Gender Inclusive Competition Toolkit

Annex A. Checklist for a gender inclusive competition law and policy

1. Gather data

Competition authorities require disaggregated data to understand when and how diverse groups of people are harmed disproportionately. Gendered data is a good starting point. However, having a broader set of data is even better, as additional demographic data can be used to control for other characteristics.

• Ask for disaggregated data related to consumer facing markets whenever possible, including transaction level data. If you are not sure where to start, ask the company for a list of data they collect on consumers or competitors.

  • Considering privacy concerns, it is good to get de‑identified data where only characteristics are listed, rather than names.

  • For public records where names are available (e.g. online reviews), authorities can use predictive naming tools to infer gender when it is otherwise unavailable.

• Request information about consumer profiling or if and how the company distinguishes between types of consumers.

• To gather data, include gender in published decisions whenever possible, including characteristics and relationship of cartel participants.

• Consult with other law enforcement agencies to see if they gather and use gender-based data. The data itself or methodologies to gather data may be useful.

2. Use surveys to better understand consumer behaviour

Surveys can be used to better understand consumer behaviour, including factors such as: what product attributes are most valued; if there are differences in frequency of buying and differences in volume bought; price sensitivity and awareness; and overall switching levels. Collecting a range of data indeed enables an authority to focus on certain characteristics and control for others. It is important to collect information on additional identity factors, as this can be used to control for various characteristics and confirm if an effect in a market is due to gender, or some other identity factor. Use and design surveys to gather disaggregated data for a range of identity factors, including gender.

• Use and design surveys to gather disaggregated data for a range of identity factors, including gender.

• Tailor surveys to the needs of the review or investigation to get the right data.

• There may be differences between revealed versus stated preferences. This can influence responses. It is important to include questions that reveal both by including questions about past practice and hypothetical situations.

3. Apply a gender lens to market definition and competitive effects analysis

Thinking about market definition and competitive effects analysis along gendered lines helps competition authorities understand who is affected by anticompetitive conduct and to what extent. It is then possible to evaluate whether one group of consumers is better off than another, and if that needs to be corrected or prevented. Gender can influence consumer preferences, for example whether a consumer sees a product as complementary or substitutable; price‑sensitivity; and switching behaviour.

• Look at both supply-side factors and demand-side factors when applying a gender lens.

• Supply-side factors include product attributes, product marketing and product sales channels to see if firms are targeting a specific gender.

• Demand-side factors to consider, such as the identities of consumers, and if consumers exhibit different behaviour.

• Determine if a firm can differentiate by gender.

  • If yes, consider if the firm can differentiate by product or price. If yes, there are likely separate relevant markets or separate relevant effects and therefore, authorities should include gender as one of the variables to consider when assessing competitive effects.

  • If no, consider if the firm can profitability raise prices for all consumers. This will depend on the size of the groups (i.e. number of male vs female consumers), and their respective price sensitivities. If the more price sensitive group is large enough, it can protect the others from adverse competitive effects. Assess factors like substitutability by subgroups of consumers, and then compare that to consumers in aggregate.

• Analyse disaggregated data to see if gender is the driving factor for different preferences and price elasticities of demand that lead to different switching behaviour.

  • For consumer facing markets and where data is available, consider gender in the first instance when looking at consumer preferences, price sensitivity, switching behaviour. This will determine if a deeper gender-based analysis is warranted. Where that is not possible, prioritise gendered analysis in markets known to have gendered effects such as toys, clothing, personal care products, health care products, dry cleaning, hair cutting services, insurance, financial products.

• When looking at different metrics and analysis of competitive effects, separate out different genders and then compare with consumers in aggregate to see if there are gendered effects.

4. Tailor remedies

More effective consumer remedies are a result of a better understanding of who is harmed. Competition authorities could consider differences in behaviour, to determine the level of harm for specific groups and tailor remedies to correct or offset that harm. Competition authorities can also consider outcomes that target and improve the consumer welfare of the most negatively affected groups.

