We know prices are neither gender neutral nor race neutral. Prices reflect not only factors such as quality but also bias. Thirty years ago, Ian Ayers demonstrated, in a pioneering study, that Chicago retail car dealerships systematically offered substantially better prices on identical cars to white men than they did to both Black men and women and to white women.
In a more recent study, Tamar Kricheli-Katz and Tali Regev showed that women sellers on eBay obtained a smaller number of bids and lower final prices in auctions for both used and new products. While the former study addressed the prices women buyers paid, the latter study addressed the prices women sellers were paid. These studies were conducted nearly 25 years apart from one another, and examined different merchandise. However, in both cases (and in many other similar studies) gender had an impact on the prices, and men got better deals than women as both buyers and sellers.
Gendered Prices, a new study by Adams, Kräussl, Navone and Verwijmeren explores gender bias in the pricing of artwork. The authors examined a sample of 1.9 million transactions conducted at more than 68,000 auctions for 69,189 individual artists in 49 countries from 1970 to 2016. This sample was taken from Blouin Art Sales Index, the largest database of artwork, and was limited to paintings only. This sample showed that auction prices for paintings by female artists were significantly lower than prices for paintings by male artists. The mean transaction price for male artists was around US $50,480, while the mean price for female artists was only US $29,235, meaning that the discount for paintings by women was 42.1%. When excluding mega-transactions (above one million dollars), the discount dropped from 33.1% in the 1970s to below 22% after 2000 (and to 8.4% after 2010).
In addition, the study showed that the gender discount in auction prices is generally higher in countries with greater gender inequality. The authors concluded that culture was a source of pricing bias. The authors ruled out the explanation that “female” art was less appealing to investors since they showed that it was no different from “male” art in style and themes. The authors concluded that art by women artists sold for a lower price simply because it is made by women. To affirm their conclusion, the authors conducted two experiments using surveys. In the first experiment using a sample of ten paintings they asked 1,000 participants how much they liked the painting on a scale of 0-10 after guessing the gender of the artist. They found that participants who were male, affluent and who visit art galleries (the prototype of a typical bidder in art auctions) had a lower appreciation of works they associated with female artists than other participants. In the second experiment they “created” ten paintings using a neural network algorithm. Then they randomly associated fake male and female names with these paintings and again asked 2,000 participants how much they liked the paintings (again in a 0-10 scale). They found that affluent participants who visit art galleries had a lower appreciation of works which were associated with a female artist name. These experiments again supported the conclusion that women’s art was sold for less simply because it was women’s art. Therefore, price indicated not only quality but other factors like culture. Since culture is not immutable and social inequality can decrease over time, the paper is ultimately an optimistic one.
What are the legal implications of these studies? It is challenging to formulate a legal response to this systematic price discrimination. With that, here are three preliminary thoughts:
First, all of the above sales (of used cars, products on eBay or paintings) are contracts. Can contract law address gendered pricing? A known contract law principle is that the court will not look at the adequacy of consideration. In other words, the parties decide the terms (such as price) of their exchange and the court will refrain from intervening. However, should contracts that perpetuate discrimination be allowed? Hila Keren, for example, has argued that contract law has an important role to play in addressing discrimination. Though Keren focused on precontractual negotiations and on the refusal to contract, she generally argued that contract law should not ignore discrimination. There are advocates for fair exchange or fair price rules under contract law. This could ultimately mean that contracts that discriminate on the basis of gender or race should not be enforced.
Second, consumer protection laws and regulations might also address gendered pricing. Given that the studies demonstrated systematic racial and gender discrimination, it is necessary for the government to intervene in the way the market sets the prices, rather than restricting its role to that of contract enforcement. It is especially important in markets for necessities or large transactions to mitigate the effect of factors such as race or gender on price. Laws and regulations, however, which are limited to consumer transactions would unfortunately not apply to other cases where women pay more/are paid less than men.
Third, the most promising legal avenue is anti-discrimination laws. Since discrimination is a social and cultural phenomenon, it is imperative to uproot stereotypes and notions of inferiority of marginalized groups and to protect underprivileged parties. As the study of Adams et al showed, gender discounts reduce over time as gender equality increases, thus one optimistically hopes that advancement of social equality in general would bear fruits also in terms of fair pricing. In other words, in a post-patriarchal world, women would get as good a deal as men whether they are artists, buyers, or sellers.