Gender and the Law Blog

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.

New Bipartisan "Speak Out" Bill in Congress Removes Legal Barriers to Reporting Sexual Harassment from Nondisclosure Agreements

The Speak Out Act Removes Legal Barriers to Reporting Sexual Assault

A new bipartisan bill would enable workers to report workplace sexual assault and harassment even if they signed a confidentiality agreement, nearly five years after the viral #MeToo movement exposed how the common legal tools can muzzle survivors.

 

Reps. Lois Frankel (D-Fla.) and Ken Buck (R-Colo.) told The Washington Post they introduced legislation Friday that would empower survivors to report instances of abuse in the workplace. The bill, called the “Speak Out Act,” would prevent employers from enforcing nondisclosure or nondisparagement agreements (NDAs) in instances when employees and workers report sexual misconduct.

 

“This is a preventive piece,” Frankel said. “When companies that are going to have offenders are aware that they cannot hide illegal sexual harassment, that they cannot put it under the rug, they’re going to take more steps from the get-go to keep it from happening.”

 

NDAs are standard features of employment contracts that protect sensitive company information. They’re common across industries: Over one-third of the U.S. workforce is bound by an NDA, according to a 2018 Harvard Business Review report.

The Effectiveness of Dispute Resolution for Gender Discrimination Claims

Catherine Ross Dunham, Social Truths in the Workplace: How Adversarialism Undermines Discrimination Litigation 

This article explores the effectiveness of dispute resolution for gender discrimination claims in the American system of civil litigation. Adversarialism is a defining feature of the American system of civil justice, beginning with reduced trust in the quasi-inquisitorial system of Chancery in the nineteenth century and escalating with the increased importance of lawyers and public trials in the twentieth and twenty-first centuries. Although adversarialism remains of great importance in some aspects of the American system, this article questions whether the adversarial system is the best dispute resolution system to address workplace-based discrimination claims, as those claims are intimately connected to changes in social and cultural understandings within the workplace and within American society.

The tenets of our system over-rely on the assumption of a shared social context to define social truth. But that assumption is flawed in workplace discrimination litigation as workplace context varies by profession, and the worker experience varies based on the individual’s position in the hierarchy. For example, in a gender bias-driven workplace, a male supervisor may see the workplace culture as fair and merit-based, whereas his female contemporary may view the workplace culture as competitive and closed, seeing her position as that of an outsider who had to navigate her career path carefully. These varying perspectives create different social truths in the workplace, which are challenged by litigation. When the female employee claims that she was discriminated against in an unfair workplace, her social truth is thrust against the social truth of other supervisors and managers who view the workplace as fair. Litigation places those two conflicting understandings of workplace culture into direct controversy and positions the relevant parties as adversaries not only on the legal issues, but also on the issue of what is true about the workplace culture, reducing the opportunity for meaningful cultural change within and without the workplace.

This article asks what type of dispute resolution system can create a more reliable assessment of workplace social truth. By exploring options such as the quasi-inquisitorial systems of American Chancery and European conciliation, as well as the role of arbitration in American civil litigation, the article suggests that a non-adversarial approach allows for a more holistic resolution of workplace controversies. If a conflict is overseen by a judicial officer who can approach the conflict from a place of conciliation, cognizant of the relevant community and social context, resolution options can not only offer relief to the plaintiff within the subject workplace, but can also protect the relevant economic and cultural interests of the defendant. Conflict resolution which attempts to understand the competing social truths of the workplace, can offer an opportunity for voluntary change in the workplace without placing parties fully at risk, as they are in the “winner-take-all” litigation scenario. Furthermore, as our social truths evolve and change, our dispute resolution system, which de facto manages those truths through adversarial litigation, should be reconsidered for its role in creating new truths about whether the workplace is fair to all.

