Gender and the Law Blog

Artificial Intelligence as a Tool for Reducing Gender Discrimination in Hiring

Elena Pisanelli, A New Turning Point for Women: Artificial Intelligence as a Tool for Reducing Gender Discrimination in Hiring 

This paper studies whether firms’ adoption of artificial intelligence (AI) has a causal effect on their probability of hiring female managers. Using panel data on the 500 largest firms, measured by revenues, in Europe and the US, and a two-stage difference- in-differences I find that firms’ use of AI causes, on average, an increase by 3.5% in the hiring of female managers. Exploiting heterogeneity across different types of AI I find that my result is driven by the use of assessment software, rather than that of predictive algorithms. The use of assessment software increases the share of female managers hired by companies and correlates with a reduction in firms being sued for gender discrimination in hiring. Conversely, my findings show that predictive algorithms do not affect gender inequality in managerial hires.

Research on Gender Stereotypes as to Moral and Legal Culpability for Deception

Gregory Klass & Tess Wilkinson-Ryan, Gender and Deception: Moral Perceptions and Legal Responses, Northwestern University Law Review, Forthcoming

Decades of social science research has shown that the identity of criminal defendants and alleged victims often affects case outcomes. Parties’ race, gender, class, and age affect decisions of prosecutors, judges, juries, and other actors in the criminal system. Less studied has been how identity might affect other forms of legal regulation. This essay begins to explore how parties’ gender might figure into legal decisionmakers’ responses to deceptive behavior. More specifically, we explore the hypothesis that ordinary people tend to perceive deception of women as more wrongful than deception of men, and that such perceptions can affect both case outcomes and decisions to regulate.

The hypothesis is consistent with research into gender stereotypes, which has shown for example that women are perceived as less capable of protecting themselves against deception and that men have special duties to protect women. The hypothesis is also of a piece with recent work on moral typecasting, which explores how attributions of agency and patiency affect perceptions of moral wrongfulness, as there is evidence that men tend to be associated with agency and women with patiency.

We report the results of three studies designed to test the hypothesis. We use simple vignette experiments to elicit subjects’ off-the-cuff intuitions about men and women deceiving and being deceived. We examine the effects of gender by randomly varying party names (Ashley or Josh), by randomly varying the gender associated with a product (e.g., beard trimmer vs. hair dryer), and by randomly varying the gendered noun identifying the victims of a fraud (brothers vs. sisters). We ask subjects to report on their reactions to different deceptive situations by reporting on the ethicality of a behavior, on their support for a regulatory approach, and on their preference for level of punishment. We also explore differential responses of male- and female-identified subjects.

We find preliminary support for the proposition that men deceiving women and firms deceiving women are regarded as somewhat more problematic than men or firms deceiving men. We find suggestive but limited evidence that paternalistic regulation of women’s transactions is more welcome than that of regulation of men’s consumer choices. We find robust support for the proposition that women are more likely than men to regard deception in the marketplace as an ethical wrong, and that corporations are viewed as male. The studies reported here also suggest the challenges of studying how the gender of deceiver and deceived might affect moral and legal judgments. Subjects’ politics, for example, appear to correlate both with the effect of parties’ gender on their judgments and with subjects’ views on the appropriateness of regulation. We suggest how future research might disaggregate these effects and explore the mechanisms behind gender-driven moral and legal judgments regarding deception.

Study Shows Individual Level Traits of Vocal Masculinity Influence Corporate Executive Status for Women

John Lynch, CEOs, Masculinity, and Language" 

The lack of female CEOs and the persistent gender pay gap, especially at higher income levels, have become popular topics both in academics and society. Most studies focus on the differences between males and females that perpetuate this "glass ceiling," while few look at within-gender traits that can help mitigate its effects. In this paper, I use novel measures of CEO and CFO vocal masculinity and language complexity to gain insight into how these individual-level traits influence executive status and compensation both within and across genders. I find that vocal masculinity, within females, positively impacts their likelihood of becoming a CEO while the opposite is true for males. When it comes to communication, CEOs speak with greater complexity than CFOs while both female CEOs and CFOs use more complex language and speak longer during earnings calls than their male counterparts. Differences in CEO-CFO language complexity are greater at low entrenchment firms while differences in masculinity are greater at high entrenchment firms. Additionally, while boards with greater female representation hire more female CEOs, they surprisingly seem to place a greater emphasis on female masculinity, while male masculinity plays a larger role at firms with male-dominated boards. Finally, for both male and female CEOs, compensation is positively related to masculinity, while increased language complexity only matters for females. These results help provide insight into the determinants of CEO status and compensation and may help explain how boards view and reward perceived competency across genders.

