101 Iowa L. Rev. 1651 (2016)

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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.