Bringing Feminist Theory to Study the Moral Rights Protections of Copyright Law

Carys Craig & Anupriya Dhonchak, Against Integrity: A Feminist Theory of Moral Rights, Creative Agency, and Attribution, Research Handbook on Intellectual Property and Moral Rights, Ysolde Gendreau (ed), Edward Elgar (Forthcoming)

The term “moral rights” captures a collection of personal rights of the author that run parallel to economic copyright interests. These moral rights include the right of attribution (the right to be associated with the work as its author) and the right of integrity (the right to object to modifications of the work that may prejudice the author's honor or reputation). It is generally agreed that moral rights occupy a unique place (the moral high ground, if you will) within the copyright realm, reflecting an intimate and ongoing personal connection between the author and their work that is deserving of acknowledgement and respect. Yet it is not generally recognized that feminist theory has something to say about the nature of this intimate personal connection and the rights that it seemingly entails.

This Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. We begin by explaining why certain facets of conventional moral rights theory (typically based on the writings of Kant and Hegel) are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. Conceptually, they demand and support an individualized and romanticized conception of the (patriarchal) author-figure. In practice, to the extent that strong moral rights of integrity and association limit dialogic engagement and transformation of protected works, they risk suppressing the kind of critical and counter-hegemonic expression that is vital to a feminist political agenda. Employing alternative feminist conceptions of situated selfhood, relationality, and dialogic authorship, we then explore what it might mean to reimagine moral rights in a way that resists claims to exclusion and control, but reflects the personal, social, and political value of creative agency. We present a limited defense of the right of attribution on these terms, and conclude with a call for attribution as feminist praxis.

California Corporate Gender Diversity Law Struck Down, But Other States and Countries Continue Trend of New Laws

Ms., Gender Diversity on on California's Corporate Boards was Too Good to Law

In 2018, California broke new ground for women when Governor Jerry Brown signed the first-in-the-nation requirement that publicly traded companies in the state have at least one woman on their board of directors by the end of 2019, and two or three (depending on company size) by the end of 2021. The bill’s co-sponsor state Senator Hannah-Beth Jackson put it bluntly: “We are not going to ask any more.  We are tired of being nice. We’re tired of being polite. We are going to require this because it’s going to benefit the economy. It’s going to benefit each of these companies.”

 

Alas, it was too good to last. Last month, the law was deemed unconstitutional in a bench trial by Los Angeles County Superior Court Judge Maureen Duffy-Lewis because it wasn’t designed to remedy a “specific, purposeful, intentional and unlawful” instance of discrimination. She added that the state’s claims that diverse boards would directly boost California’s economy could not be proven.

 

It’s no surprise that Judicial Watch, the conservative group that prevailed in the litigation, trotted out the dreaded “Q Word” in opposing the measure: quotas. Legal precedent holds that quotas violate the Civil Rights Act of 1964, which prohibits discrimination against people based on race, gender, religion, age and other protected identities, because they could lead companies or schools to discriminate against people outside the targeted groups.

 

Never mind that in this case the poor, underrepresented targeted group happened to be wealthy white men, who have dominated corporate boards since Queen Elizabeth I the granted the first corporate charter to the East India company in 1600.

 

The ruling is without question a legal and moral setback, but fortunately for the future of women on boards in corporate America, that particular train may have already left the station. In the short time the law was in force, the percentage of board seats held by women virtually doubled—from 15.5 percent to 31.9 percent. In raw numbers, that translates to 766 female board members when the law was passed to 2046 by the end of 2021. ***

 

It’s clear from the pitiful progress since California led the way that stronger action is needed. Cases in point: Washington state’s law requires boards to have at least 25 percent of their makeup be members who self-identify as women. But violators face no penalties. Three other states—Maryland, New York and Illinois—merely require boards to disclose their demographic makeup. Ohio “encourages,” but does not require, disclosure.

 

We should take a page from the European Union playbook, where 40 percent female board seats for publicly traded companies were required as of March of this year. Under the new rules by the Council of the E.U., listed companies must meet the mandate by 2027

A Feminist Approach to Interpretation of World Trade Organization Agreements to Reveal the Lack of Neutrality

Anna Ventouratou, A Feminist Approach to the Interpretation of the WTO Agreements: Systemic Integration as a Gender Issue 

The normative content of international trade law is often depoliticised. The emphasis of trade lawyers and theorists on economics and the ‘technical’ nature of trade mechanics attempts to present the multilateral trade regime as ostensibly neutral. However, it is undeniable that the processes of trade liberalisation have a strong impact on the living conditions of people around the globe. This impact is asymmetrical: whilst trade liberalisation has created jobs for millions of workers, including millions of women, and has brought, at cases, on an individual level, greater economic independence, equality in the household, and personal empowerment, it seems that women are often negatively affected by the implementation of international trade law and policies. Moreover, despite their crucial role in increasing competitiveness and productivity, women rarely enjoy the benefits of trade liberalisation.

