Wednesday, September 1, 2021
Military spouses’ unspoken oath to America? Giving up careers that require them to stay put.
Military spouses, more than 90 percent of whom are women, often put their careers on the back burner because of their unspoken oath to America. Even before the pandemic, estimates put the unemployment rate of military spouses between three and six times the national rate.
But bills introduced in Congress by Rep. Mike Garcia (R-Calif.) and Sen. Mike Lee (R-Utah) would help ease that burden by allowing licenses issued by one state to be considered valid in the state to which the spouse or service member has been relocated on military orders. The House version, which has 25 co-sponsors, has been referred to a subcommittee within the Committee on Veterans’ Affairs. If passed, the bill would impact all professional licenses, including those required to be a real estate agent, teacher and nurse.
Most states have some flexibility for military spouses who need to transfer professional licenses, experts say, but it’s a patchwork of various levels of exemptions for each industry. The Department of Defense has been working on the issue since 2011, and 26 states have agreed to at least issuing a license to a military spouse within 30 days with little upfront paperwork, according to Marcus Beauregard, director of the Defense-State Liaison Office.
A congressional bill would create uniformity, advocates say.
September 1, 2021 in Business, Legislation, Women lawyers, Work/life | Permalink
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Wednesday, August 25, 2021
Stephanie Bornstein, Disclosing Discrimination, 101 Boston U. L. Rev. 287 (2021)
In the United States, enforcement of laws prohibiting workplace discrimination rests almost entirely on the shoulders of employee victims, who must first file charges with a government agency and then pursue litigation themselves. While the law forbids retaliation against employees who complain, this does little to prevent it, in part because employees are also responsible for initiating any claims of retaliation they experience as a result of their original discrimination claims. The burden on employees to complain—and their justified fear of retaliation if they do so—results in underenforcement of the law and a failure to spot and redress underlying structural causes of race and sex discrimination at work. By statutory design, government enforcement agencies play a crucial but limited role in litigating discrimination lawsuits, which makes significant expansion of the agencies’ roles politically infeasible.
This Article considers compelled disclosure of employer information as a means of better enforcing antidiscrimination law. Information-forcing mechanisms have long been a part of securities law. The recent #MeToo and Time’s Up social movements have brought the power of public exposure to the issues of sexual harassment and pay discrimination at work. Drawing on lessons from both contexts, this Article argues for imposing affirmative public disclosure requirements on employers that track the pay, promotion, and harassment of employees by their sex and race. It documents emerging disclosure models in some state and international laws meant to target workplace discrimination and highlights where existing U.S. federal law opens the door to such an approach. It also considers counterarguments raised by compelled disclosure, including privacy and free speech concerns. Requiring public disclosures on equality measures is an incremental yet important untapped mechanism that can shift some of the enforcement burden for U.S. antidiscrimination law off of employees and onto employers and responsible government agencies.
August 25, 2021 in Business, Equal Employment, Workplace | Permalink
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Tuesday, August 24, 2021
Institutional Embeddedness of Mumpreneurship in the UK: A Career Narrative Approach
By: Shandana Sheikh and Shumaila Y. Yousafzai
Published on SSRN
The recent rise in the number of mothers who have started a business from home along with an increase in publicly available profiles of these women has led to the trend of mumpreneurship, i.e., women who set up and manage a business around their child caring role. This research employs a career narrative approach to examine the stories told by a group of 12 British mumpreneurs within the context of UK’s regulatory institutions. The findings suggest that despite having dual responsibility of motherhood and business ownership, mumpreneurs work hard to achieve their aspirations and career objectives. However, their ability to do so is severely constrained by the institutional support, more specifically in terms of child-care provisions and training and financial support.
This study employs a career narrative approach to examine the stories told by a group of 12 mumpreneurs within the context of UK’s regulatory institutional context, specifically the family policies framework. In the UK, while there are current family policies such as childcare benefits, tax credits, maternity leaves and parental allowances, the impact of these policies on mumpreneurship has not been studied. Our objective is to explore how mumpreneurs construct their experiences of moving into entrepreneurship and how regulatory family policies support or constrain them in simultaneously balancing their dual responsibility of business ownership and motherhood.