Masterpiece Cakeshop Baker Loses Suit on Cake for Gender Transition

CPR, Colorado Baker Loses Appeal over Birthday Cake for Gender Transition

The Colorado baker who won a partial U.S. Supreme Court victory after refusing to make a gay couple’s wedding cake because of his Christian faith lost an appeal Thursday in his latest legal fight, involving his rejection of a request for a birthday cake celebrating a gender transition.

The Colorado Court of Appeals ruled that that the cake Autumn Scardina requested from Jack Phillips and Masterpiece Cakeshop, which was to be pink with blue frosting, is not a form of speech.

It also found that the state law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation does not violate business owners' right to practice or express their religion.

Relying on the findings of a Denver judge in a 2021 trial in the dispute, the appeals court said Phillips' shop initially agreed to make the cake but then refused after Scardina explained that she was going to use it to celebrate her transition from male to female.  ***

“We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” said the court, which also rejected procedural arguments from Phillips.

Phillips, who is represented by Alliance Defending Freedom, maintains that the cakes he creates are a form of speech and plans to appeal.

Death by a Thousand Cuts: The Impact of Implicit Gender Bias on Women's Career Progression

Jasmijn C. Bol & Hila Fogel-Yaari,  Death by a Thousand Cuts: The Impact of Gender Bias on Career Progression,
in Diversity, Equity, and Inclusion: Theory, practice, and case histories (Chapter 3A) (forthcoming 2023)

Progress has been made in the last century toward reducing gender bias in society at large and in the workplace specifically. The negative impact gender differentiation has on women’s careers, however, is not gone. Differential treatment and biases have moved from explicit to more implicit. These biases are rooted in decades of modeling and stereotyping women as communal and men as agentic, thereby casting women as caregivers and men as leaders. The stereotyping influences women’s professional lives by tainting both supervisors’ and employees’ decisions. The differentiation starts already in hiring decisions, which include decisions on who to hire, at what rank, and how much to pay. Once women are hired, the bias continues in task allocation and performance evaluation, which determine immediate compensation and subsequent promotions. Thus, women’s career progressions are made more complicated throughout their entire participation in the workforce. The multifaceted nature of the problem suggests that only a holistic approach can significantly reduce gender bias.

Legal Study Measures Impact of Social Structures of Old Boys Networks in Corporate Law

Afra Afsharipour & Matthew Jennejohn, "Gender and the Social Structure of Exclusion in U.S. Corporate Law" 
University of Chicago Law Review, Forthcoming

Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers choose litigation strategies, craft arguments, and present their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail.

This Article focuses upon a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are a crucial source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “Old boys’ networks.”

For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than 15,000 matters and 2,700 attorneys were collected as the basis for a massive network.

Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interacts with gender—women’s positions within the network differs by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: From working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.

The Article’s findings set the stage for subsequent research to test the connection between gender representation in litigation networks and discrete outcomes, such as the incidence of bias in judicial opinions. It also demonstrates how subsequent research can incorporate network structure into quantitative and qualitative studies of not only gender bias but also other forms of inequality in law. With respect to policy, it provides the necessary first step to crafting normative interventions that improve equitable access to social resources by making networks more empirically concrete. With that added clarity, the network approach then allows us to calibrate remedial options available to bar associations, law firms, and individual attorneys, leaving no level of the institutional setting untouched.

