Will New "Pink Tax" Legislation Green Light Class Actions Alleging Gender-Based Pricing Discrimination?

Key Takeaway

New and proposed legislation prohibiting gender-based pricing discrimination  potentially triggers class action lawsuits based on similar allegations.

Recent legislative activity suggests that class litigation may soon redress what some have described as a "Pink Tax"—a concept that has allegedly resulted in women, on average, each paying an estimated $1,350 more annually than men do for substantially similar goods and services.¹ Alleged examples of such goods and services include deodorant, razors, shaving cream, walking canes, pens, dry cleaning, and haircuts.²

Although there is disagreement regarding the existence of a Pink Tax,³ state legislatures around the country have recently enacted or proposed legislation to prohibit discriminatory gender pricing. In 2020, New York enacted the first comprehensive Pink Tax ban,⁴ which creates an exception for when firms incur greater costs caused by differentiating their products or services based on