August 24, 2021 in Business, Family, Gender, Work/life | Permalink
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Monday, August 16, 2021
The Securities and Exchange Commission approved on August 6 a regulation proposed by NASDAQ requiring board diversity for all companies listed on the exchange and offering complimentary board recruiting services to help companies achieve these metrics.
Under the Board Diversity Proposal, the Exchange proposes to require each Nasdaq listed company, subject to certain exceptions, to publicly disclose in an aggregated form, to the extent permitted by applicable law, information on the voluntary self-identified gender and racial characteristics and LGBTQ+ status (all terms defined below) of the company’s board of directors. The Exchange also proposes to require each Nasdaq-listed company, subject to certain exceptions, to have, or explain why it does not have, at least two members of its board of directors who are Diverse, including at least one director who self-identifies as female and at least one director who self-identifies as an Underrepresented Minority or LGBTQ+. Under the Board Recruiting Service Proposal, the Exchange proposes to provide certain Nasdaq-listed companies with one year of complimentary access for two users to a board recruiting service, which would provide access to a network of board-ready diverse candidates for companies to identify and evaluate.
The SEC's approval includes extensive consideration of arguments in support of and in opposition to the new regulation. It also surveys competing literature on the effectiveness of such requirements.
August 16, 2021 in Business | Permalink
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Tuesday, August 10, 2021
We welcome Dean Brenda Bauges to our Editor Team here at the Gender & the Law Prof Blog.
Brenda Bauges, Associate Dean for Student Affairs and Inclusion, University of Idaho
Brenda Bauges graduated summa cum laude from both College of Idaho and University of Idaho College of Law. Professor Bauges began her career as a law clerk for the Honorable Karen Lansing of the Idaho Court of Appeals. She then joined Holland and Hart, LLP as a general litigation associate before spending six years in public service as a Deputy Attorney General and a Boise City Assistant Attorney. Professor Bauges spent a short time at a small law firm specializing in employment law before joining Concordia University School of Law as an assistant professor and Director of Externships and Pro Bono Programs, where she worked for two years. Professor Bauges has served on the governing boards of the Idaho Legal History Society, Idaho Women Lawyers, Attorneys for Civic Education, the Fourth District Pro Bono Committee, and St. Mark’s Home and School Association. In 2016, she earned distinction with the Idaho Business Review’s “Accomplished Under 40” award. She and her family are avid whitewater rafters and spend most of their summers enjoying Idaho’s wild and scenic rivers.
August 10, 2021 in Business, Law schools, Women lawyers | Permalink
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Wednesday, August 4, 2021
Natasha Bhatia, Sarah Moshary & Anna Tuchman, Investigating the Pink Tax: Evidence Against a Systematic Price Premium for Women in CPG
The pink tax refers to an alleged empirical regularity: that products targeted toward women are more expensive than similar products targeted toward men. This paper leverages a national dataset of grocery, convenience, and mass merchandiser sales, in combination with novel sources on product gender targeting, to provide systematic evidence on price disparities for personal care products targeted at different genders. The results are mixed: while women’s deodorant products are indeed more expensive, on the order of 6%, women’s disposable razors are about 8% less expensive. We then investigate potential drivers of differential pricing with a focus on deodorants. Analysis of wholesale prices indicates that differences in costs cannot fully explain the differences in deodorant retail prices that we document. Rather, our findings suggest that demand for women’s deodorant products is relatively inelastic. We also find a higher share of category TV advertising features women’s products. Finally, we consider the potential welfare effects of price parity regulations.
August 4, 2021 in Business, Pop Culture | Permalink
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Thursday, July 29, 2021
Jenna Sapiano, The Boundaries of Peace: A Feminist Analysis of International Mediation Processes
Griffith Law Review, Forthcoming
The assumption that peace mediation is gender-neutral reproduces and reinforces the already gendered aftermath(s) of war. Peace mediation is a multilayered conflict resolution mechanism that ranges from grassroots peacebuilding to high-level diplomacy. As a ‘language of peace’, international law has become foundational in high-level peace mediation processes and institutions. International legal feminist and queer theory are critical of international law for its gendered and heteronormative frameworks that reinforce the binaries of war/peace, masculine/feminine or heterosexual/homosexual. Global governance gender law reforms, such as the Women, Peace and Security agenda, are part of the institutional frameworks that guide peace mediation processes. High-level peace mediators are also members of an ‘epistemic community’ regulated by international and regional organizations. The article analyses how masculine and heteronormative international legal institutions and experts shape peace mediation’s already gendered processes and outcomes. The article concludes that contemporary peace mediation approaches must be rethought and that alternatives to the traditional peace table must be imagined.