Death by a Thousand Cuts: The Impact of Gender Bias on Career Progression

Jasmijn C. Bol & Hila Fogel-Yaari, Death by a Thousand Cuts: The Impact of Gender Bias on Career Progression

Despite focused efforts, the pay gap persists, and women are under-represented in upperlevel management and high-level government positions (Korn, Weber, and Fuller 2022; Horowitz, Igielnik, and Parker 2018). It is often suggested that the “glass ceiling,” which describes top positions being inaccessible to women, is the root cause of women not being equally represented at the highest levels. To “shatter the glass ceiling,” social and regulatory pressure is put on companies to hire women for top executive positions and the board of directors (Jamali 2020; Srinidhi, Sun, Zhang, and Chen 2020; Orbach 2017). We posit, however, that “shattering the glass ceiling” is not enough because the challenges for women start early on and are present throughout women’s career progressions. They begin at the initial application for a job and continue through the hiring decision, task allocation, and subsequent evaluation and promotion. These persistent disadvantages throughout women’s careers are referred to as “sticky floors” (Ciminelli, Schwellnus, and Stadler 2021). Moreover, not only are these challenges ongoing, but they also manifest in numerous ways. Some of these manifestations of gender differentiation would not make a big difference by themselves, but in accumulation, can have a significant impact on women’s careers (Hardy, Tey, Cyrus-Lai, Martell, Olstad, and Uhlmann 2022). We describe this impact of the ongoing and multifaceted gender differentiations as a professional “death by a thousand cuts.” In this chapter, we examine the theoretical underpinning of gender bias and discuss
the empirical evidence that shows these ongoing challenges for women.

Study Shows Women Lawyers Rarely Litigate Patent Cases

Paul Gugliuzza & Rachel Rebouche, Gender Inequality in Patent Litigation, 100 N.C. L. Rev. 1683 (2022)

This Article presents an empirical study of gender diversity—or, more accurately, the lack thereof—among the lawyers who handle patent cases in the federal courts, focusing on appellate litigation at the Federal Circuit and the Supreme Court. Drawing on two original datasets, the Article finds that, over the past decade, 87.4% of oral arguments in patent appeals at the Federal Circuit have been presented by men. The numbers are similar at the Supreme Court: over the past thirty years, more than 90% of arguments in patent cases have been delivered by male attorneys.

The typical explanation for these sorts of gender gaps is that men are disproportionality represented in the science and technology fields that underlie patent practice. But a closer look at the numbers shows that gender parity exists in specific areas of patent litigation. Until a recent retirement, half of the Federal Circuit’s twelve active judges were women, and the women on the court tend to have more pre-appointment experience in patent law than their male counterparts. In addition, the data collected for this study demonstrate that, when the government becomes involved in patent litigation (usually because a case involves the Patent and Trademark Office), women present oral argument at the Federal Circuit 48.5% of the time—more than five times as frequently as the rate for private-sector litigants.

The story this Article tells—of women being largely absent from high-level patent litigation—is actually a story about gender inequality among the lawyers hired by large corporations, particularly the Federal Circuit’s most frequent litigants, including Apple, Amazon, Google, and Samsung, all of which have been represented by women in less than 15% of their arguments over the past decade.

Figuring out why women rarely litigate patent appeals for private-sector clients is challenging, but the disparity between law firms and the government parallels inequalities in law practice more generally. To that end, this Article suggests both small steps that would increase gender balance among the lawyers arguing patent cases as well as broader structural reforms that would improve diversity across the bar.

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

On Wednesday, Congress passed bipartisan legislation, the Speak Out Act, which bans the use of nondisclosure agreements in cases of workplace sexual assault and harassment, by a vote of 315 to 109. The bill passed in the Senate in September and is now headed to the Oval Office to be signed into law.***

The Speak Out Act prohibits the use of NDAs between employers and current, former and prospective employees in cases of sexual assault and harassment. It also invalidates existing NDAs in cases that have not yet been filed. The legislation comes on the heels of the passage of a bill that banned mandatory arbitration in sexual harassment and assault cases. 