• Review the results of gendered-analysis and consider the need for tailored remedies if there is evidence of different levels of harm to subgroups of consumers.

• Consult broadly with diverse stakeholders to market-test remedies, including women’s groups.

5. Consider gender diversity in cartel investigations

Cartels are often formed through the social interactions of people, who gather and exchange information seeking to replace competition with co‑operation. When investigating and interviewing potential cartelists, competition authorities should seek to understand the broader range of interactions and history between suspected individuals and the gender dimension of those interactions.

• Review the homogeneity of groups suspected of cartel behaviour and factor gender into forensic cartel analysis to aid in detecting cartelists.

• Look at formal and informal networks, and prior relationships to understand opportunities to collude.

• Increase the use of behavioural economics in cartel detection and investigations to better understand the balance between incentives to collude and deterrence.

6. Include gender considerations in compliance and advocacy

Industries that incorporate significant socialisation in the margins of business meetings, where participants are more homogenous and have repeated participation over time, will be at increased risk of cartel behaviour. Firms that opt to change representatives and pay attention to gender balances may be able to reduce the risk of cartel behaviour.

• Discuss within cartel teams both informal and formal examples of social interactions and networks, the risks of homogenous groups and how they can facilitate cartel formation and present a risk to compliance.

• Target compliance outreach to industries that have less diversity and are at greater risk of cartel conduct explaining the compliance risks when management is homogenous with regular social interactions.

• Promote corporate diversity efforts across all industries as part of compliance outreach.

• Target networks of businesswomen to explain leniency and immunity programmes.

7. Consider diversity and inclusion at the institutional level of competition authorities

Competition authorities could benefit from a diverse workforce for many of the same reasons boards do. Those making important decisions benefit from a diversity of perspectives, and this leads to better governance.

• Conduct a self-assessment to understand organisational gaps in representation. Generally, representation should be compared against the general population.

• Use recruitment, training, mentoring and development opportunities to fill gaps in representation.

• Track diversity data over time (either internally or by reporting to international organisations through annual reports) and assess against other institutional changes (e.g. shifts in priorities).

• Make data on representation and commitment to diversity and inclusion available to the public.

8. Target stakeholder engagement to ensure inclusivity

Creating a two‑way flow of information with relevant groups of stakeholders helps authorities to understand the impact of their work and decisions. This dialogue could lead to better or more complaints or tips for enforcement or compliance activities to address conduct affecting women.

• Review who has been consulted. If a gender gap exists, do targeted consultations to address any gaps (e.g. women’s business groups).

• Target and build relationships with women’s business groups to help address barriers in markets that matter to them.

• Target and build relationships with women from diverse groups and markets.

• Target women in relevant markets through surveys or focus groups.

• Provide multiple timing options for public events, with in person and virtual attendance options.

• Provide online engagement options, such as a dedicated feedback website or hotline.

• Provide resources in multiple languages available to women who may be in a minority group.

9. Consider gender in prioritisation decisions

Competition authorities have limited resources and need to prioritise some matters over others. Competition authorities can incorporate in their priorities enforcement and compliance work that address barriers that prevent women from gaining market access.

• Discuss gender internally with for authority staff, ensuring management engagement, to understand the issues around gender inclusive competition.

• Enforcement priorities should also consider the gender structure of firms and target industries with lower levels of diversity in management positions.

• Consider gender as part of the prioritisation process for enforcement, compliance, and advocacy efforts.

  • Consider gender when prioritising market studies by targeting sectors that are traditionally important sectors for women’s participation in markets, including childcare, elder care, infrastructure; or that historically have presented anticompetitive barriers to women, for example, financial markets.

  • Prioritise addressing barriers that prevent women from gaining market access or participating in markets.

  • Monitor and increase vigilance for industries that lack female representation.

10. Apply a gender lens to ex-post evaluation

Ex-post evaluation is an important tool for understanding the impact of earlier work, including if an intervention achieved the intended objective, and if not, why it failed. Ex-post evaluation may reveal approaches and methods of analysis that are useful for gendered analysis and could be used in future matters.