Wednesday, January 19, 2022

FemTech, AI, and the Propagation of Gender Stereotypes and Discrimination

Eleonore Fournier-Tombs & Celine Castets-Renard, Algorithms and the Propagation of Gendered Cultural Norms, forthcoming for publication in French in “IA, Culture et Médias” (2022) (edited by: Véronique Guèvremont and Colette Brin. Presses de l’université de Laval).

Artificial intelligence is increasingly being used to create technological interfaces - whether chatbots, personal assistants or robots whose function is to interact with humans. They offer services, answer questions, and even undertake domestic tasks, such as buying groceries or controlling the temperature in the home.

In a study of personal assistants with female voices, such as Amazon's Alexa and Apple's Siri, the United Nations Educational, Scientific and Cultural Organization (UNESCO) argued that these technologies could have significant negative effects on gender equality . In addition to the fact that these artificial intelligence (AI) systems are trained on gender-specific models, these female-voiced assistants all feature stereotypical female attributes. This problem is compounded by the fact that these systems were probably created primarily by male developers . These gender-specific assistants can pose a threat through the biased representation of women they generate, especially as they become increasingly ubiquitous in our daily lives. It is predicted that by the end 2021, there will be more voice assistants on the planet than human beings .

Given the increasing use of voice assistants trained with biased language models, the potential impact on gender norms is of concern. While isolation has increased significantly during COVID-19, there is a risk that some people's main 'female' interaction is with these voice assistants. If we are not careful, sexist representations of women, totally out of step with real women, will intrude into the privacy of the home or our smartphones, anywhere, anytime. Moreover, the models are essentially the same, leading to the reproduction of a single 'standard' and a cultural smoothing in human-machine interaction, denying the diversity of users of these products around the world.

While some have argued that learning algorithms may be less biased than humans, who are often influenced by discriminatory cultural norms of which they may not be aware , this is without regard to the fact that artificial intelligence (AI) is necessarily created by human beings whose way of thinking it incorporates. Indeed, it is easy to underestimate the importance of cultural norms in human decision-making. Artificial intelligence mimics the social biases of the data it has been given unless it is explicitly designed with different principles. It is therefore not surprising that artificial intelligence developed without built-in values only reflects already biased social norms.

Bethany Corbin, Digital Micro-Aggressions and Discrimination: FemTech and the "Othering" of Women, 44 Nova L. Rev. 337 (2020)

 

The boundary between the digital world and the human body has disintegrated. With the rise of artificial intelligence and the internet of medical things, patients’ bodies can resemble a sci-fi cyborg that operates both independently and electronically through sensors. As the physical and cyber worlds blur, scholars and practitioners have debated medical device regulation, liability for device malfunctions, device privacy, and cybersecurity. One area of the discussion that has been left relatively untouched, however, is femtech. Described broadly as female technology, femtech encompasses wearables, artificial intelligence, apps, and other hardware and software that not only seek to heighten awareness of female health, but also aim to enhance women’s agency over their bodies. Reporters have called femtech a win for women’s health, as startups and venture capitalists finally invest in female products that can benefit half of the population. Today, the most common femtech products on the market focus on menstruation, maternity, and fertility, and are advertised as giving women control over their bodies and wellbeing.

But what if they don’t? By using femtech devices without understanding how these products are regulated and how their data is collected, manipulated, or sold, women may unintentionally be losing control and autonomy over their bodies. These devices collect intimate health data that may be used to maintain stereotypes and societal norms about the female body. For instance, some femtech menstruation products do not permit a user to input abortions or irregular cycles. This failure to account for all female body types and decisions perpetuates the flawed assumption that abortions and irregular cycles are deviations from the standard female body and can marginalize women who do not conform to these “norms.” Similarly, femtech can reinforce outdated perceptions about women and their bodies by consistently trying to quantify, analyze, and create a version of “normal” that all women should strive to achieve.

The fundamental assumptions of femtech, therefore, do not necessarily align with female consumers and patients, and may inadvertently diminish women’s agency and control over their own bodies. This misalignment stems, in part, from the lack of female and provider input into device creation, the rush to market new devices without adequate testing and vetting, and the male-dominated startup industry creating these products. This article analyzes the societal implications associated with femtech in its current form and offers recommendations for modifying the femtech model to avoid undesirable consequences as the industry – and devices – grow in size and complexity.

 

January 19, 2022 in Business, Technology | Permalink | Comments (0)

Tuesday, January 4, 2022

NYC law to mandate salary transparency. Will it bridge gender and racial inequities?

NYC law to mandate salary transparency. Will it bridge inequities?

NPR's Adrian Florido speaks with economist Teresa Ghilarducci about a bill passed by the New York City Council that would require most employers to post salary ranges for jobs.

ADRIAN FLORIDO, HOST:

The New York City Council last month passed a bill that requires private employers to post the salary range for all open jobs. The law is set to take effect in April. Similar laws already exist in a handful of places around the country. Their goal is to improve pay transparency and tackle inequities that often affect women, Black and brown people and other groups.

