The Correlation Between Antitrust Enforcement and Gender Equality

• Jurisdiction: United States,Federal
• Author: By Amy T. Brantly and Jennifer M. Oliver
• Publication year: 2021
• Citation: Vol. 31 No. 1

THE CORRELATION BETWEEN ANTITRUST ENFORCEMENT AND GENDER EQUALITY

By Amy T. Brantly¹ and Jennifer M. Oliver²

I. "BIGNESS" AND INCLUSION: DOES ONE AFFECT THE OTHER?

America's monopolies, duopolies and oligopolies, and its citizens' increasing reliance on their services, are drawing scrutiny at levels unseen for more than a century. Like industrial concentration, gender inequality, and especially economic inequality, is similarly a well-known cause of increasing concern in this country.

Parallels can be drawn between gender inequality and behavior from America's dominant firms. Gender and competition policy are inextricably intertwined; persistent unjust discrimination in a concentrated market may be a by-product of market power. Dominant firms exclude new entrants from a market, whereas gender inequity and biases exclude women from full participation in the economy and workplace. Gender inequity and biases can deprive firms of the benefits of women's diverse experiences and viewpoints, just as monopolies and their ilk can deprive consumers of the benefits of innovative new competitors.

There is correlation between these two problems as well. One problem exacerbates the other. Start by considering the roles women play in the economy as consumers, workers, and entrepreneurs.

First, women bear the brunt of anticompetitive and monopolistic behaviors in their role as consumers. Firms with market power have the ability to impose elevated prices with fewer competitive restraints. Without competition, a monopoly's price is the market price. Even when faced with high prices, consumers often cannot substitute the monopoly's product for a more affordable alternative. Supracompetitive pricing—the classic measure of antitrust harm—disproportionately affects women, because women drive a staggering 70-80% of all consumer purchasing in this country. ³

Women also find themselves the targets of price discrimination more often than their male counterparts, a relic of the outdated notion that women are spendthrift "shopaholics." One study conducted by the New York City Department of Consumer Affairs found that products marketed towards women and girls cost an average of 7 percent more than those marketed towards boys and men.⁴ Researchers have dubbed this phenomenon the "pink tax," and it is estimated to cost the average woman $1,351 per year.⁵

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And, as discussed below, in the labor market women are systematically underpaid compared to their male counterparts. The lower income the consumer, the more they are harmed since higher income consumers can more easily absorb monopoly rents than customers with less buying power.

Second, women workers suffer an inordinate share of monopolization's consequences. As Senator Elizabeth Warren said during a recent conference, studies show that market consolidation "contributes to driving down wages and driving up income inequality."⁶ Among myriad other negative effects, concentrated market structures reduce competition in the labor markets, which leads to wage suppression. Consider, for example, the In Re High-Tech "no poach" cases, in which the Department of Justice sued Google, Apple, and others for colluding and agreeing not to recruit one another's employees.⁷ This behavior is not limited to skilled employees; in the franchise no poach cases, fast food workers brought a class action case alleging that forbidding franchisees from poaching one another's employees violated antitrust law.⁸ As the High-Tech case demonstrates, in concentrated markets employee mobility declines, either because there are simply fewer firms to move to, or because the small number of firms in the market facilitates collusion to suppress mobility and wages.

When employee mobility is suppressed, low-level workers have even fewer opportunities to achieve career advancement or increased pay by moving to, or threatening to move to, another firm. Again, this affects female workers more than male workers. Since the start of the COVID-19 pandemic, millions of women have lost their jobs or voluntarily left the workforce, and many of those women were low level workers without the means to hire outside help.⁹ The Bureau of Labor Statistics reports that 227,000 jobs were lost in December 2020, with women accounting for 196,000 of those jobs (86.3%).¹⁰ If and when these women return to the workforce, many will be entry and low-level workers.

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Likewise, when wages are suppressed, women, and especially women of color, are affected disproportionately. Women make 79 cents on the dollar compared to men in the same jobs, black women make just 62 cents, and Latina women only 54 cents.¹¹ When wages shrink, so do women's unequal share of the wage pool. High level executives, on the other hand, may benefit from the employee wage and mobility suppression in these concentrated markets, since lower wages and expenses associated with employee mobility drive up corporate profits. As of 2020, there are still nearly 13 American companies run by a man for every company run by a woman.¹² Women of color hold an even smaller share of management roles in U.S. companies, with Latina women at just 4.3% and black women at just 4%.¹³

Gender inequality also distorts our view of the labor markets. More than 30 years ago economist Marilyn Waring conducted a worldwide study that found that if workers were hired to perform all the unpaid work that women perform, unpaid work would be the largest sector of the global economy.¹⁴ In 2020, the COVID-19 pandemic shed light on women's unpaid work once again, causing some to call for stronger antitrust enforcement as a means to address outsized corporate power and address income inequality.¹⁵

Third, women entrepreneurs are disproportionately harmed by market concentration as well. While some argue that preserving consumer welfare is the singular paramount goal of American antitrust law, many others would agree that it should also seek to preserve the pathways that allow for new, efficient, innovative market entrants to compete. Monopolies are often bad for consumer welfare because, among other things, they have the power to exclude smaller firms that might otherwise contribute new, innovative, and/or less costly products to consumers.

Women entrepreneurs are even more damaged than other would-be market entrants in this regard. Overcoming the barriers to entry in a concentrated market requires cash. Yet less than 5% of startup investment goes to women,¹⁶ and the average loan for women-owned businesses is 31% less than for male-owned businesses.¹⁷

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And just as monopoly firms can raise prices with minimal consequence, they can also refuse to serve customers, which can be detrimental or fatal to the companies that rely on the monopoly's product to survive. Consider, for example, the dominant role Facebook and Google play in the market for digital advertising, and the many small companies that rely solely on their digital advertising reach for sales leads. If the monopoly or oligopoly decides it will no longer serve market participants that are less profitable for the monopolist, those competitors are disenfranchised from participating in the market.

II. IS MARKET CONCENTRATION DRIVING INEQUALITY IN LAW FIRMS AS WELL?

When market concentration proliferates, diversity and inclusion is defeated: women and other historically underrepresented groups are disproportionately affected and foreclosed from the market. It stands to reason, then, that this trend translates to the legal market in particular as well.

The market for legal services is certainly nowhere nearly as concentrated as some, for example social media. However, it has seen a significant trend toward consolidation in recent years. There were 115 law firm mergers recorded in 2019, and after a precipitous drop during the COVID-19 crisis in 2020, many believe that law firm mergers will make a roaring comeback in 2021.¹⁸

Perhaps this movement toward greater concentration is partly to blame for the abysmal statistics surrounding the advancement of women, especially in "Big Law." In 2015, a special report from The American Lawyer entitled Big Law Is Failing Women estimated that, at the current rate, gender parity in equity partners at large law firms would not be achieved until the year 2181.¹⁹ The...