Discrimination by Design?

69 Pages Posted: 16 Sep 2020

See all articles by Naomi Cahn

Naomi Cahn

University of Virginia School of Law

June Carbone

University of Minnesota - Twin Cities - School of Law

Nancy Levit

University of Missouri at Kansas City - School of Law

Date Written: September 14, 2020

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

Suggested Citation

Cahn, Naomi R. and Carbone, June and Levit, Nancy, Discrimination by Design? (September 14, 2020). Arizona State Law Journal, Vol. 51, No. 0001, 2019, Available at SSRN: https://ssrn.com/abstract=3692557

Naomi R. Cahn (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

June Carbone

University of Minnesota - Twin Cities - School of Law ( email )

229-19th Avenue South
Minneapolis, MN 55455
United States

Nancy Levit

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

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