The online news publication Vox recently brought attention to our lawsuit challenging California’s “woman quota” for the boards of publicly traded companies. We’re grateful that the article’s author, Alexia Fernández Campbell, engages in a thoughtful debate rather than resorting to ad hominem attacks.
Still, her article misstates key facts about the case that need clarifying—because they illustrate why California’s woman quota scheme is so deeply misguided.
Women are doing better in the boardroom than you’ve been led to believe.
The Vox article paints a pretty dismal picture of female representation. But in reality, women are on the rise in corporate boardrooms. That progress suggests California’s woman quota is a solution in search of a problem.
Representation on corporate boards recently increased for the seventh straight quarter in a row. And while women have not yet achieved perfect parity in board membership, they are near parity in hiring.
In Q2 2019, 42% of new board members across the top 3,000 corporations were women. This is due, in part, to pressure from institutional investors, who are exercising their right to vote to place more women on corporate boards. Over 20% of board members for those companies are women; 90% of boards have at least one woman.
You wouldn’t know that from California’s woman quota scheme, which suggests that women can’t make it without a handout. And that’s exactly the harm. The quota offers women a disempowering message that they are being discriminated against, and that the only way they can make it is for the government to put its thumb on the scale. The fact is, women are making sure and steady progress without a mandatory quota.
Well-intentioned laws can still perpetuate damaging stereotypes.
Our lawsuit criticizes the quota scheme as “condescending” toward women because it perpetuates a stereotype of women as victims. The Vox article questions how the quota scheme can be “condescending” when it “was intended to counteract the pervasive gender bias that has long kept women out of corner offices and boardrooms.” But as Supreme Court Justice and feminist icon Ruth Bader Ginsburg has observed, it’s often difficult to tell the difference between “helpful” and “condescending” sex-based laws.
Sex-based classifications of any kind can serve to perpetuate gender bias. Even those laws aimed at “helping” a woman can reinforce antiquated stereotypes about them, because they’re often based on perceptions about the way that “women are,” or what they are capable of. Lines drawn on the basis of sex, Justice Ginsburg said, “help keep women not on a pedestal, but in a cage.”
California’s woman quota not only embodies the destructive stereotype that women can’t make it to the boardroom without government help, it also threatens to undermine any gains that women make in the future. Women will now be seen as “quota hires” rather than deserving individuals, regardless of whether they made it due to the quota or not. The lawsuit therefore states that the quota is patronizing based on the well-recognized principle in equal protection jurisprudence that any time the government makes distinctions based on sex, it threatens the dignity of everyone.
That also explains why Vox is wrong to characterize the lawsuit as concerned with discrimination against men. The lawsuit isn’t concerned about “men’s rights,” it’s concerned about the danger to everyone that accompanies sex-based laws.
California’s woman quota scheme is aimed at manufacturing sex-based balance, not ending discrimination.
There’s a lot of talk in the Vox article about how best to counteract gender bias. But California’s quota scheme doesn’t even purport to remedy discrimination. Nor could it, as there’s no evidence that there is discrimination in every boardroom, at every company, across every industry in the entire state of California. Instead, the quota seeks parity for its own sake, and assumes that a gender-balanced workforce can be achieved only through a government mandate.
There’s no reason to think that even in a sex-blind world, absent any discrimination, women and men would be equally represented in every workplace. Representation will be based on the choices, characteristics, and preferences of individual men and women. The quota thus seeks to thwart the natural result of individual decisions.
Ultimately, the debate is not about whether women should be treated equally to men; the question is whether a quota scheme is a legitimate way to achieve equal opportunity. Our lawsuit argues that it’s not, and that it does more harm than good—for women, for men, and for the basic principle of equality under the law.