Although the need to re-evaluate established practices through a gender perspective is increasingly recognised in the international community, recent efforts by governments in the context of the WTO and other international institutions to engage in relevant discourse have been characterized by women’s rights groups as ‘pink herrings’: they seemingly address women’s rights but are essentially designed to mask the failures of the WTO and its role in deepening inequality and exploitation.

This paper asserts, firstly, that this is a fair criticism to the response of the WTO. It discusses how trade liberalisation has disproportionately affected women, especially women from lower incomes, rural areas and marginalised communities. It demonstrates that mere political declarations that call for inclusive economic growth and encourage the participation of women to economic activities ignore the realities of intersectional discrimination and the living conditions of millions of women that are employed precariously, under dangerous or unhealthy conditions and are denied access to public goods and basic social services. In other words, it demonstrates that trade liberalisation has a clear gendered impact.

Secondly, the paper suggests that a corrective step towards addressing the adverse impact of current trade regulations on women would be the adoption of an interpretative approach that is more deferential to international human rights law. This deference would require a paradigm shift in the approach of the WTO adjudicative bodies to the interaction of human rights law and trade law. The paper argues that the interpretation of the WTO Agreements in light of applicable human rights rules is not only analytically appropriate but also desirable from a feminist perspective.

The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

David Horton, The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act  
132 Yale Law Journal Forum (2022 Forthcoming)

In March 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Ending Forced Arbitration Act). The bill voids pre-dispute arbitration clauses in cases with allegations related to sexual misconduct. The legislation—which earned bipartisan support—was a stunning victory for the #MeToo movement and critics of forced arbitration.

However, this Essay explores a design choice that limits the impact of the new law. Previously, Congress has restricted forced arbitration through standalone statutes that apply with the full force of its legislative power. Conversely, federal lawmakers inserted the Ending Forced Arbitration Act within the FAA. Thus, the Ending Forced Arbitration Act only governs if the FAA governs. But the FAA is subject to several exceptions. In turn, when a case falls through the cracks of federal arbitration law, state law applies. Counterintuitively, the Essay demonstrates that many states require arbitration where federal law now does not. Thus, to truly achieve the goal of preventing allegations of sexual misconduct from being sent to private dispute resolution, either Congress must separate the Ending Forced Arbitration Act from the FAA or states should revise their arbitration statutes.

Study Finds that Women Lawyers Make Up Less than 10 Percent of Deal Leaders

Tracey E. George, Albert Yoon, Mitu Gulati, Gender, Credentials and M&A  

Since the 1990s, women have made up roughly half of law school classes. Attrition between entry to law firms and partnership results in women comprising 20 and 25 percent of partners. But who makes it to the top of the partnership? Is there yet more gendered attrition? Constructing a unique dataset of publicly-filed M&A deals and detailed biographical information of M&A lawyers, we find that women make up fewer than 10 percent of deal leaders. When we look at the factors that determine who becomes a deal leader we find that credentials – both educational and professional – matter. But they matter more for women. And one credential – attending a top law school – seems to matter a lot. Using conversations with senior lawyers, we try to get at some answers for why.

