Experimental Evidence that Retaliation Claims Are Unlike Other Employment Discrimination Claims

The type of discrimination claim that strikes fear in the hearts of all employers is the dreaded retaliation claim. While employers contend, and plaintiffs admit, that retaliation is different from other discrimination complaints, employee advocates have put forth legislation that would equalize retaliation with the other types of discrimination. This bill, Protecting Older Workers against Discrimination Act (POWADA), would expand the so-called mixed-motive jury instruction to age, and disability, as well as retaliation. Moreover, it would allow plaintiffs, not judges, to decide which types of instruction the jury would receive. In this article, the authors argue that retaliation claims should not receive the same treatment as other discrimination claims (including age and disability), because it’s easy for juries to believe that retaliation is a factor, regardless of other facts. Once a fact-finding jury checks the box to indicate that an employer’s motive might include retaliation, the employer will likely have to pay fees and costs, at minimum, regardless of the claim’s final resolution.

Black-White Wage Gap Among Restaurant Servers: A Replication, Extension, and Exploration of Consumer Racial Discrimination in Tipping

There is a rich history of social science research centering on racial inequalities that continue to be observed across various markets (e.g., labor, housing, and credit markets) and social milieus. Existing research on racial discrimination in consumer markets, however, is relatively scarce and that which has been done has disproportionately focused on consumers as the victims of race-based mistreatment. As such, we know relatively little about how consumers contribute to inequalities in their roles as perpetrators of racial discrimination. In response, in this paper we elaborate on a line of research that is only in its’ infancy stages of development and yet is ripe with opportunities to advance the literature on consumer racial discrimination and racial earnings inequities among tip dependent employees in the United States. Specifically, we analyze data derived from a large exit survey of restaurant consumers (n=378) in an attempt to replicate, extend, and further explore the recently documented effect of service providers’ race on restaurant consumers’ tipping decisions. Our results indicate that both White and Black restaurant customers discriminate against Black servers by tipping them less than their White coworkers. Importantly, we find no evidence that this Black tip penalty is the result of interracial differences in service skills possessed by Black and White servers. We conclude by delineating directions for future research in this neglected but salient area study.