MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

California's Unconstitutional Gender Quotas for Corporate Boards

California's new law requiring corporate boards to have a minimum number of women is both unconstitutional and likely to do more harm than good.

California recently passed Senate Bill 826, a law requiring all publicly held corporations based in the state to have a minimum number of women on their boards. A corporation with four or fewer directors must have at least one woman on its board. If the board has five members, at least two women must be on it. If it has six or more, there must be at least three women. In his official signing statement, California Governor Jerry Brown praised the law, but also noted that "serious legal concerns have been raised" and that "these potential flaws may... prove fatal to its ultimate implementation." Governor Brown is right to worry. The law is clearly unconstitutional under current Supreme Court precedent. If it survives the nearly inevitable legal challenges, it is also likely to cause more harm than good.

The Supreme Court has long held that laws that discriminate on the basis of sex are subject to heightened "intermediate scrutiny" under the Equal Protection Clause of the Fourteenth Amendment. This test requires all such laws to be "substantially related" to an "important" state interest. In other words, the law must serve an important objective and there has to be a close fit between the discriminatory policy and the interest it supposedly advances, so as to prevent the state from engaging in any more sex discrimination than is actually needed to achieve its "important" objective.

In United States v. Virginia (1996), the Court arguably tightened up the standard still further, emphasizing that sex-discriminatory laws must have an "exceedingly persuasive justification." It is important to emphasize that this kind of heightened scrutiny applies even if the law is well-intentioned and not motivated invidious prejudice or by a desire to subordinate one gender to the other. Indeed, Indeed, Craig v. Boren (1976), the case where the Supreme Court first ruled that gender classifications are subject to heightened judicial scrutiny struck down an Oklahoma law that forbade 18-20 year old men, but not 18-20 year old women to buy 3.2% beer. No one could plausibly claim that the Oklahoma state legislature in the 1970s was some kind of matriarchy seeking to persecute men. But the law was invalidated anyway.

California's gender-quota for corporate boards clearly discriminates on the basis of sex, and it also clearly flunks intermediate scrutiny. The most obvious interest it might serve is overcoming the (very real) history of discrimination against women in the corporate world. That likely qualifies as an "important" state interest. But the fit between the end and the means is far too dubious to pass muster.

The law applies to all corporate boards of publicly traded firms, regardless of whether there is any significant recent history of discrimination at the firm, or in the industry in question. It also applies regardless of underlying distribution of interest in serving on boards in a given industry. It is hard to deny that some industries attract disproportionate interest from men, as opposed to women, and vice versa. Some of these differences in preferences are themselves the result of a history of sexism. But by no means all. For example, data suggest declining sexism may actually increase the proportion of women who avoid STEM fields in favor of pursuing other careers.

Even in the best-case scenario, the California law functions as a meat cleaver, rather than the scalpel demanded by heightened scrutiny. Imagine a population where ability and interest in serving on boards is equally distributed between men and women and all firms are completely nondiscriminatory (that is, they always hire the best-qualified applicants, regardless of gender). Even so, 18.75% of five-person boards will have one or zero women on them just by random chance, and thereby be in violation of the law.

A board with six or more members must have at least three women. Here too, even with a completely equal distribution of ability and interest combined with a complete lack of discrimination, many firms will run afoul of the law just by random chance. For example, 34% of six-person boards, 14.5% of eight-person boards, and 5.5% of ten-person boards will have two or fewer women, and thereby be in violation. A law that forces companies to engage in sex discrimination just to avoid the risk of liability caused by random chance variation is surely unconstitutional.

A narrowly-focused system of gender preferences to combat discrimination at firms with a demonstrated history of bias against women might potentially pass intermediate scrutiny. But Bill 826 goes far beyond that.

Other possible rationales for the law fare no better. For example, the law might be justified as an effort to promote useful "diversity" on corporate boards, that can improve the governance of firms. But, again, the quota rigidly applies to all publicly traded firms in all industries, regardless of the evidence on whether increased gender diversity would be useful there or not. Duke law professor Kimberly Krawiec, a leading academic expert on corporate boards, points out that evidence that board diversity improves governance is highly uncertain at best, and that such effects are not a solid justification for Bill 826.

California state courts have ruled that the state constitution applies "strict scrutiny" to gender classifications, an even tougher standard than federal intermediate scrutiny required by the federal Supreme Court's interpretation of the Equal Protection Clause. If strict scrutiny applies, Bill 826 is even more likely to be struck down.

Unconstitutional sex discrimination may not be the legal problem with Bill 826. Corporate law scholar Steve Bainbridge argues that it also violates the Dormant Commerce Clause. Stanford law Professor Joseph Grundfest outlines a variety of possible legal challenges to Bill 826 and urges affirmative action advocates to pursue other strategies to achieve their aims.