Exposing the Patent Archives as an Inaccurate Record of US Invention When Viewed Through the Lens of the Black Woman

Kara Swanson, Inventing While a Black Woman: Passing and the Patent Archive, 25 Stanford Tech. L. Rev. (forthcoming)

This Article uses historical methodology to reframe persistent race and gender gaps in patent rates as archival silences. Gaps are absences, positioning the missing as failed non-participants. By centering Black women and letting the silences fill with whispered stories, this Article upends our understanding of the patent archive as an accurate record of US invention and reveals powerful truths about the creativity, accomplishments, and patent savviness of Black women and others excluded from the status of “inventor.” Exposing the patent system as raced and gendered terrain, it argues that marginalized inventors participated in invention and patenting by situational passing. It rewrites the legal history of the true inventor doctrine to include the unappreciated ways in which white men used false non-inventors to receive patents as a convenient form of assignment. It argues that marginalized inventors adopted this practice, risking the sanction of patent invalidity, to avoid bias and stigma in the patent office and the marketplace. The Article analyzes patent passing in the context of the legacy of slavery and coverture that constrained all marginalized inventors. Passing, while an act of creative adaptation, also entailed loss. Individual inventors gave up the public status of inventor and also, often, the full value of their inventions. Cumulatively, the practice amplified the patent gaps, systematically overrepresenting white men and thus reinforcing the biases marginalized inventors sought to avoid. The Article further argues that false inventors were used as a means of appropriating the inventions of marginalized inventors. This research provides needed context to the current effort to remedy patent gaps. Through its intersectional approach, it also brings patent law into broader conversations about how law has supported systemic racism and sexism and contributed to societal inequality.

STEM Gender Inequality Means that Women's Ideas are Less Likely to be Built Upon

Michael Bikard & Isabel Fernandez-Mateo, Standing on the Shoulders of (Male) Giants: Gender Inequality and the Technological Impact of Scientific Ideas" 

We argue that gender inequality in science and technology means that ideas are less likely to be built upon if their author is a woman versus a man. Testing this empirically is challenging because men and women tend to work on different ideas whose potential is largely unobservable. To address this challenge, we exploit the occurrence of simultaneous discoveries in science – i.e., instances when a man and a woman have published the same idea around the same time – and track the citations to their subsequent publications in patented inventions. We find that scientific publications receive fewer patent citations, that is, they have a lower technological impact, when their main author is a woman. This gap is not driven by women’s lower propensity to produce patented inventions based on their own ideas, but rather by other inventors’ lower likelihood to build on those ideas. Additional analysis suggests that supply-side factors alone, such as the greater saliency of men’s work, are unlikely to drive our results. Rather, inventors seem to pay more attention to men’s ideas. Our research highlights that gender inequality shapes more than individuals’ careers. It also shapes the extent to which their ideas are used to create new technologies.

Using Private Law of Contract as a Vehicle for Social Change for Gender Equality

Susan Chesler, Using Private Law as a Vehicle for Social Change: A Feminist Approach.

 Even though contracts are so embedded in individuals’ personal and professional lives, rarely (if ever) do we think of contracts as being a vehicle for social change. To effect legal change that addresses societal injustices, we generally rely on our legislative bodies and common law system. In this essay, I argue that private law – by way of contract drafting – should be considered an additional vehicle for seeking and obtaining social change. While it’s easy to envision how contract drafting can be effectively used to create immediate, positive impacts on the transacting parties themselves, contract drafting can also be used as a vehicle for broader societal change. Since performance of the legal obligations of a private contract often affects other individuals who are not parties to the agreement, it follows that the way those private contracts are drafted may improve their circumstances as well. Additionally, while a single individual may lack bargaining power to negotiate the most favorable of contract terms for themselves, groups of individuals – such as labor unions -- may yield great power. And some individuals by virtue of their resources or position can yield substantial power in contracting favorable contract terms, even with more powerful entities. Contract drafting choices also have a direct impact on the way the common law is created in the judicial arena and thus its reach extends beyond the transacting parties. In this essay, I argue that the use of the same or similar contract drafting language in numerous unrelated contracts can have a significant impact and can effectively be used to address societal injustices.

As an illustration of the powers of contract drafting, this essay provides concrete examples of how a feminist approach to contract drafting can be used to eliminate, or at least limit, gender inequality. By applying a feminist perspective to the drafting of employment and premarital agreements, I demonstrate how contract drafting choices can not only lead to positive changes for the contracting parties, but can also lead to broader social change. While advocating for change through legislative and judicial pathways will likely remain the primary avenues for challenging societal injustices, this essay aims to show why contract drafting can also be used as a vehicle for change.

