Discrimination by Design?

Abstract

Platform world is speeding the redesign of employment. Bricks-and-mortar firms once hired through narrow portals and then invested in the workers they hired, providing job security and predictable career ladders. Platform world flings the doors wide open to income-generating efforts, providing new opportunities but also offering security and predictable advancement to almost no one.

Other legal scholars have mined these same data for gender disparities; they have found disparities in the platform economy arising from customer biases and individual preferences, and manifested in men’s and women’s different experiences in everything from pricing plumbing services to fraud prevention. Neutral-appearing algorithms may then amplify the impact on wages and opportunities. Because the outcomes are not equal, other scholars argue that these disparities should be actionable. Accordingly, they suggest various ways to adapt existing laws to remedy gender disparities.

This Article is the first to develop an analysis of the multiple types of gender disparities in platform world. Rather than focus on the fact that disparities exist, this Article asks the question when—and even more provocatively, whether—they should matter.

First, the Article documents the various sources and forms of gender disparities, setting up the argument that no one legal approach fits. Second, while some of those disparities are already actionable under existing antidiscrimination laws, even antidiscrimination law today rarely provides a viable cause of action simply because the results produce statistical disparities. In platform world, it’s not clear that the disparities are morally questionable, actionable under existing law, or appropriate subjects for regulation.The real issues in this new economy concern the lack of benefits,stability, and promotion opportunities. Antidiscrimination law can help those employed by platform companies, but not the gig workers who need health benefits and protection against harassment, nor the algorithms that need oversight. Consequently, existing antidiscrimination law is all but irrelevant except to address the most glaring discrepancies, and the real need is for a wholesale rethinking of the legal infrastructure necessary to realize the benefits of the platform economy for more than a few platform creators.

Keywords: gig economy, discrimination, gender