Even aside from constitutional problems, Bill 826 is an ill-conceived policy. Because it applies a rigid quota system to all firms across the board, it increases the chance that some will have to hire relatively poorly qualified candidates to meet the law's standards. As noted above, such a situation can occur even in an industry where the available talent is equally distributed between men and women, and hiring decisions are 100% free of sexism. To the extent that hiring less-qualified board members leads to a deterioration in the firm's performance, stockholders, employees, and consumers may end up worse off. To the extent that many of these people are women, Bill 826 could actually harm women far more than it benefits them. There are far more female stockholders, consumers, and workers who depend on these firms, than female (or male) applicants for positions on corporate boards.

In previous articles, blog posts, and amicus briefs, I have spoken out against forms of state-imposed sex discrimination favored by the political right, such as laws banning same-sex marriage and regulations excluding women from draft registration and combat positions in the armed forces. Bill 826 is favored by the opposite side of the political spectrum. Yet all of these laws share a common weakness: they discriminate on a large scale without anything approaching an adequate justification. Despite considerable progress, more remains to be done to open up traditionally male-dominated fields to women, and to establish a society where opportunities are no longer constrained by restrictive sex-role expectations. But rigid government-imposed quotas are not the right way to combat sexism.

UPDATE: As several readers have pointed out to me, the original version of this post included a calculation error with respect to the percentage of ten-member boards that, statistically speaking, would be in violation of the law in a world where talent is equally distributed by gender and hiring is completely free of sex discrimination. I apologize for this error (which I have now corrected) and thank those who caught it.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Eddy||

    "Bob, I remember you telling me you sometimes feel like a woman..."

    "No, boss, I don't remember."

    "You don't remember the conversation when I talked about putting you on the Board of Directors?"

    "Oh, yeah, sorry, boss, now I remember, and I would like to be called Bernice from now on."

  • TwelveInchPianist||

    Awesome! Now let's go celebrate. I know this great lesbian bar...

  • Abdul Abulbul Amir||

    Would an all female board of directors now not pass muster with this new law?

  • vek||

    NOPE!

  • NToJ||

    I think so, since the statute calls for a minimum number of women.

  • ned johnson||

    Diversity, mass immigration, open borders, is demanded ONLY wherever white people live!
    "Diversity is a strength" means "White people are a weakness"
    Its White Geno Cide
    Its ANTI WHITE

  • Rev. Arthur L. Kirkland||

    Cheer up, ned. You are blessed to have a white, male, gloriously homogeneous blog to provide some solace. It's just like old times.

  • Rev. Arthur L. Kirkland||

    Democrats should not impose rules should as this.

    Republicans -- such as the all-white, all-male lineup on one side of the Judiciary Committee, and the people who elected that bunch -- should not be such stale-thinking misogynists.

    Cue soundtrack.

  • Bored Lawyer||

    Lather. Rinse. Repeat.
    Lather. Rinse. Repeat.
    Lather. Rinse. Repeat.

  • Rev. Arthur L. Kirkland||

    You guys are welcome to keep clinging so long as you can.

  • Bored Lawyer||

    As I said.

  • PeteRR||

    I know you like to use the term "clinger" in this context, but hasn't it proved to be electoral poison? The 2010 election cost the Dems the House, the 2014 election the Senate, and for the first time in US history, in 2012 a POTUS was reelected with a smaller vote and electoral count margin.

    Condescending to half the population, while no doubt personally satisfying, has cost the Dems heavily.

  • Rev. Arthur L. Kirkland||

    Appeasing intolerance and ignorance is never the right way to go.

    Democrats need the right candidate, but they are already in a position from which former Pres. Obama would beat anything the Republicans could offer, and America's predictable electoral trends are ugly for conservatives so far as the eye can discern.

  • Michael Ejercito||

    So appeasing you would not be the right way to go.

    The New York Times appeasing Sarah Jeong is not the right way to go.

  • CE||

    You mean the trend where all the well known Dems are over 70 years old?
    Or the trend where evangelical Christians have 7 or 10 or 15 kids and liberals have 1?

  • Kirk Solo||

    What's that make-up of the DNC like? 95% male and white? maybe more?

  • vek||

    Not for long, they're running every white person they can out as fast as they can. Even white women are not being spared!

  • John C. Randolph||

    They still have Keith Ellison, but only because he beats women and they get off on that.

    -jcr

  • khm001||

    Don't be mad white guys are just better. If you want to succeed, step up. Or continue to blame white guys for your personal failings. Either is fine with me.