“This is a one-two punch,” Frankel said. “When you think about how many people are subjected to these agreements and how rampant sexual assault and abuse is in this country, these are two incredibly significant new laws that are going to change the culture and force corporations to protect their workers instead of trying to hide the dirty little secrets.***

Imre Szalai, a social justice professor at Loyola University New Orleans, told The 19th this summer when the bill was introduced that arbitration agreements and NDAs were developed in the United States for commercial purposes to handle business-to-business disputes in a more speedy and cost-effective manner. The federal arbitration law was first enacted in 1925, but sometime between the 1970s and 1990s, Szalai said there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships. And now, the U.S. relies on its corporate sector to resolve internal disputes more than any other country in the world. 

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

On Wednesday, Congress passed bipartisan legislation, the Speak Out Act, which bans the use of nondisclosure agreements in cases of workplace sexual assault and harassment, by a vote of 315 to 109. The bill passed in the Senate in September and is now headed to the Oval Office to be signed into law.***

The Speak Out Act prohibits the use of NDAs between employers and current, former and prospective employees in cases of sexual assault and harassment. It also invalidates existing NDAs in cases that have not yet been filed. The legislation comes on the heels of the passage of a bill that banned mandatory arbitration in sexual harassment and assault cases. 

“This is a one-two punch,” Frankel said. “When you think about how many people are subjected to these agreements and how rampant sexual assault and abuse is in this country, these are two incredibly significant new laws that are going to change the culture and force corporations to protect their workers instead of trying to hide the dirty little secrets.***

Imre Szalai, a social justice professor at Loyola University New Orleans, told The 19th this summer when the bill was introduced that arbitration agreements and NDAs were developed in the United States for commercial purposes to handle business-to-business disputes in a more speedy and cost-effective manner. The federal arbitration law was first enacted in 1925, but sometime between the 1970s and 1990s, Szalai said there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships. And now, the U.S. relies on its corporate sector to resolve internal disputes more than any other country in the world. 

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

On Wednesday, Congress passed bipartisan legislation, the Speak Out Act, which bans the use of nondisclosure agreements in cases of workplace sexual assault and harassment, by a vote of 315 to 109. The bill passed in the Senate in September and is now headed to the Oval Office to be signed into law.***

The Speak Out Act prohibits the use of NDAs between employers and current, former and prospective employees in cases of sexual assault and harassment. It also invalidates existing NDAs in cases that have not yet been filed. The legislation comes on the heels of the passage of a bill that banned mandatory arbitration in sexual harassment and assault cases. 

“This is a one-two punch,” Frankel said. “When you think about how many people are subjected to these agreements and how rampant sexual assault and abuse is in this country, these are two incredibly significant new laws that are going to change the culture and force corporations to protect their workers instead of trying to hide the dirty little secrets.***

Imre Szalai, a social justice professor at Loyola University New Orleans, told The 19th this summer when the bill was introduced that arbitration agreements and NDAs were developed in the United States for commercial purposes to handle business-to-business disputes in a more speedy and cost-effective manner. The federal arbitration law was first enacted in 1925, but sometime between the 1970s and 1990s, Szalai said there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships. And now, the U.S. relies on its corporate sector to resolve internal disputes more than any other country in the world. 

Tracing the Racial and Gendered Origins of Exemptions to Labor Standards

Daiquiri Steele, Enduring Exclusion, 120 Michigan L. Rev. (2022)

Economic justice has long been a part of the civil rights agenda, and minimum labor standards statutes play a crucial role in eradicating the exploitation and subordination of historically marginalized workers. While statutes establishing labor standards are characterized as “universal,” their effect has been anything but universal. Racial and ethnic minorities, women, and those at the intersection experience disproportionate violations of labor standards laws concerning minimum wage, overtime, and occupational safety and health.

Through legislative maneuvering dating back to the New Deal era, Congress carved out many female workers and workers of color from core protections of minimum labor standards legislation. Due to the vigorous advocacy of civil rights groups, amendments to these statutes expanded coverage, making these statutes more inclusive of marginalized workers. Nevertheless, the exclusionary legacy of these New Deal era-laws lingers today. Black, Latinx, and female workers are more likely to be retaliated against for asserting rights or reporting employer misconduct pursuant to these statutes.

