I intend for my legal scholarship and my engagement outside of the legal academy to continue to feed each other in perpetuity.
Professor Ryan Nelson
South Texas College of Law Houston
Professor Ryan Nelson of South Texas College of Law Houston is aiding One Fair Wage in their lawsuit against Darden Restaurants and putting his legal scholarship and strategy to the test. Professor Nelson’s law review article, Substantive Pay Equality: Tips, Commissions, and How to Remedy the Pay Disparities They Inflict, draws on empirical evidence. Professor Nelson argues that tipping and commission schemes comprise a prima facie case of disparate impact and employers are likely unable to prove that such practices and business necessities.
Professor Nelson connected with the president of One Fair Wage, a national non-profit seeking to end subminimum wage, and they decided to give the theory a try. The result has been a years-long partnership as he explains, “The ongoing collaboration between the two, along with Gerstein Harrow LLP and the National Legal Advocacy Network, resulted in pro bono litigation on behalf of One Fair Wage against the nation’s largest full-service restaurant operator, Darden Restaurants, Inc.” Professor Nelson originally imagined a suit brought by affected workers, but through the partnership he learned that “the restaurant industry is … infected with mandatory, pre-dispute, individual arbitration agreements,” meaning “class-wide relief [for employees] was a fantasy.” This led to another novel idea: bringing suit on behalf of One Fair Wage. According to Professor Nelson, “Title VII’s broad right of action could provide an alternative avenue for relief for entities like One Fair Wage who never signed any arbitration agreement, and therefore, could not be compelled into individual arbitration.”
The lawsuit has since run into a procedural challenge: whether One Fair Wage, as a non-employee, has standing to bring Title VII claims against Darden. Professor Nelson contends that it does because Title VII permits suits by any “person claiming to be aggrieved” by workplace discrimination, with the term of art “person” defined to include entities like non-profit organizations. His law review article, An Employment Discrimination Class Action by Any Other Name develops this idea.
For law professors looking to delve into real-world issues beyond the classroom, Professor Nelson shares two pieces of advice. First, “recognize that engagement with grassroots organizers and litigators on the ground is an iterative process, not a one-off project.” Second, “expect to walk a fine line switching between the legal scholar who strives to give an honest, dispassionate assessment of the doctrine and the outside advocate who strives to shade that doctrine … to achieve zealous representation of a client. Law professors ought to be vigilant of the potential need to withdraw from certain outside engagements or focus on alternative scholarship projects until they have fulfilled their outside responsibilities.” It is a balance that Professor Nelson seems to be mastering.