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40 Yale L. & Pol'y Rev. 149 (2021-2022)
Substantive Pay Equality: Tips, Commissions, and How to Remedy the Pay Disparities They Inflict

handle is hein.journals/yalpr40 and id is 165 raw text is: YALE LAW & POLICY REVIEW Substantive Pay Equality: Tips, Commissions, and How to Remedy the Pay Disparities They Inflict Ryan H. Nelson * Empirical evidence shows that people of color tend to earn less in tips than their white coworkers, and people of color and women tend to earn less in commissions than their white, male coworkers. Moreover, a growing corpus of social science research suggests that neither tipping nor commissions are strict business necessities. Yet, scholars, courts, and practitioners have yet to recognize a disparate impact cause of action under Title VII of the Civil Rights Act of1964 alleging that tipping and commissions cause employees to receive less pay because of race or sex and cannot be justified as job-related and consistent with business necessity. This Article explores legal strategies for combatting the pay disparities wrought by tips and commissions. Foremost, it explains why most tipping and commission schemes evidence a prima facie case of disparate impact and why many employers would be unable to prove that such schemes constitute business necessities. Subsequently, it assesses non-litigation alternatives to attacking such pay disparities, including a reconceptualization of Ricci v. DeStefano-an 'opinion regarded in much employment discrimination scholarship as a material roadblock to substantive workplace equality-as * Ryan H. Nelson is an Assistant Professor of Law at South Texas College of Law Houston. He would like to thank Ian Ayers, Deanna Barmakian, Elizabeth Bartholet, Jane Bestor, Sharon Block, Zachery W. Brewster, Dallan F. Flake, Janet Halley, Saru Jayaraman, Leanna Katz, Michael Lynn, Regina Larrea Maccise, John List, Ann C. McGinley, Nicole Buonocore Porter, Michael Pollack, Alexander A. Reinert, Christine Riggle, Benjamin I. Sachs, Tony Simons, Edward Stein, Stewart E. Sterk, Michael C. Sturman, Lu-in Wang, Matthew Wansley, and all of the participants at the 2018 Colloquium on Scholarship in Employment and Labor Law for their insightful comments. He would also like to thank M. Broderick Johnson, Nketiah Berko, Natalie Kirchhoff, Areeb Siddiqui, Hannah Vester, Lulu Zhang, and the rest of the Yale Law & Policy Review team for their excellent feedback. 149

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