Civil Rights Act of 1866, which prohibits race
discrimination in private contracts, and section 1982 of the same Act, which prohibits race
discrimination in property transactions. 42 U.S.C. §§ 1981
–82 (2012). These statutes apply only
to race discrimination, however, and have not been applied, in practice, against individual
customers. The few cases brought against corporate customers have been easily defended, usually
because of an inability to show discriminatory intent. See, e.g., TRI, Inc. v. Boise Cascade Office
Prods., 315 F.3d 915
, 919 (8th Cir. 2003) (dismissing on the basis of nondiscriminatory reason