To learn more about these laws, we called someone who studies them. Professor Teresa Ghilarducci teaches economics and policy at the New School of Social Research in New York. Professor Ghilarducci, welcome.

January 4, 2022 in Business, Equal Employment, Gender, Workplace | Permalink | Comments (0)

Wednesday, November 17, 2021

Kellogg's (UK) to Give Staff Menopause, Fertility, and Miscarriage Leave

BBC, Kellogg's (UK) To Give Staff Fertility, Menopause and Miscarriage Leave

Cereals manufacturer Kellogg's has announced it will provide more support to staff experiencing the menopause, pregnancy loss or fertility treatment.

 

The firm said about 1,500 workers at its factories in Trafford and Wrexham and its Salford headquarters would benefit from a number of new measures.

 

They include extra paid leave for those undergoing fertility treatment or staff who suffer the loss of a pregnancy.

 

It said it was aiming to help staff feel "psychologically safe" at work.

 

The announcement was made as MPs are due to vote on a private members' bill later that, if passed, would make hormone replacement therapy free for those going through the menopause in England.***

 

Under the plans, managers will be trained on how to talk about the menopause and pregnancy loss and paid leave for pregnancy loss will be given without the need for a doctor's note.

 

It also intends to give staff going through fertility treatment three blocks of leave each year as well as access to a private space to administer treatment if necessary.

 

The firm's Europe vice-president in human resources Sam Thomas-Berry said it was "launching several new workplace policies for even better equity and inclusion".

November 17, 2021 in Business, Equal Employment, Family, Healthcare, Reproductive Rights, Work/life, Workplace | Permalink | Comments (0)

Wednesday, November 3, 2021

Judge Rules Christian Businesses Exempt from LGBTQ Employment Discrimination Claims

Religious Businesses Shielded From LGBT Bias Claims

For-profit businesses can be shielded from LGBT discrimination liability based on sincerely held religious beliefs, a federal judge in Texas ruled Sunday, addressing several legal questions left open after the U.S. Supreme Court granted anti-bias protections for sexual orientation and gender identity.

 

Braidwood Management Inc., which operates Christian health-care businesses controlled by Dr. Stephen Hotze, can avoid Title VII of the 1964 Civil Rights Act’s LGBT anti-bias prohibitions under the Religious Freedom Restoration Act and the First Amendment, U.S. District Judge Reed O’Connor in Fort Worth held.

 

Separately, Bear Creek Bible Church and other religious nonprofits can escape liability for firing, refusing to hire, or taking other adverse job actions against LGBT workers under Title VII’s religious exemptions, O’Connor said.

 

The ruling comes in a lawsuit that Braidwood and Bear Creek filed against the U.S. Equal Employment Opportunity Commission, seeking carve outs to Title VII following the Supreme Court’s landmark 2020 decision in Bostock v. Clayton County, GA, which expanded civil rights protections for LGBT workers. The justices left unaddressed the scope of religious defenses to workplace discrimination liability.

The case is here: Bear Creek Bible Church & Braidwood Mgt v. EEOC (N.D. Tex. Oct. 31, 2021)

November 3, 2021 in Business, LGBT, Religion | Permalink | Comments (0)

Wednesday, October 27, 2021

NASDAQ Board Diversity Regulations Challenged in Court

NASDAQ Board Diversity Regulations Face Another Court Challenge

A conservative think tank asked a federal appeals court to review the SEC’s approval of Nasdaq Inc. rules intended to boost the number of women and minorities on corporate boards.

 

The National Center for Public Policy Research on Tuesday submitted a petition with the U.S. Court of Appeals for the Third Circuit to review the regulations the Securities and Exchange Commission approved Aug. 6.

 

Another group, the Alliance for Fair Board Recruitment, previously filed a challenge to the rules Aug. 10 in the U.S. Court of Appeals for the Fifth Circuit. The alliance also sued over California’s requirement for corporate board diversity.

 

The Nasdaq rules require companies listed on the exchange to have at least one female board member and at least one who identifies as an underrepresented minority or LGBTQ—or explain why they don’t.

 

The SEC doesn’t have the authority to approve board diversity requirements for Nasdaq-listed companies, said Peggy Little, senior litigation counsel for the New Civil Liberties Alliance, which is representing the National Center for Public Policy Research.

 

“Congress could not constitutionally confer this power on any administrative agency,” Little said in a statement. “And the government may not collaborate with Nasdaq to effectuate something it is prohibited by the Constitution to do itself.”

The case is National Center for Public Policy Research v. SEC, 3d Cir., petition for review filed 10/5/21.

 

October 27, 2021 in Business, Constitutional, Courts | Permalink | Comments (0)

Thursday, October 21, 2021

It's Not About Leaning In. Negotiation Will Not Fix Sexism

Andrea Schneider, Indisputably, Negotiation Will Not Fix Sexism

Let’s start with the obvious–it pains me to realize that negotiation can’t fix everything.  As someone who loves to teach negotiation–and has long believed in the power of positive asking–I also need to recognize when individual action will not–and cannot–fix the ingrained biases and structural sexism that exists in the workplace.  A slew of recent studies back up this point in variety of ways that also point to a more nuanced understanding of what does need to be fixed.