Tracing the racial and gendered origins of exemptions to labor standards statutes from the early twentieth century to the present, this Article argues that, despite expanded coverage, female workers and workers of color remain largely excluded from “universal” workplace protections. Although anti-worker forces previously sought to thwart creation of legal rights for marginalized workers, contemporary anti-worker campaigns seek to gut marginalized workers’ protections through actual and threatened retaliation. Examination of the traditional rationales for employer retaliation reveals that the retaliation disparity is incongruent with these conventional motivations. This Article argues that securing compliance with both minimum labor standards and anti-retaliation reform should be integral parts of the civil rights agenda.

 

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MeToo's Landmark Yet Flawed Impact on Dispute Resolution in the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

Imre Szalai, #MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Northwestern Journal of Law and Social Policy, Forthcoming

On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Amendment”) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the “FAA”), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. In a nutshell, the Amendment generally invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, and the Amendment thereby allows victims to proceed with their claims in public court with more robust procedural protections. With hundreds of millions of arbitration agreements in place covering consumers and workers, the Amendment can have an impact on access to justice and shape how certain disputes are resolved.

While the goals of the Amendment are certainly laudable, the Amendment unfortunately suffers from several problems. Among other issues, the Amendment is poorly drafted, with at least three different interpretations concerning the scope of the Amendment, and it is uncertain whether the Amendment applies in the labor setting with collective bargaining agreements. The Amendment may also be unconstitutional as applied in certain settings involving state courts and state tort claims. The Amendment also raises several deeper questions about the regulation of arbitration and proper role of arbitration in society. This Article clarifies some of the confusion regarding the Amendment and suggests future reforms for arbitration law.

 

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SCOTUS Case on Animal Welfare Could Implicate State Power to Ban Abortion Pills Under the Dormant Commerce Clause

Michael Dorf, SCOTUS Animal Welfare Case Could Implicate State Power to Ban Abortion Pills

In October, the Supreme Court will hear oral argument in National Pork Producers Council (NPPC) v. Ross—a challenge by the pork industry to a California law that was adopted by referendum in 2018. Proposition 12 sets minimum welfare standards for the pigs raised for meat sold in California. Nearly all pork products sold in California come from pigs raised in other states. Thus, the plaintiffs—representing pig farmers, butchers, and the pork industry nationwide—argue that California is unconstitutionally regulating the interstate market.

The Constitution assigns to Congress the power to regulate interstate commerce, and the Court has long held that even when Congress does not exercise that power—i.e., when the commerce power remains “dormant”—states may not take certain measures to regulate interstate. However, the lower court held that Prop 12 is not the kind of measure that the dormant Commerce Clause forbids.

The chief evil at which dormant Commerce Clause precedents aim is discrimination. States should not engage in trade wars with one another by erecting protectionist barriers against out-of-state competition.***The plaintiffs do, however, raise two other sorts of dormant Commerce Clause claim. First, they invoke the principle that even a non-discriminatory state law will be held invalid if its out-of-state burdens are clearly excessive relative to its in-state benefits. Second, they contend that Prop 12 is essentially an extraterritorial regulation. Just as Iowa could not forbid the recreational use of marijuana in California, so California may not tell farmers in Iowa and other states how to treat their pigs.***

[A]lthough the dormant Commerce Clause might not forbid states from banning importation of abortion pills from out of state, here the Commerce Clause does not lie dormant. Congress exercised its power to regulate the movement of medications in interstate commerce when it enacted the Food, Drugs, and Cosmetics Act. In so doing, Congress delegated to the Food and Drug Administration (FDA) the power to approve drugs. While states may still regulate the practice of medicine, there is pretty good reason to think that FDA approval of abortion pills pre-empts (that is, displaces and nullifies) state laws restricting their sale or use. By contrast, the plaintiffs in NPPC do not contend that any current federal statute pre-empts Prop 12.