July 29, 2021 in Business, Courts, International, Theory | Permalink
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Kimberly Houser & Jamillah Bowman Williams, Board Gender Diversity: A Path to Achieving Substantive Equality in the U.S., 63 William & Mary L. Rev. (forthcoming)
While the United States made history this year with Kamala Harris becoming the first woman, Black, and Asian Vice President, the country overall has been rapidly losing its status as a global power founded on democratic principles. This is in part due to the leadership’s active involvement in reducing the rights of women, Black people, and other marginalized groups. We use gender diversity on corporate boards as a comparative example, to examine the legal frameworks designed to promote equality in the EU and U.S.
While the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States (U.S.) was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the U.S. from making inroads into positions of power. While legislated board gender diversity mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards with little progress. On September 30, 2018, however, California enacted a law that has stirred much controversy for requiring at least one woman to be on the boards of corporations headquartered in the state by 2020. Based on our analysis, the CA bill and other similar legislative efforts will fail without parallel constitutional action and cultural change in the United States.
We begin by examining the individual, institutional, and cultural reasons why the U.S. lags so far behind the rest of the industrialized world. We then discuss recent activism by powerful institutions such as NASDAQ and Goldman Sachs that may be signs of broader cultural change and receptiveness to positive action. Next, we conduct an analysis of the legislative, cultural, and constitutional factors that have helped the EU succeed in increasing board diversity. We conclude by offering a normative solution that can pave the way to achieving gender equality in the United States. Learning from the EU model, the U.S. must let go of the Equal Rights Amendment and adopt a Substantive Equality Amendment to the Constitution requiring positive action to facilitate laws enabling gender equality. This solution will have broad cultural impact outside of the board context and will help change the lived experiences and outcomes for women in the United Stated for generations to come. It will change the course of history.
July 29, 2021 in Business, International, Theory | Permalink
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Tuesday, July 27, 2021
Ann Lipton, Capital Discrimination, Houston L.Rev. (forthcoming)
The law of business associations does not recognize gender. The rights and responsibilities imposed by states on business owners, directors, and officers do not vary based on whether the actors are male or female, and there is no explicit recognition of the influence of gender in the doctrine.
Sex and gender nonetheless may pervade business disputes. One co-owner may harass another co-owner; women equity holders may be forced out of the company; men may refuse to pay dividends to women shareholders.
In some contexts, courts do recognize and account for these dynamics, such as when married co-owners file for divorce. But business law itself has no vocabulary to engage the influence of sex and gender, or to correct for unfairness traceable to discrimination. Instead, these types of disputes are resolved using the generic language of fiduciary duty and business judgment, with the issue of discrimination left, at best, as subtext. The failure of business law doctrine to confront how gender influences decisionmaking has broad implications for everything from the allocation of capital throughout the financing ecosystem to the lessons that young lawyers are taught regarding how to counsel their clients.
This Article will explore how courts address – or fail to address – the problem of discrimination against women as owners and investors. Ultimately, the Article proposes new mechanisms, both via statute and through a reconceptualization of fiduciary duty, that would allow courts to recognize, and account for, gender-based oppression in business.
July 27, 2021 in Business, Courts, Equal Employment, Workplace | Permalink
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Friday, May 28, 2021
Faith Stevelman, "Feminism, Pedagogy and Francis v. United Jersey Bank"
Corporate law pedagogy is at an inflection point where topics, such as equality and inclusion, can no longer be ignored. For four decades, Francis v. United Jersey Bank has been a seminal case in the introductory business law course, while professors have largely ignored its sexist assumptions and misuse of liberal feminist tropes. Taught as an exemplary introduction to the duty of care, or duty of oversight, the case is actually infirm on the law and also the facts, as a reading of the citations and historical inquiry from accounts of the firm's bankruptcy in the press reveals. The case's real lesson is about what we do and do not discuss and do with texts in the casebooks, and conversations in the business law classroom, since Lillian Pritchard (the defendant), has been used as the "poster child" of fiduciary laziness and incompetence—sending a terrible message about women in corporate governance.