To give a little history–many read Lean In and/or Women Don’t Ask and took these books as a call to focus on women’s deficiencies in negotiation.   This was despite that the fact that I and others had found no differences in perceived assertiveness among lawyers or other leaders.  (More from me in TEDx talk version here and research article here.)

Caveat– this is not to deny that differences in levels of assertiveness are found among young women in competitive, one shot negotiations with limited knowledge nor to discount the fact that failure to negotiate a higher starting salary leads to less money down the road.  It IS to say that these younger, less confident women should not be the template for advice to mature women in the workplace.  Numerous workplace studies have since confirmed that women and men ask for raises and promotions at the same rate–the problem is who receives them.

So–it is not that women don’t ask and it is not that women can’t lead–it is that the men (and women) who evaluate them do not promote them and underestimate their potential.  A study from Yale shows the disconnect between performance (in which women were rated highly) and potential (where moderately performing men were still given higher potential ratings than highly performing women )   This video interview with Prof. Kelly Shue talks through the study beautifully and the impact, over time, of this underassessment of women.  She and her researchers found that women were 14% less likely to be promoted each year–which resulted in a drop off from 56% women at the entry level to 14% women district managers.

Similarly, in an op-ed last week in the Wall Street Journal, renowned gender researcher Laura Kray and postdoc scholar Margaret Lee take on the “women don’t negotiate myth” and demonstrate that the pay gap results from women being given less responsibility over time–women lead smaller teams (despite the HBR results showing that women lead better) and this smaller leadership responsibility leads to less salary.

Moreover, study after study in Harvard Business Review have now shown that women are perceived as better leaders by their peers in 360 degree reviews–scoring higher than men on 17 of 19 measures before the pandemic and–in the face of a crisis–outperforming men even more.

October 21, 2021 in Business, Equal Employment, Gender, Women lawyers, Workplace | Permalink | Comments (0)

Tuesday, October 12, 2021

California law requires gender-neutral area in some stores

California law requires gender-neutral area in some stores

California is the first state to require large department stores to display products like toys and toothbrushes in gender-neutral ways.

The new law, signed by Democratic Gov. Gavin Newsom, does not outlaw traditional boys and girls sections at department stores. Instead, it says large stores must also have a gender neutral section to display “a reasonable selection" of items "regardless of whether they have been traditionally marketed for either girls or for boys.”

October 12, 2021 in Business, Gender | Permalink | Comments (0)

Wednesday, September 1, 2021

Bills Introduced in Congress to Allow Professional Licenses of One State to be Valid in State to Which Military Spouse is Relocated

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 | Comments (0)

Wednesday, August 25, 2021

Compelling Disclosure of Employer Information as Better Enforcement of Workplace Antidiscrimination Law

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 | Comments (0)

Tuesday, August 24, 2021

Institutional Embeddedness of Mumpreneurship in the UK: A Career Narrative Approach

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 | Comments (0)

Monday, August 16, 2021

New NASDAQ Diversity Rules Approved by the SEC

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 | Comments (0)

Tuesday, August 10, 2021

Introducing New Editor at Gender and the Law Prof Blog, Dean Brenda Bauges

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

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 | Comments (0)

Wednesday, August 4, 2021

Investigating the Pink Tax: Evidence Against a Systematic Price Premium for Women

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 | Comments (0)

Meet the New Gender and the Law Prof Blog Editor Amanda Fisher

We welcome to the Gender & the Law Prof Blog editorial team Amanda Fisher.  Amanda has done some blogging for Above the Law, and we are excited to have her join the Gender Blog team.

Amanda M. Fisher

Amanda M. Fisher is an Associate Attorney at Richardson, Ober, DeNichilo and a Ph.D. Candidate at the University of California, Irvine in Criminology, Law & Society. She is researching gendered stigma in the legal profession and identity. Amanda is also a Visiting Assistant Professor at Western Michigan-Cooley Law School in Tampa, Florida. You can follow her on Twitter or reach her via email at fishera@cooley.edu.

August 4, 2021 in Business, Women lawyers | Permalink | Comments (0)

Thursday, July 29, 2021

A Feminist Analysis of the International Mediation Process

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 | Comments (0)

Learning from the European Union Model of Corporate Board Diversity and Gender Equity

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 | Comments (0)

Tuesday, July 27, 2021

Recognizing the Problem of Discrimination Against Women as Business Owners and Investors

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 | Comments (0)

Friday, May 28, 2021

Using Feminist Pedagogy to Rethink a Seminal Corporate Law Case on Duty of Care

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 | Comments (0)

Wednesday, May 12, 2021

How to Reduce Discrimination in Veterans' Preference Laws

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 | Comments (0)

Monday, April 12, 2021

Corporate Governance and the Feminization of Capital

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 | Comments (0)