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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
Lu-in Wang'
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
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.
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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