May 28, 2021 in Business, Theory | Permalink
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Wednesday, May 12, 2021
Craig Westergard, Questioning the Sacrosanct: How to Reduce Discrimination and Inefficiency in Veterans' Preference Law, 19 Seattle Journal for Social Justice 39 (2020)
Veterans’ preference law grants military veterans decisive advantages when applying for government positions. While rewarding veterans and assisting their transition back to civilian life may be worthy goals, veterans’ preference has at least two major defects. First, veterans’ preference disparately affects women, LGBT persons, disabled persons, and others because of the military’s traditional exclusion of these groups. Second, veterans’ preference unnecessarily reduces the quality of the federal workforce because it prioritizes military service over merit and competition. Potential statutory and constitutional solutions have been precluded by the courts, and so these problems persist. This Note recommends that Congress modify veterans’ preference by imposing limitations on its duration and usage; in the alternative, it suggests other ways in which veterans’ preference law might be improved.
May 12, 2021 in Business, Equal Employment, LGBT, Workplace | Permalink
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Monday, April 12, 2021
Sarah Haan, Corporate Governance and the Feminization of Capital
Between 1900 and 1956, women increased from a small proportion of public company stockholders in the U.S. to the majority. In fact, by the 1929 stock market crash, women stockholders outnumbered men at some of America’s largest and most influential public companies, including AT&T, General Electric, and the Pennsylvania Railroad. This Article makes an original contribution to corporate law, business history, women’s history, socio-economics, and the study of capitalism by synthesizing information from a range of historical sources to reveal a forgotten and overlooked narrative of history, the feminization of capital—the transformation of American public company stockholders from majority-male to majority-female in the first half of the twentieth century, before the rise of institutional investing obscured the gender politics of corporate control.
Corporate law scholarship has never before acknowledged that the early decades of the twentieth century, a transformational era in corporate law and theory, coincided with a major change in the gender of the stockholder class. Scholars have not considered the possibility that the sex of common stockholders, which was being tracked internally at companies, disclosed in annual reports, and publicly reported in the financial press, might have influenced business leaders’ views about corporate organization and governance. This Article considers the implications of this history for some of the most important ideas in corporate law theory, including the “separation of ownership and control,” shareholder “passivity,” stakeholderism, and board representation. It argues that early-twentieth-century gender politics helped shape foundational ideas of corporate governance theory, especially ideas concerning the role of shareholders. Outlining a research agenda where history intersects with corporate law’s most vital present-day problems, the Article lays out the evidence and invites the corporate law discipline to begin a conversation about gender, power, and the evolution of corporate law.
April 12, 2021 in Business, Legal History, Theory | Permalink
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Friday, December 4, 2020
Jessica Lai, Patents and Gender: A Contextual Analysis, 10(3) Queen Mary Journal of Intellectual Property 283-305 (2020)
Patent law is considered to be an objective law, dealing with the objective subject matter of the “technical arts”. Yet, empirical studies show that patenting rates around the world are gendered. This article analyses the roots of the gender patent gap, and how this correlates to the invention and innovation processes. It shows that the gendered nature of the patent-regulated knowledge governance system forces women into traditionally male spaces and fields in order to partake in the extant patent game. Yet, when they enter those spaces and fields, they often find themselves unwelcome and subject to institutional, structural or organisational biases, which impinge upon their ability to invent, patent and commercialise.
The article re-frames the discourse around women inventors. It argues that we have to stop focusing on the “women in science, technology engineering and mathematics (STEM)” narrative, because it is a distraction from the underlying problem that the Western knowledge governance system reflects the hegemonic powers at play. Instead, we need to re-think the knowledge governance system and the ecosystem it creates, in order to ensure egalitarian knowledge production and protection.
