Author:Bartlett, Katharine T.
Position:Response to article by Naomi Schoenbaum in this issue, p. 31

Introduction 1163 I. Beyond the Sharing Economy 1165 II. Beyond Intimacy 1167 III. Beyond Choice 1169 IV. Beyond Anti-Stereotyping 1170 Conclusion 1172 INTRODUCTION

The sharing economy has much to offer women. Through this economy, a person can be productive on a flexible schedule, outside the rigid forty-hour workweek of a conventional job. Those who have extra time, spare room, underutilized talents, or products they no longer need can find markets for their surpluses, without the need for highly capitalized corporate distribution channels. (1) Buyers, too, have more market flexibility. They have many more choices available to them, and through auctions or other bidding devices they can sometimes reach terms with sellers on a decentralized basis rather than on the more customary take-it-or-leave-it basis. Participants in the sharing economy often exchange information about each other in order to address privacy, safety, or other concerns they might have, and then use this information to decide with whom to do business. The opportunities to give and receive individual feedback also allow buyers and sellers to better evaluate the trustworthiness of their potential trading partner or the quality of the product in advance, as well as to express their pleasure or disappointment with a transaction. In these ways and others, the sharing economy promotes flexibility, networking, trust, cooperative relationships, and communication--all things that women are thought to especially value. (2)

In Gender and the Sharing Economy, Professor Schoenbaum challenges this utopic vision. She argues that, despite the features outlined above--indeed, to a certain extent, because of them--the sharing economy risks deepening and legitimating gender stereotypes and thereby harming women. (3) The problem is not that the features of the sharing economy described above are not valuable. It is that the flexibility, connection, and trust that speak to women's short-term circumstances and values come at the expense of women's more important, long-term interest in gender equality. (4)

Professor Schoenbaum's cautionary tale has several discrete and interactive parts. First, she explains that the sharing economy is disproportionately concentrated in intimate settings like personal homes and cars (rather than, say, offices and stores), and in personal services such as house-cleaning, outside chores, dog-walking, carpooling, roommate matching, and childcare (rather than more traditionally commodified goods and services). (5) Second, the intimacy of these transactions raises concerns by those involved in these transactions for privacy, comfort, sexual autonomy, and safety--concerns that tend to increase the salience of sex and, consequently, the strength and acceptability of gender stereotypes. (6) Third, the sharing economy is more likely than traditional market transactions to involve the exchange of personal information, which arguably reduces transactional risk, but at the same time, again, facilitates sex discrimination. (7) Finally, the sharing economy lacks the structural constraints, including applicable anti-discrimination laws, corporate enforcement structures, and worker interactions, that constrain discrimination in traditional business. (8) What Professor Schoenbaum fears, ultimately, is that the breakdown in nondiscrimination norms in the sharing economy will alter gender equality norms more generally, and thus to subvert the progress society has made over the years. (9)

Professor Schoenbaum's article is the first serious scholarship to examine the sharing economy's implications for gender equality and, as such, makes a huge contribution to the growing literature in this field. In this response, I offer four observations that highlight and elaborate some of its important insights. (10)


    Professor Schoenbaum observes that the extension of existing sex discrimination law to the sharing economy will not necessarily alleviate the gender issues she identifies. (11) This point warrants some emphasis and extension. A number of features of existing law detract from the law's ability to contain gender discrimination, even in the traditional economy. For example, as Professor Schoenbaum mentions, (12) current law only addresses the behavior of businesses, not customers. (13) Ordinarily, when society deems certain behavior harmful enough, it regulates that behavior on both the demand side and the supply side. (14) Why society treats discrimination differently from other harmful behaviors is beyond the scope of this response, but the fact is that the law prohibits only business sellers from discriminating, not individual customers. (15) This matters, for while the prohibition of discrimination by businesses makes discrimination by customers more difficult, there are still plenty of opportunities for customers, both online and in brick-and-mortar stores, to make discriminatory choices about with whom to do business, (16) how much to pay (17) or tip, (18) and how to evaluate the service they received. (19)

    Other limitations of anti-discrimination law also affect the law's ability to contain sex discrimination in both traditional and online economies. For example, the bona fide occupational qualification (BFOQ) exception to Title VII allows employers to make sex-based distinctions that they believe are essential to their businesses. (20) These distinctions are often grounded in the discriminatory preferences of customers and, in turn, help to perpetuate those preferences. (21) Similarly, not all public accommodations laws prohibit sex-exclusive policies even in traditional business settings such as women's gyms, public bathrooms, and "ladies nights," especially where these exclusions are supported by widespread customer preferences--preferences that are, as a consequence, reinforced. (22)

    The barriers courts...

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