While adequate legal frameworks are a precondition for ensuring gender equality, without effective enforcement by the competent authorities or courts, victims of discrimination might enjoy the right to equality in theory but not in practice. This observation1 mostly made with reference to the classical cases of discrimination in the offline world is even more true in the age of algorithms, where the cause and process of discriminations is opaquer and gathering evidence by potential victims is complicated. Considering that in the European Union, progress on social and equality law tends to curtail economic law, competition law can be seen as a laboratory in order to identify innovative ideas for reforming (gender) equality law.
Based on available EU and US literature and an analysis of both competition and equality law’s objectives and enforcement systems, this paper identifiesthe potential for gender equality law to learn from substantial and procedural competition law to address the issues of algorithmic discrimination.
First, considering that the origin of algorithmic discrimination is mostly the result of globally designed algorithms or globally available datasets, gender equality law needs to either embrace a more regional or global approach or rely on the “effects doctrine” known for example in EU and US competition law in order to achieve effective enforcement in the age of algorithms. In the same vein, the EU Artificial Intelligence Act recognizes the global nature of AI systems and embraces the effects doctrine which extends the scope of its application beyond the EU.
Second, the enforcement architecture and practice of competition authorities can inform and improve the enforcement of gender equality law in three ways. Primo, innovating public enforcement of gender equality laws by adapting elements of a DG COMP or FTC/DoJ style of enforcement powers, which centralizes decision powers either in a separate authority or grant those powers to a future DG Equality. Segundo, following the trend in competition law and other disciplines, encouraging private enforcement and class actions in discrimination law could improve the effective enforcement of victim’s rights. Tertio, a clear division of competences between national and EU level could be established by using Regulation 1/2003 as a blueprint.