December 4, 2020 in Business, Gender, Science | Permalink
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Monday, November 23, 2020
Darren Rosenblum, Diversity and the Board of Directors: A Comparative Perspective"
Draft Chapter for Elgar's Research Handbook on Comparative Corporate Governance (Afsharipour & Gelter, eds.), Forthcoming
Upon Norway’s adoption of its corporate board quota, nobody would have predicted that, within fifteen years, most of the top ten economies would follow suit. When Norway adopted its corporate board quota in 2003, it took a clear, new direction for corporate governance and for equality law. In so doing, it recognized two things: 1) the central role that the private sector plays in determining questions of equality, and 2) the responsibility of the state to ensure that the private sector would rectify entrenched discrimination. These statutes effectively feminized boards across Europe and elsewhere. This Chapter maps the divergent directions these quota efforts have taken, in both civil and common law jurisdictions. Contrasts among these efforts reveal distinct frameworks for inclusion. As social science makes sense of the efficacy of these efforts, this Chapter suggests directions that future inclusion efforts may take.
November 23, 2020 in Business, Gender, Workplace | Permalink
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Friday, October 16, 2020
Amelia Miazad, Sex, Power, and Corporate Governance, 54 U.C. Davis L. Rev. (2020)
For decades, social scientists have warned us that sexual harassment training and compliance programs are ineffective. To mitigate the risk of sexual harassment, they insist that we must cure its root cause — power imbalances between men and women.
Gender-based power imbalances pervade our corporate governance and plague start-ups and billion-dollar companies across sectors and industries. These power imbalances start at the top, with the composition of the board and the identity of CEOs and executive management. Pay inequity and boilerplate contractual terms in employment contracts further cement these imbalances.
In response to the #MeToo movement, key stakeholders are shifting their focus from compliance to corporate culture for the first time. This influential group of stakeholders, which includes investors, employees, regulators, D&O insurance carriers, and board advisors, are asking companies to uproot gender-based power imbalances. As a result of mounting pressure, seismic corporate governance reforms are underway. Boards are becoming more gender diverse, companies are beginning to address pay inequity and abandon mandatory arbitration and non-disclosure agreements, and boards are holding CEOs to account for sexual harassment and misconduct.
While the “old boys’ club” is still thriving in corporate America, this Article is the first comprehensive account of how the power imbalances on which it depends are shifting.
October 16, 2020 in Business, Equal Employment, Gender, Workplace | Permalink
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Tuesday, September 29, 2020
Shiu-Yik Au, Andreanne Tremblay & Leyuan You, "Times Up: Does Female Leadership Reduce Workplace Sexual Harassment?"
We examine the role of female leadership in reducing the incidence of workplace sexual harassment. We estimate the incidence rate of sexual harassment through textual analysis of employees’ job reviews, published online during the period 2011-2017. We find that firms with a higher proportion of women on the board of directors experience less sexual harassment. An increase of one female director is associated with an 18.2% decrease in the sexual harassment rate. The effect is both statistically and economically significant and is not limited to female directors as we find similar results with female CEO and executives. The mechanism for reduced sexual harassment is linked to overall improved social policies. Our results are robust to several adjustments for endogeneity concerns.
September 29, 2020 in Business, Equal Employment, Workplace | Permalink
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Tuesday, September 15, 2020
Walmart Legal Saga to Become Netflix Show Starring Amy Adams
A legal fight against Walmart Inc. that became the largest employment class-action lawsuit in history will become a series at Netflix Inc. from actress Amy Adams and “The Big Short” director Adam McKay.
“Kings of America” will follow three women involved in the lawsuit, which went to the Supreme Court in 2011: a Walmart heiress, an executive and a saleswoman at the retail chain. Adams stars as one of the women, and McKay will direct the first episode of the series.
The case involved female employees suing Walmart for alleged gender discrimination -- including pay disparities and favoring male workers -- on behalf of potentially more than a million employees. That made it the largest lawsuit of its kind. Walmart is the biggest private employer in the U.S. and the world’s largest company based on revenue.
With billions of dollars at stake for Walmart, the Supreme Court blocked the suit from proceeding as a class action in a 5-4 vote in June 2011. The late Justice Antonin Scalia argued there was no “convincing proof of a companywide discriminatory pay and promotion policy.”
