By Jacki Silbermann*
A number of years ago, Uber claimed its business model was “driv[ing] another wave of women’s empowerment . . . For women around the world, Uber offers something unique: work on demand, whenever you want it.” Uber was not the only business predicted to increase women’s access to work. A 2017 study found that women in a variety of gig economy jobs believed that gig work would offer both more access to jobs and greater opportunity for equal pay.
There is good reason to believe that the gig economy and platform work would reduce the gender wage gap and increase gender parity by creating greater access to the workforce for women. Specifically, the argument goes, gender-blind algorithms would more equitably dole out jobs and more flexible work schemes would allow women to assume dual roles as employees and caregivers. Unfortunately, these optimistic predictions have not panned out. Recent studies suggest that despite equal access to work and comparable working hours, the gig economy is not an easy remedy for gender-based pay gaps. Rather, behaviors that manifest themselves in the traditional workforce are present in the gig economy as well.
In one of the earliest studies on the implications of gender in the platform economy (published in 2017), Israeli professors Arianne Renan Barzilay and Anat Ben-David found that gender-based pay gaps have persisted in platform work. Women earn on average 37% less than men across a wide range of occupations when controlling for a slew of other possible factors (education level, experience, occupation, hours of work and customer feedback). The authors posit that this gap may be attributed to women settling for lower fees for their goods and services due to undervaluation of themselves, or because many women who work in the gig economy may be doing so out of more acute need to earn money than men and are therefore more willing to take jobs that pay less.
In the ride-sharing sphere, a recent study found that Uber drivers who are men make 7% more than women per hour. The reasons? Men drove faster (allowing them to complete more rides per hour), were more likely to drive in areas and during times that yielded a higher fee, and generally had more experience driving for Uber, which was a strong predictor for higher earnings. Interestingly, the researchers found that gendered factors that often explain wage disparities, such as shorter working hours for mothers or customer bias against women, did not contribute to earnings gaps between men and women drivers.
In a 2019 study, researchers found that on Amazon’s online task platform Mechanical Turk, women earned 10.5% less than men per hour of work, largely because women tended to choose tasks that paid less. Interestingly, the wage gap held steady among women of different ages, races, experience levels, and whether women had spouses and children or not. Yet another study from 2018 found that on Upwork, a global freelancing platform, women were setting lower rates than men across a wide range of services.
These findings suggest that despite equal access to platform work and comparable working hours, the gig economy is not by itself a solution for gender-based pay gaps. These gaps are likely the result of business schemes that value typically male behavior or preferences (like the flexibility to take more lucrative jobs when they come up or driving faster), or learned inequality (women undervaluing their work and having lower pay expectations), behaviors that manifest themselves in the traditional workforce as well.
Some of these inequalities resemble a type of discrimination known as disparate impact, which is when a formally non-discriminatory policy or practice has an adverse effect on a protected class, such as individuals belonging to a certain race, sex or religion. In the case of the gig economy, for example, women’s working hours, limited by caregiver responsibilities, may not allow them to take advantage of higher-paid hours when demand is greater, or to otherwise optimize their earnings in a given work scheme. While the Supreme Court of the United States has held that disparate impact can constitute illegal employment discrimination, litigation over the years has afforded only an extremely narrow set of disparate impact cases that might be considered discriminatory, typically those that involve specific employer policies, such as seniority systems, written entrance exams or other specific hiring prerequisites. Moreover, the disparate impact theory has developed within the bounds of the employment relationship, and is therefore not readily applicable to gig workers today as they are typically not considered employees. Indeed, the present bounds of disparate impact are largely unadaptable to pay gaps in platform and other on-demand work.
If the gig economy is not presently putting men and women on equal footing, and current legal doctrine may not be able to correct the disparity, then is it still a useful framework for advancing women in the workforce? Though it may still be too early to make definitive conclusions regarding the gig economy’s contribution to women, studies suggest that gig work will likely improve women’s participation in the labor workforce by affording them greater access to flexible work opportunities and by creating a larger paid market for jobs that are more traditionally carried out by women, such as home care and domestic work.
Insofar as the gig economy creates more access to work for women, we must start to seriously ask (1) how the gig economy should be dealing with disparate impact and other socially-ingrained behaviors that entrench gender-based pay gaps, and (2) who should be responsible for ameliorating those outcomes. Perhaps platforms like Uber and Lyft should adjust their pricing strategies to incentivize women drivers, particularly those that split their working hours between driving and caregiving. Others have suggested that ridesharing platforms be obliged to minimize gender-based pay gaps when pricing practices incentivize negative behavior, like driving too fast. Some have suggested that freelance platforms provide sellers of goods and services data on pricing by other sellers so that women can better assess prices and negotiate on more equal footing.
While possible solutions are only in their infancy, for now the gig economy is not creating gender parity when it comes to pay. It may be helping more women enter the workforce, but employers and platforms in the gig economy will have to do a little more in order to eliminate gender-based pay gaps.
*Jacki is an LLM student at Harvard Law School
 See Arianne Renan Barzilay and Anat Ben-David, Platform Inequality: Gender in the Gig Economy, 47 Seton Hall L. Rev.393, 400-401 (2017); Chen Liang, Yili Hong, Bin Gu and Jing Peng, Gender Wage Gap in Online Gig Economy and Gender Differences in Job Preferences, NET Institute Working Paper, at 3.
 Renan Barzilay and Ben-David, 408, 414.
 Id., 420-421.
 For an overview of the issue as it relates to the gig economy see Naomi Cahn, June Carbone and Nancy Levit, Discrimination by Design?, 51 Ariz. St. L.J. 1, 9 (2019).
SeeRenan Barzilay and Ben-David, 403; Cahn et al., Discrimination by Design?, 37.
 Griggs v. Duke Power Co., 401 U.S. 424 (1971).
 SeeMichael Selmi, Was the Disparate Impact Theory a Mistake?, 53UCLA L. Rev.701 (2006); Naomi R. Cahn, June Carbone and Nancy Levit, Gender and the Tournament: Reinventing Antidiscrimination Law in an Age of Inequality, 96 Tex. L. Rev. 425 (2018).
 Cahn et al., Discrimination by Design?, 61.