The Gender Pay Gap of High-Achieving Women in the Legal Profession

Milan Markovic & Gabriele Plickert, "The Gender Pay Gap and High-Achieving Women in the Legal Profession" 
Law and Social Inquiry, Forthcoming

Although women have made significant strides in the legal profession, female attorneys continue to earn far less than male attorneys. Relying on survey data from a large sample of full-time attorneys in Texas, we find a gender pay gap of $35,000 at the median that cannot be explained by differences in human capital or occupational segregation. We also provide evidence that the legal market especially disadvantages women who excel in law school. Whereas high academic achievement boosts male lawyers’ incomes substantially, it does not have the same effect on female lawyers’ incomes. High-achieving female lawyers earn less than high-achieving male lawyers across practice settings and earn less than their lower-achieving male counterparts in private practice. We conclude that discrimination in the legal profession operates partly by devaluing female attorneys’ human capital, such that sterling academic credentials and other traits that are valued in men are far less valued in women.

Making the Instrumental Case for Corporate Diversity

Naomi Cahn, June Carbone & Nancy Levit, The Instrumental Case for Corporate Diversity, J. of Law & Inequality

 
The moral case for diversity in businesses is compelling. The business case for diversity (that “diverse companies do better”) is mixed: studies in the business literature do not prove that simply adding diversity causes the improvement; instead, they posit that the improvement is likely to be “endogenous,” that is, the factors that encourage and sustain diversity, such as greater transparency, also improve financial performance. In this article, we make what we call “the instrumental case for diversity.” If the same factors that correlate with greater diversity also correlate with improved performance, then greater diversity can be a benchmark for better corporate management. It can make diversity metrics a tool (though not necessarily an exclusive or necessary tool) in measuring the reform of dysfunctional corporate cultures. Diversity might then become part of an iterative process; maintaining diversity will require management reforms such as greater transparency that will in turn fuel transformations in management cultures that further both greater diversity and better overall performance.

Evaluating the Pink Tax and Other Tropes as Strategies for Law Reform and Policy Making

Bridget J. Crawford, Pink Tax and Other Tropes, Yale J. Law & Feminism (forthcoming)

Law reform advocates should be strategic in deploying tax tropes. Through an examination of five common tax phrases—the “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax”—this Article demonstrates that tax rhetoric is more likely to influence law when used to describe specific economic injustices resulting from actual government duties, as opposed to figurative "taxes" in the form of other real-life burdens or differences. Slogans describing figurative taxes are less likely to influence law and human behavior, even if they have descriptive force in both popular and academic literature as a short-hand for group-based disparities. This Article catalogues and evaluates what makes for effective tax talk, in terms of impact on both the law and day-to-day actions on the ground. With this roadmap, lawyers, policy makers and others will be able make more forceful and precise tax-based arguments aimed at reforming the law and changing human behavior.

This Article makes three principal claims—one descriptive, one empirical, and one normative.

The Article first develops a taxonomy of tax phrases, based on the object of critique. The classification distinguishes between criticisms of compulsory formal levies, on the one hand, and burdens or oppressions that are akin to taxes, on the other. The taxonomy also notes some differences among tax tropes based on their linguistic form. Some phrases deploy a single word modifier for “tax” (like “nanny,” “death,” or “soda”) to signify a larger relationship, event, or transaction that is subject to taxation. Other phrases use a single-word modifier for “tax” (like “Black” or “pink”) that is strongly associated with the persons subject to taxation.

The Article next engages in a content analysis of multiple data sets of printed popular and scholarly literature to compare the relative “success” of the phrases “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax” in terms of frequency of use, links to legal reform, and impacts on taxpayer behavior. The resulting preliminary hypothesis is that tax tropes that deploy suggestive modifiers to describe literal taxes are more effective than those that allude to identity axes associated with figurative taxes.