  • Brett Bellmore||

    Much as I like the result, incorporating the defeated ERA into the 14th amendment is total BS.

  • Eddy||

    Good point, it's hard to see how the 14th Amendment was understood to wipe out sex discrimination. The Supreme Court has just been making stuff up.

  • Eddy||

    In fact, I remember seeing a video (I forget where) in which a supporter of the ERA said there wasn't any need to worry about the amendment resulting in women being drafted - because there was a two-year delay and during that time the Vietnam War (the concern of the time) would be over. So they certainly thought they were changing a "sexist" status quo, not simply passing a declaratory amendment.

  • bernard11||

    Not hard at all.

    nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

  • Eddy||

    And Section 2 contemplated sex discrimination:

    "when the right to vote (etc) is denied to any of the *male* inhabitants of such state (etc)"

  • Eddy||

    Full context:

    "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state."

  • Eddy||

    "male inhabitants...such male citizens...male citizens" - three time's the charm!

    It took the 19th Amendment to undo all this maleness.

  • bernard11||

    I'm not sure what your point is, Eddy.

    My quote is from Section 1, yours are from other parts of the Amendment. What your quotes tell me is that that the drafters knew how to specify "male inhabitants" if they wanted to, and chose to specify "persons" instead in Section 1.

    I'd say your cites support my position.

  • Eddy||

    They tried to get the "14 Amendment = sex equality" interpretation from the very beginning of the 14th Amendment's existence, and for whatever reason, they kept losing.

    I don't regard this as a conclusive argument, because I'm open to the possibility of (say) the Supreme Court and Congress getting the Constitution wrong, but the counter-evidence ought (to my way of thinking) to be based on the public understanding of the 14th Amendment circa 1866-68.

    During that time, the women's rights people agreed the amendment was not a feminist charter - some opposing it on those grounds (especially the denial of voting rights), others accepting the setback in the name of defending rights for black people. I'm not aware of any contemporaneous understanding that it would eliminate legal distinctions between the sexes.

    Indeed, fast forward to the 19th Amendment, even with the new improved sex-neutral electorate they couldn't get ERA ratified, even though the ERA would simply have done what you think the 14th Amendment had already done.

    Did the virtually all-male electorate decide in 1866-68 to abolish legal distinctions based on sex, then 100 years later an electorate of men and women couldn't be persuaded to accomplish the same objective via what (to your way of thinking) would be a declaratory amendment?

    That's the difficulty with "living constitutionalism" - it bypasses the actual constitutional choices of the people in favor of theories of what the Constitution *should* do.

  • Eddy||

    Incidentally, my interpretation allows California to sex sex quotas on the boards of state-chartered corporations. How do you view the constitutional status of that law?

  • Eddy||

    to *set* sex quotas

  • Eddy||

    Here's Victoria Woodhull, soon *after* the 14th Amendment was ratified, urging Congress to use the amendment to enfranchise women. Spoiler alert: It didn't work at that time.

    http://history.house.gov/Histo.....committee/

  • bernard11||

    How do you view the constitutional status of that law?

    I don't know. I'd say it's dubious. I also think it's a dumb law.

  • Eddy||

    OK, so then I'm taking the "progressive" position and you're taking what the rev would call the "backward, can't-keep-up, superstitious" position.

    Ha ha, just busting your, ah, what's a nonsexist way to refer to them?

  • Eddy||

    Seriously, though, what if the law prescribed a minimum number of *male* positions on boards?

    (You may say that all corporations would be in compliance, but suppose a couple feminist artists' collectives somewhere happened to have all-women boards.)

  • MatthewSlyfield||

    "Indeed, fast forward to the 19th Amendment, even with the new improved sex-neutral electorate they couldn't get ERA ratified, even though the ERA would simply have done what you think the 14th Amendment had already done."

    Ever stop to consider that the ERA was defeated because people at that time thought it was redundant to the 14th?

  • Brett Bellmore||

    I'm not sure why I should take that seriously, since I was around and paying attention at the time. The ERA was defeated because its opponents claimed that it would end up requiring unisex bathrooms, and force the legalization of SSM.

    Proponents denounced this as a vile smear, (Keep in mind: These same people are today cheering Obergerfell.) but the public was persuaded, and the effort to ratify the amendment stalled.

    Nobody I ever encountered back then thought it was redundant; The effort to read it into the 14th only began after the ERA was soundly defeated.

  • Junkie||

    Brett, SSM?

  • perlchpr||

    "same sex marriage"

  • Eddy||

    Then we'd have the courts to thank for the defeat of ERA.

