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21 Va. J. Soc. Pol'y & L. 101 (2014)
At the Tipping Point: Race and Gender Discrimination in a Common Economic Transaction

handle is hein.journals/vajsplw21 and id is 105 raw text is: AT THE TIPPING POINT: RACE AND GENDER DISCRIMINATION IN A COMMON ECONOMIC TRANSACTION Lu-in Wang' ABSTRACT This Article examines the ubiquitous, multibillion-dollar practice of tipping as a vehicle for race and gender discrimination and as a case study of the role that organizations play in producing and promoting unequal treatment. The unique structure of tipped service encounters provides opportunities and incentives for both customers and servers to discriminate against one another However, neither customers nor servers are likely to find legal redress for the kinds ofdiscrimination that are most likely to occur in tipped service transactions because many of the same features of the transaction that promote discrimination also stand in the way of legal accountability for the discrimination that results. Moreover while tipped service transactions directly involve just the customer and server they take place within an organizational framework that is created by a third party-the firm that sells to the customer and employs the server That framework facilitates discriminatory bias in the decisions of customers and servers and encourages the firm to make decisions that reinforce the discriminatory dynamics of the service encounter Further, the triangular structure of the relationship among firm, customer, and server obscures the firm ' role in producing discriminatory outcomes and protects the firm against liability. Close examination of discrimination in tipped service encounters reveals the importance of supporting a newer, structural approach to antidiscrimination law that looks beyond individual decision making. CONTENTS Abstract................................ ...............101 I. Introduction ...............................................102 II. The Point of Tipping: Why Pay Extra......................108 III. Transaction Within a Transaction: The Microcosmic Relationship Between Tipper and Tippee ............. 115 Professor of Law, University of New Mexico School of Law. Many thanks to colleagues and friends who read and provided helpful comments on earlier drafts, especially Debbie Brake, Martha Chamallas, Mary Crossley, and Dave Herring, and to Stephanie Wildman for inviting me to present a part of this work at a Santa Clara University Gender & Law Conference. I also thank colleagues and students at my former academic home, the University of Pittsburgh School of Law, for generous support, including a Dean's Scholarship; excellent research assistance from Marc Silverman, Linda Tashbook, Michele Kristakis, Brandon Gatto, and Carly LaBuff; and the technological wizardry of the Document Technology Center.

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