The Empirical Evidence for a New Approach to Sexual Harassment for Businesses

Jennifer Drobac & Mark Russell, Unmasking Sexual Harassment: The Empirical Evidence for a New Approach  
17 N.Y.U. J.L. & BUS. 315-390 (2021)

If moral outrage were enough, 50 years of antidiscrimination law and two full years of #MeToo should have led to the rapid remediation and elimination of sexual harassment by corporate decisionmakers. However, moral condemnation apparently is not enough, so this Article urges a multifaceted approach that combines (to start) research, financial analysis, disclosure, preventative cultural change, and remediation (if still needed). Through disclosure, it suggests a tactic that combines the goals of social entrepreneurship and profit maximization. Estimates suggest that sexual harassment costs U.S. business millions, if not billions, annually. However, most stock exchange-listed companies avoid financial disclosure or other reporting of sexual harassment claims. The onus for the invocation of Title VII and other antidiscrimination protections falls upon the victims and targets of abuse. Our research and empirical evidence demonstrate that corporations need to make changes to improve the proverbial bottom line. The disclosures that companies do make lack useful information for users of financial reports. Further, a high number of perpetrators of corporate sexual harassment are those with power—key executives and Chief Executive Officers (CEOs). Further, a number of non-disclosures of sexual harassment indicate poor management and culture at companies. Our results are consistent with companies that use arbitration and non-disclosure agreements (NDAs) to conceal sexual harassment. Our research supports a new SEC reporting requirement for all publicly traded companies (and a best practices approach for all organizations). Arguably, corporations would save much more by getting ahead of sexual harassment cases, disclosing problems, and avoiding expensive Title VII and shareholder derivative lawsuits. The evidence and common sense call for additional prophylactic action.

The Growing Gender Pay Gap from COVID Resignations and Suggestions for Reform

Amy Soled, Gender Pay Disparity, the COVID-19 Pandemic, and the Need for Reform, 87 Brooklyn L. Rev. 953 (2022) 

 The COVID-19 pandemic has exposed and deepened systemic inequities in the United States. One such inequity is gender discrimination in the labor market, evidenced by pay disparity—the difference between women’s and men’s wages. During the pandemic, women left the workforce at double the rate of men. This employment disruption will negatively affect women’s wages upon their return, as well as their lifetime earnings, further widening the pay gap. Pay disparity exploits more than half of the population, decreases gross national product, and stymies economic growth. This article addresses the reasons why existing legislation has failed to close the pay gap. Relying on the framework of successful Icelandic legislation, which has helped narrow gender pay disparities in Iceland, this article proposes federal legislative reform measures designed to shift the burden of proving wage discrimination from the employee to the employer. Instituting these changes would diminish the effect of implicit gender biases and, correspondingly, reduce pay disparity.

A Proposal for Vicarious Liability for Sexual Violence

Jennifer Brobst, Vicarious Liability for Risks of Sexual Violence in the United States: Not a Modest Proposal, 99 U. Detroit Mercy L. Rev. 233 (2022)

The author considers the intractability of legal remedies to the public health crisis of sexual violence in the United States, including the criminal justice system and federal anti-discrimination laws. She proposes, instead, as a systemic solution to a systemic problem, continued support for common law agency and tort theories of vicarious liability for businesses, municipalities, and the many leaders who create the spaces where sexual violence persists. Analysis includes a focus on the heightened duty of protection placed on common carriers, such as taxis and trains, and recent litigation in several states challenging the economically-motivated statutory exemptions for rideshare companies, despite the risk of sexual violence inherent in this mode of transportation.

Taking a Closer Look at Legal Treatment of Contracts of Sexual Agreements

Albertina Antognini & Susan Frelich Appleton, Sexual Agreements, 99 Wash. U. L. Rev. (2022)

Few would find it surprising that an agreement for sex falls outside the bounds of contract law. Prostitution—defined as an exchange of sex for money—has long been a crime, a point that courts often make in declining to enforce agreements between unmarried partners. In fact, courts routinely invalidate contracts when sex forms the basis of a couple’s bargain, whether married or not, and whether the sex is explicit or inferred from the relationship itself.

