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

By Kline, Jacob | Iowa Law Review, May 2016 | Go to article overview

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


Kline, Jacob, Iowa Law Review


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 Currently, a Title VII plaintiff can bring a claim under a disparate treatment theory-alleging discriminatory intent, or a disparate impact theory- alleging that a facially neutral practice has a discriminatory outcome.3

In a Title VII disparate impact case, the plaintiff-employee must demonstrate that an employment practice creates a discriminatory impact.4 Then, the burden of proof shifts to the defendant-employer to demonstrate that the employment practice is job related and consistent with business necessity.5 Finally, the burden shifts back to the plaintiff to prove that there is a reasonable and less discriminatory alternative practice that the defendant refuses to adopt.6

In order to bring a Title VII disparate impact case challenging race-based discrimination in restaurant tipping, a plaintiff must overcome a number of hurdles. One issue is that a plaintiff must get a court to recognize that she can bring a disparate impact claim to challenge wage discrimination.7 Additionally, a plaintiff must overcome the difficulties stemming from the fact that Title VII does not clearly define employment practices. Finally, a plaintiff must convince the court that they have sufficient statistics to establish a viable disparate impact claim under Title VII.

This Note argues that paying servers the tipping minimum wage and relying on tips to make up the majority of their compensation is illegal workplace wage discrimination under a Title VII disparate impact analysis because there is a racial disparity in the amount white and nonwhite servers receive in tips. Part II summarizes the history of Title VII employment discrimination law from the passage of the Civil Rights Act of 1964 through today, including the two models under which a case can be brought. Part III begins with an analysis of the studies that demonstrate the existence of racial disparity in tipped worker income. Part III concludes by addressing a number of potential difficulties with bringing such a discrimination case, including the availability of a disparate impact theory for wage discrimination and issues with defining an employment practice. Part IV examines the challenges restaurant employees face in bringing a disparate impact claim and proposes three alternative practices to the current tipping model that would eliminate the discrimination: pooling tips, using a fixed percentage gratuity, and eliminating tipping altogether.

II. HISTORY OF TITLE VII EMPLOYMENT DISCRIMINATION

Title VII of the Civil Rights Act of 1964 ("1964 Act") established a federal law banning employment discrimination.8 Following developments in case law that curtailed the scope of Title VII, Congress enacted the Civil Rights Act of 1991 ("1991 Act") to amend the 1964 Act, codifying some of the case law addressing Title VII while overriding some court interpretations.9 Title VII establishes two methods by which an individual can prosecute a discrimination claim: (1) disparate treatment, where employees or job applicants are treated differently because of a protected status; and (2) disparate impact, where a facially neutral practice produces an unintended discriminatory result.10

A. THE CIVIL RIGHTS ACT OF 1964

In 1964, Congress passed the Civil Rights Act of 1964, a wide-reaching law that addressed a variety of areas of society with a history of discrimination, including voting rights, public accommodation, and public education.11 Congress enacted Title VII of the 1964 Act to address discrimination in various employment contexts. …

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