September 15, 2020 in Business, Courts, Equal Employment, Media, Pop Culture | Permalink
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Wednesday, July 8, 2020
Douglas Branson, Gender Diversity, Diversity Fatigue, and Shifting the Focus, 87 Geo. Wash. U. L. Rev. 1061 (2019)
The women’s movement has been with us for approximately 50 years. Women are airline pilots, police officers, engineers, fire fighters, physicians, and veterinarians. By contrast, the progress to corporate senior executive positions has been paltry, in fits and starts, at best in baby steps. Ascendant males would tell you that women have made no business case for increasing the number of female executives. In response, this Article contends that the focus, exclusively upon women themselves, is all wrong. The focus should be on corporations themselves, the employers, and not exclusively on aspiring women. Beyond lip service, corporations have done little, throwing a few dollars at STEM programs that may lead to a first or second position, but not to leadership roles. Information technology empirical studies show that of the measly 4.8% of executive positions women hold, only two are held by women with STEM degrees. All of the remaining 25 female executives have law or business degrees with MBAs predominating. The tech industry attempts to crowd out women completely, by hiring males from foreign countries who enter the United States with H1-B visas that allow them to stay for six years and often permanently. It is high time for corporations themselves to undertake concrete steps of the nature with which this Article concludes.
See also Douglas Branson, The Future of Tech is Female (2018)
The Future of Tech is Female considers the paradoxes involved in women’s ascent to leadership roles, suggesting industry-wide solutions to combat gender inequality. Drawing upon 15 years of experience in the field, Douglas M. Branson traces the history of women in the information technology industry in order to identify solutions for the issues facing women today. Branson explores a variety of solutions such as mandatory quota laws for female employment, pledge programs, and limitations on the H1-B VISA program, and grapples with the challenges facing women in IT from a range of perspectives.
Branson unpacks the plethora of reasons women should hold leadership roles, both in and out of this industry, concluding with a call to reform attitudes toward women in one particular IT branch, the video and computer gaming field, a gateway to many STEM futures. An invaluable resource for anyone invested in gender equality in corporate governance, The Future of Tech is Female lays out the first steps toward a more diverse future for women in tech leadership
July 8, 2020 in Books, Business, Technology, Workplace | Permalink
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Monday, July 6, 2020
Caroline Criedo Perez, Invisible Women: Data Bias in a World Designed for Men
Data is fundamental to the modern world. From economic development, to healthcare, to education and public policy, we rely on numbers to allocate resources and make crucial decisions. But because so much data fails to take into account gender, because it treats men as the default and women as atypical, bias and discrimination are baked into our systems. And women pay tremendous costs for this bias, in time, money, and often with their lives.
Celebrated feminist advocate Caroline Criado Perez investigates the shocking root cause of gender inequality and research in Invisible Women, diving into women’s lives at home, the workplace, the public square, the doctor’s office, and more. Built on hundreds of studies in the US, the UK, and around the world, and written with energy, wit, and sparkling intelligence, this is a groundbreaking, unforgettable exposé that will change the way you look at the world.
Imagine a world where your phone is too big for your hand, where your doctor prescribes a drug that is wrong for your body, where in a car accident you are 47% more likely to be seriously injured, where every week the countless hours of work you do are not recognised or valued. If any of this sounds familiar, chances are that you're a woman.
Invisible Women shows us how, in a world largely built for and by men, we are systematically ignoring half the population. It exposes the gender data gap – a gap in our knowledge that is at the root of perpetual, systemic discrimination against women, and that has created a pervasive but invisible bias with a profound effect on women’s lives.
Award-winning campaigner and writer Caroline Criado Perez brings together for the first time an impressive range of case studies, stories and new research from across the world that illustrate the hidden ways in which women are forgotten, and the impact this has on their health and well-being. From government policy and medical research, to technology, workplaces, urban planning and the media, Invisible Women reveals the biased data that excludes women. In making the case for change, this powerful and provocative book will make you see the world anew. (less)
July 6, 2020 in Books, Business, Gender, Healthcare, Science | Permalink
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