Fifteen Percent or Less: A Title VII Analysis of Racial Discrimination in Restaurant Tipping

Author:Jacob Kline
Position:J.D. Candidate, The University of Iowa College of Law, 2016; A.B., Brown University, 2011
Pages:1651-1680
SUMMARY

At least three studies have demonstrated a racial disparity in the amount of money cab drivers and restaurant servers receive in tips. The facially neutral policy of basing restaurant servers' income largely on the tips they receive produces a discriminatory outcome by paying white servers more than nonwhite servers. Such a discriminatory outcome is the hallmark of a Title VII disparate impact... (see full summary)

 
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1651
Fifteen Percent or Less: A Title VII
Analysis of Racial Discrimination in
Restaurant Tipping
Jacob Kline
ABSTRACT: At least three studies have demonstrated a racial disparity in
the amount of money cab drivers and restaurant servers receive in tips. The
facially neutral policy of basing restaurant servers’ income largely on the tips
they receive produces a discriminatory outcome by paying white servers more
than nonwhite servers. Such a discriminatory outcome is the hallmark of a
Title VII disparate impact case, but there are a number of potential challenges
that may impede the successful pursuit of such a case. These include the
availability of a disparate impact claim to challenge wage discrimination, the
difficulty of defining a challengeable employment practice, and the sufficiency
of the statistical support for the claim. Notwithstanding these challenges, this
Note argues that there is a reasonable chance of success for such a case and
that restaurants should adopt one of the three proposed alternatives to avoid
liability: pooling tips, using a fixed percentage gratuity, or eliminating
tipping altogether.
J.D. Candidate, The University of Iowa College of Law, 2016; A.B., Brown University,
2011. I want to thank the student writers and the editors of the Iowa Law Review for their work on
this Note. I am also thankful for the support and encouragement of my parents, brothers, and
my wife, Alice Baker, throughout my law school career. A special thanks to Professor Michael
Lynn of the Cornell University School of Hotel Administration for inspiring me to write on this
subject.
1652 IOWA LAW REVIEW [Vol. 101:1651
I. INTRODUCTION ........................................................................... 1652
II. HISTORY OF TITLE VII EMPLOYMENT DISCRIMINATION .............. 1654
A. THE CIVIL RIGHTS ACT OF 1964 ........................................... 1654
B. THE CIVIL RIGHTS ACT OF 1991 ........................................... 1656
C. TWO DIFFERENT EMPLOYMENT DISCRIMINATION MODELS ...... 1656
1. Disparate Treatment Employment
Discrimination ............................................................. 1658
2. Disparate Impact Employment Discrimination ........ 1659
III. CHALLENGING ELEMENTS OF A DISPARATE IMPACT WAGE
DISCRIMINATION CASE ................................................................ 1660
A. STUDIES DEMONSTRATING RACIAL DISPARITY IN RESTAURANT
TIPPING ................................................................................ 1661
1. Racial Disparity in Taxi Drivers’ Tips ........................ 1661
2. Racial Disparity in Tipping at a Southern
Restaurant .................................................................... 1663
3. Racial Disparity in Tipping at a Midwestern
Restaurant .................................................................... 1665
B. PAY DISPARITY AS EMPLOYMENT DISCRIMINATION.................. 1666
1. The Equal Pay Act of 1963 ......................................... 1666
2. The Lilly Ledbetter Fair Pay Act of 2009 .................. 1669
3. Disparate Impact Under Title VII .............................. 1671
C. EMPLOYMENT PRACTICES ...................................................... 1672
IV. ANALYZING A TITLE VII CLAIM FOR RESTAURANT WORKERS ...... 1675
A. AVAILABILITY OF TITLE VII FOR TIPPING WAGE
DISCRIMINATION ................................................................... 1675
B. REASONABLE ALTERNATIVE PRACTICES .................................. 1677
V. CONCLUSION .............................................................................. 1679
I. INTRODUCTION
Title VII of the Civil Rights Act of 1964 provides protections against
workplace discrimination based on five protected statuses, one of which is
race.1 Throughout its history, the Supreme Court has seen fit to expand the
protections of the Civil Rights Act in some areas and restrict it in others. When
Congress determined that Court decisions were too restrictive, it passed the
Civil Rights Act of 1991 to codify positive aspects of previous decisions.2
1. Civil Rights Act of 1964, Pub. L. No. 88–352, § 703, 78 Stat. 241.
2. Civil Rights Act of 1991, Pub. L. No. 102–166, § 2, 105 Stat. 1071.

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