Thursday, June 9, 2022

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.

June 9, 2022 in Business, Equal Employment, International | Permalink | Comments (0)

Wednesday, June 8, 2022

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.

June 8, 2022 in Business, Equal Employment, Violence Against Women, Workplace | Permalink | Comments (0)

Tuesday, June 7, 2022

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.

June 7, 2022 in Business, Gender, Women lawyers | Permalink | Comments (0)

Monday, June 6, 2022

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.

June 6, 2022 in Business, Guest Bloggers, Legal History, Race, Science | Permalink | Comments (0)

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.

June 6, 2022 in Business, Gender, Science | Permalink | Comments (0)

Friday, June 3, 2022

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.

June 3, 2022 in Business, Equal Employment, Family, Gender, Theory | Permalink | Comments (0)

Thursday, April 21, 2022

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.

April 21, 2022 in Business, Equal Employment, Women lawyers | Permalink | Comments (0)

Thursday, April 14, 2022

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.

April 14, 2022 in Business, Equal Employment | Permalink | Comments (0)

Wednesday, April 13, 2022

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.

April 13, 2022 in Business, Gender, Legislation, Pop Culture | Permalink | Comments (0)

Wednesday, March 30, 2022

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.

March 30, 2022 in Business, Equal Employment | Permalink | Comments (0)

Thursday, March 17, 2022

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.

March 17, 2022 in Business, Equal Employment, Technology | Permalink | Comments (0)

Congress Passes Law Prohibiting Forced Arbitration in Sexual Harassment Cases

Wash Post, Bill on Forced Arbitration for Sexual Harassment Victims

Congress, you may be surprised to learn, passed a bipartisan bill this week meant to address a genuine injustice. It’s an unquestionable success, both for the people directly affected and for the institution, which still manages to accomplish a few things here and there — even at a moment of filibuster-induced paralysis.

 

But the limits of the bill raise an important question: Why stop there?

 

The bill is the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. It passed by a 335-to-97 vote in the House (all the No votes were Republicans), and by a voice vote in the Senate. President Biden is expected to sign it soon.

 

The bill goes after all-too-common clauses in employment contracts that forbid people from filing lawsuits if they are mistreated or abused on the job — though in this case, just lawsuits for sexual assault and harassment.

 

Instead, they’re forced into an arbitration process where the deck is stacked against them. The arbitrator is selected and paid by their employer (who might even be the harasser himself), and these kinds of contracts often limit the amount of compensation someone can receive even if they manage to win the case.

 
All it took to pass the bill was years of work and time, and some famous women willing to tell their own stories of harassment, including former Fox News anchor Gretchen Carlson and actor Eliza Dushku.

March 17, 2022 in Business, Equal Employment, Legislation | Permalink | Comments (0)

Tuesday, March 15, 2022

Mayer Brown and Women in Law Hong Kong team up to examine gender bias in legal industry

Mayer Brown and Women in Law Hong Kong team up to examine gender bias in legal industry

In recognition of International Women's Day, global law firm Mayer Brown teamed up with Women In Law Hong Kong to launch a joint project that will explore gender biases in Hong Kong's legal industry.

The "Everyday Behaviour Project" will involve an anonymous survey to collect data on the everyday experiences of women in the Hong Kong legal sector. The objective of the project is to examine the behaviours that women face, including gender biases and micro-aggressions – the everyday, subtle, often unintentional comments and interactions that may contribute to gender inequality.

Results will be announced later in the year and will aim to shine a light on whether everyday behaviour is adversely affecting women's careers in the Hong Kong legal industry.

. . . 

“The 'leaky pipeline' issue in the legal profession is well known,” [said Harris, a partner at Mayer Brown's litigation and dispute resolution practice and co-chair of the firm's Asia women's network, Retain and Advance Women.] “For many years, the vast majority of junior solicitors in Hong Kong are women but only 30 percent or less become partners. We see binary data on gender disparity issues in the Hong Kong legal profession, but going beyond this to examine more nuanced, everyday behaviours will offer a new perspective."

March 15, 2022 in Business, Gender, Women lawyers | Permalink | Comments (0)

Wednesday, February 9, 2022

Theorizing Beyond the Gender Binary in the Context of Menopause Capitalism

Naomi Cahn, Bridget Crawford & Emily Gold Waldman, Managing and Monitoring the Menopausal Body, Univ. Chicago Legal Forum (forthcoming).  

This Essay explores how menopausal bodies are managed and monitored through both menopausal hormone therapy (MHT) and the burgeoning market for technology-driven menopause products and services. While each of these allegedly improves the menopause experience, a closer investigation reveals a more complex interaction of profit motives and traditional notions of gender identity. The Essay identifies problems with—and suggests some solutions for reforming—current practices of monitoring and managing the menopausal body.

Careful consideration of menopause brings this Essay into ongoing conversations about theorizing beyond the gender binary and stereotypical notions of femininity. Purveyors of both MHT and menopause-related digital products and services appeal to mostly cisgender women by emphasizing ideas of youthfulness, attractiveness, and sexual desirability. We locate these profit seekers within “menopause capitalism,” the marketing and selling of menopause-related products through messages that celebrate autonomy, community, or femininity from entities that are, at their core, commercial enterprises

February 9, 2022 in Business, Reproductive Rights, Theory | Permalink | Comments (0)

Wednesday, January 26, 2022

The Gender Gap in Merger and Acquisition Leadership

Afra Afsharipour, Women and M&A, 12 UC Irvine Law Review (2022 Forthcoming)

Corporations, law firms and investment banks all state that diversity matters. This Article shows that there is a chasm between discourse and action. For the most important decisions undertaken by companies—large merger and acquisition (M&A) transactions—a gender gap persists. This Article provides a holistic examination of the entire network of lead actors involved in M&A, revealing that women’s leadership opportunities continue to be vastly unequal. Using hand-collected data from 700 transactions, this Article reveals that thirty years after women began to account for almost half of all law students, gender parity in M&A leadership lags far behind. To illustrate, over a 7-year period, women make up on average 10.5% of lead legal advisors for buyers in M&A. Moreover, this Article documents the lack of transparency on leadership data for other players in M&A. This Article argues that understanding, documenting, and disclosing the gender gap in M&A leadership is critical for increasing accountability and for determining the solutions that may work to reduce such disparities

January 26, 2022 in Business, Equal Employment, Women lawyers | Permalink | Comments (0)

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)