A closer look at the legal treatment of sexual agreements, however, tells a more complicated story. Although courts reject sex as consideration for being “meretricious” or “immoral” and invoke the illegality of prostitution as the reason for this limit, sex not only can form a part of some contracts, it is inherent to the very definition of certain relationships. While courts reject private agreements between spouses regarding sex, they nonetheless deem sex “essential” to the existence of marriage, and they quantify just how much sex matters when considering loss of consortium claims. Moreover, several contemporary developments cast doubt on the proposition that sex, or a perceived similarity to prostitution, must always doom agreements. In the parentage context, for example, legislatures and courts increasingly treat paid surrogacy arrangements as enforceable contracts, rejecting earlier arguments that emphasized the parallels to illegal sex work. Courts have also become more willing to acknowledge parentage agreements that involve sexual conception, and surrogate partner sex therapy and adult entertainment employment have escaped legal sanction. Beyond the incipient recognition of sexual arrangements as legal contracts, contract-based ideas have become salient in contemporary sexual regulation. Modern understandings of crimes like rape and sexual assault emphasize sexual autonomy and make consent and its absence the pivotal considerations, displacing earlier elements of force, resistance, gender, and nonmarriage.

This Article juxtaposes the traditional approach to sexual contracts with the emerging convergence of sex and contract. In so doing, this Article argues that what is frustrating couples’ contracts, both in and out of marriage, is neither sex, nor prostitution, but rather marriage itself. Given that sex is not actually differentiating the contracts that courts enforce from those they do not and given the various inequities that result from the current system, this Article ends by considering what it would mean to carry the contractual approach to its logical conclusion by recognizing sex itself as subject to contract.

Study Shows Effects from French Law Reform Requiring 40 Percent Gender Quota on Corporate Boards

Francois-Xavier Ladant & Louise Paul-Delvaux, "Women on Boards: Evidence from a French Reform Imposing a 40 Percent Gender Board Quota" 

In 2010 the French government mandated a 40% gender quota on corporate boards to be met by January 2017. The policy raised the average female board share of publicly traded firms from 10.3% in 2009 to 43% in 2019. We examine the effects of this staggering increase, leveraging new data on 200 French publicly traded firms from 2006 to 2019. Newly appointed female board members are as qualified as their male counterparts and less likely to have any family connection with incumbent board members. Female board members are also accessing powerful positions within the boardroom (committee membership and chairmanship). We then assess how these changes in corporate board composition (i) impact the implementation of board prerogatives and (ii) influence gender imbalances within the firm. Using an IV strategy exploiting the fact that the 40% threshold was set exogenously by the government and a Difference-in-Differences strategy comparing firms differently exposed to the quota, we show that an increase in the share of female board members has impacts at the very top. Indeed, we observe changes in practices that are aligned with better governance, higher likelihood of having a female CEO, and increased female representation in the top management. Beyond the very top of the firms’ hierarchy, an increase in the female board share has no or even negative impact on gender wage or promotion gaps.

An Operational Definition of Feminism for the Corporate Board Structure

Joan Macleod Heminway, Corporate Management Should All Be Feminists, 40 Law & Ineq. 409 (2022)

The title of this essay may alienate some readers, including the very people who may benefit from it most—corporate directors and officers. Specifically, the title directs the reader to a potentially uncomfortable normative conclusion, using what may be an off-putting “f” word. However, the essay is less about feminism (although it is about feminism) than it is about effective, efficient corporate management in the United States.

The essay offers an operational definition of feminism (as anti-sexism) derived from the merger of two foundational literary texts. It is hoped that the resulting reflections and observations will refocus at least some broader academic and practical discussions of gender— and other elements of difference, for that matter—in the corporate board context on structures, systems, and processes rather than on counting female directors (or other directors of difference) or on analyzing and specifying the particular roles they may serve in corporate governance. In doing so, the essay seeks to change not only the beliefs of corporate management, but also those of external corporate constituents and the public at large. In sum, this essay urges that directors and officers be feminists to change what they do and change what they see—in order to effectuate change in what we all see. me readers, including the very people who may benefit from it most—corporate directors and officers. Specifically, the title directs the reader to a potentially uncomfortable normative conclusion, using what may be an off-putting “f” word. However, the essay is less about feminism (although it is about feminism) than it is about effective, efficient corporate management in the United States.