Given the particular variability of the “pink tax” trope, the Article turns to normative recommendations for how gender equality advocates might rethink use of that phrase in particular. The “pink tax” is useful as an overarching description of related manifestations of gender inequality: the gender wage gap, gender-based pricing differences in consumer goods or services, disproportionate expenses incurred by a large portion of the population for safe travel or to maintain stereotypically “feminine” appearances, and unequal time burdens experienced by those responsible for households or caregiving. But only one manifestation of the “pink tax,” as a description for the state sales tax on menstrual products, has been well served by a tax shorthand phrase. “Tampon tax” talk has fueled litigation and advocacy efforts; it has led to sales tax reform in least ten jurisdictions, with more states expected to follow. Indeed, “pink tax” rhetoric describing figurative taxes might not, on its own, lead directly to legal change. For that reason, at least when arguing for law reform, gender equality advocates should not over-rely on “pink tax” talk and figurative tax tropes.

Judge Approves Million Dollar Sexual Harassment Settlement Against Video Company Activision Blizzard

Judge Approves Activision Blizzard $18 Million Settlement in Sexual Harassment Suit

A California judge says she will approve a settlement between video game giant Activision Blizzard and the U.S. Equal Employment Opportunity Commission.

 

The case stems from a complaint the federal agency filed in September, after a years-long investigation, alleging that employees at Activision Blizzard were subjected to severe sexual harassment and pregnancy discrimination, and that the company engaged in retaliation against employees who complained.

 

The settlement includes an $18 million fund for eligible claimants who worked at the company starting in Sept. 1, 2016.

 

"Our goal is to make Activision Blizzard a model for the industry, and we will continue to focus on eliminating harassment and discrimination from our workplace," said Activision Blizzard CEO Bobby Kotick in a statement. "The court's approval of this settlement is an important step in ensuring that our employees have mechanisms for recourse if they experienced any form of harassment or retaliation."

 

The EEOC's lawsuit is just one that the company has faced recently for its alleged toxic workplace culture.

 

The California Department of Fair Employment and Housing is also suing the company for equal pay violations, sex discrimination and sexual harassment.

Critiquing the Use of Artificial Intelligence for MeToo Enforcement in the Workplace

Leora Eisenstadt, #MeTooBots and the AI Workplace, U. Penn. J. Business L. (forthcoming)

Responding to the #MeToo Movement, companies across the United States and Europe are beginning to offer products that use AI to detect discrimination and harassment in digital communications. These companies promise to outsource a large component of the EEO compliance function to technology, preventing the financial costs of toxic behavior by using AI to monitor communications and report anything deemed inappropriate to employer representatives for investigation. Highlighting the problem of underreporting of sexual harassment and positing that many victims do not come forward out of a fear of retaliation, these “#MeTooBots” propose to remove the human element from reporting and rely on AI to detect and report unacceptable conduct before it contaminates the workplace.

This new technology raises numerous legal and ethical questions relating to both the effectiveness of the technology and the ways in which it alters the paradigm on which anti-discrimination and anti-harassment doctrine is based. First, the notion that AI is capable of identifying and parsing the nuances of human interactions is problematic as are the implications for underrepresented groups if their linguistic styles are not part of the AI’s training. More complicated, however, are the questions that arise from the technology’s attempt to eliminate the human reporter: (1) How does the use of AI to detect harassment impact employer liability and available defenses since the doctrine has long been based on worker reports? (2) How does this technology impact alleged victims’ vulnerability to retaliation when incidents may be detected without a victim’s report? (3) What is the impact on the power of victim voice and autonomy in this system? and (4) What are the overall consequences for organizational culture when this type of technology is employed?

This Article examines the use of AI in EEO compliance and considers whether the elimination of human reporting requires a reconsideration of the U.S.’s approach to discrimination and harassment. Appearing on the heels of revelations about the use of non-disclosure agreements and arbitration clauses to silence victims of sexual harassment, this Article posits that the use of AI to detect and report improper communications, an innovation that purports to help eradicate workplace harassment, may, in reality, be problematic for employers and employees alike, including functioning as a new form of victim abuse. Lastly, the Article considers the difficult work of creating open, healthy workplace cultures that encourage reporting, and the impact of outsourcing this work to Artificial Intelligence. Rather than rejecting what may be an inevitable move towards incorporating artificial intelligence solutions in the workplace, this Article suggests more productive uses of AI at work and adjustments to employment discrimination doctrine to be better prepared for an AI-dependent world.