  • Lee Moore||

    The obvious implication of Section 2 contemplating sex discrimination, while Section 1 forbids states from "deny[ing] any person within its jurisdiction the equal protection of the laws" is that voting rights are not within the meaning of "protection of the laws."

    Fortunatly this also happens to be the natural meaning of "protection of the laws." Some laws protect you - eg laws entitling you to sue for recovery of your property when someone else has taken it; some laws don't protect - eg laws requiring you to pay 30% of your income to the federal government. Section 1 only concerns those laws that protect you - ie your person and your property.

  • Brett Bellmore||

    Yes, you'd have a very strong case of it being unconstitutional for a state to decide that they wouldn't enforce laws against assault where the victims were women.

    But the 14th amendment wouldn't enter into it where people were just discriminating in private sector decisions; It's directed against states choosing to place part of their population outside the protection of the law.

  • bernard11||

    At the time, married women were not allowed, in some states, to enter contracts, own property, file lawsuits, etc.

    They were categorized as second-class citizens in many respects, and this was the basis for decisions denying full equality under the 14th.

    But that is no longer the case. The assumption underlying the argument has disappeared, so the argument is no longer valid, IMO.

  • Eddy||

    These reforms, plus the 19th Amendment, were adopted through legislation and constitutional amendment.

    Does it follow from that the Supreme Court has suddenly developed the authority to order The Citadel to admit women, or to enforce the equal right of men to serve on corporate boards?

  • Michael Ejercito||

    Of course not.

    In fact, the Supreme Court upheld laws that prohibited women from voting or practicing law against 14th Amendment challenges.

    I believe the Supreme Court cases which held sex to be a classification deserving anything more stringent than rational basis scrutiny were wrongly decided.

    In this case, we need not revisit that issue, because California courts have interpreted the state equal protection clause (enacted in 1974) as to require strict scrutiny.

  • Eddy||

    "Having strictly scrutinized this law, we find it urgently addresses the NATIONAL EMERGENCY caused by women underrepresented on corporate boards. The law is upheld."

  • GabrielSyme||

    >"Having strictly scrutinized this law, we find it urgently addresses the NATIONAL EMERGENCY caused by women underrepresented on corporate boards. The law is upheld."

    Reminds me of the California cases about implied warranty of habitability requirements for landlords, where the opinion essentially read "Because there's a housing shortage going on RIGHT NOW it's essential that we define a NEW AND PERMANENT right for renters." Nevermind that requiring an implied warranty of habitability merely put extra expenses and requirements onto landlords which simply would have exacerbated a housing shortage.

    Found it, not sure how well I remembered the details though: CA court case

  • bernard11||

    In fact, the Supreme Court upheld laws that prohibited women from voting or practicing law against 14th Amendment challenges.

    would the Supreme Court today uphold a law prohibiting women from practicing law? Why or why not?

  • Eddy||

    The Supreme Court would strike down most sex-discriminatory laws.

    Even a totally originalist Supreme Court (i. e., not the court we have today) would not uphold such a law as you suppose, because the 19th Amendment would prevent it from being passed.

    Rather than call on the Justices to defend us from hypothetical laws which won't get passed, why not focus on the types of cases the Justices might actually consider - such as male-only draft registration, sex-segregated bathrooms, and the like?

  • Eddy||

    But if a Handmaid's Tale regime banned women from the professions, I don't think the Supreme Court's judicial philosophy would make much difference, because the Supreme Court itself wouldn't make much difference - the Handmaid's Tale regime would probably have replaced the Supreme Court with some sort of Sharia Court.

  • Drewski||

    I agree, of course, but the random chance argument is kind of bizarre. Corporate boards aren't selected at random. Never have been, never will be. Those percentages you quote mean bupkis, and I think detract from your point.

    I wonder how much this symbolic, doomed legislation cost to pass, and how much more will be wasted striking it down. :/ Makes me sad to see dollars that could do useful things being frivoled away.

  • Scarecrow Repair & Chippering||

    I don't think you understand statistics, randomness, or life itself. Choosing individual directors may not be random, but the board makeup bears a strong resemblance to it.

  • Drewski||

    I definitely don't understand life itself so if you have an inside scoop let me know. I'm fair-to-middlin' at biz intel and stats though and let me assure you that you're a serious moron if you think corporate boards resemble any population other than other corporate boards.

    Actually, scatch that - I've seen you comment before. Leave out everything after "serious moron".

  • Scarecrow Repair & Chippering||

    Still doesn't make them non-random as far as gender makeup. Even a moron like me can see that.

  • Careless||

    You're missing the whole point if you've missed that the California law supposes that the boards *should* be made of groups that have random gender compositions, except they're innumerate, so they couldn't figure out that there would be a significant percentage of boards that would flunk the law even if that's how they were formed.

  • gormadoc||

    Even if you assume the population of boards can be 50/50 (as California evidently does), as long as sex isn't a determiner of board membership some boards will have more women, meaning some have less. That's an easy way to understand how some boards will be deficient without any sex discrimination necessary.

  • WJack||

    Those who support putting women into infantry combat platoons are either completely clueless, or more likely are just being politically correct.

  • Rev. Arthur L. Kirkland||

    Wjack made similar arguments about those who supported admitting women to graduate schools, enabling women to vote, authorizing women to own property, and permitting women to wear pants suits in court without a note from a husband.

  • Brett Bellmore||

    All of which proves that women can carry as much weight as men, right?

  • bernard11||

    No. It proves that the objections are not based on anything rational.

    No doubt the average woman can't carry as much weight as the average man. So?

  • Jmaie||

    Any infantry experience there, Bernard?

  • Rev. Arthur L. Kirkland||

    Get off their lawns, bernard!

    This is their safe space! Their big, beautiful, white, male, 1950s-style safe space!.

    Don't make Prof. Volokh ban you.

  • M.L.||

    Actually, that has life or death consequences in combat situations, bernard.

  • Sarcastr0||

    That link is more notional than scientific. The requirements don't have any causality behind them; I'm not sure about the current requirements, but during Vietnam infantry fitness requirements were written descriptively, not prescriptively.

  • Absaroka||

    This article from West Point sez that WWII and Vietnam infantry loads averaged 80 to 100 lbs. Current loads are much higher than that (body armor + ??).

    It discusses a USMC requirement for infantry officers, to carry 152 pounds nine miles in 3 hours, which is criticized as unfair to women. But "it happens regularly in Afghanistan. Ferencik writes that he was required to carry almost 200 pounds of gear, armor, and weapons".

    TBH, the mind boggles at those numbers. I was into mountaineering back in the day, but the heaviest pack I ever carried in the mountains was a little over 100 lbs. It sure doesn't seem like a linear scale; I could and did carry 80 pounds all the time; adding another 30 really slowed me down. I can't imagine 150 to 200 pounds for 9 miles in 3 hours.

  • perlchpr||

    I can't imagine 150 to 200 pounds for 9 miles in 3 hours.

    I think it's grim, but there are people who do that sort of thing for fun.

  • Absaroka||

    I wandered around that site for a few minutes, and saw weights of 20 or 30 pounds, depending on body weight. Are there events where people are humping 150+ pounds for several miles for fun?

    Heck, I used to carry 80 pounds 10+ miles a day, at 10k+ feet elevation, breaking trail through snow, and build a snow cave at the end of the day. Those trips are some of the most fun I've ever had. My better half was carrying 50 pounds and also having a blast. That's not even close to carrying 100+ pounds.

    As an aside, here's an article on nepalese porters. Of note: "On average, the men carried nearly 90 percent of their body weight. ... women carried an average of 70 percent of their weight".

    And if you have a fixed load - a mortar base plate or whatever - you're interested in the absolute weight carrying ability, not % of body weight.

  • bernard11||

    Did you or Jmaie read my comment.

    If you did you didn't understand it.

    My point is that some women can carry the weight. Yes, it's a much smaller percentage than the percentage of men who can, but I thought we evaluated people as individuals.

    To answer Jmaie's question, I have as much military experience as the Commander-in-Chief. Do you have problems with his comments on military matters?

  • Variant||

    The sole objective of the military should be to win conflicts. It is *not* a place for experiments in social justice that ignore the laws of biology.

    If women can effectively fight and win as well as their male counterparts, let them. If they can't, don't.

  • bernard11||

    I agree.

  • vek||

    The problem for the SJWs is that if it were anything objective, perhaps 1-2% of front line troops MIGHT end up female. It wouldn't be some magical equal distribution like they want in la la land.

    The problem with that is, men have a built in instinct to protect women, which will create issues in combat situations. Also, women would require different facilities etc for a small fraction of the total force. Not efficient. Not to mention different supplies, like, DARE I SAY IT, tampons, PMS meds, etc. Oh, and did I forget to mention that women have periods of time, pardon the pun, where their hormones frequently take them out of commission via headaches, irrational behavior, etc? My mother, and several of my girlfriends LOST THEIR SHIT every month. Not all women do, but even the best of them have issues that are not desirable on the front line.

    The bottom line is women are garbage for combat duty. Yeah, you can throw in the best of the best and they'll be as good as a mediocre man... But the hassle they create is not worth the trouble. This is why no sane country in the entire history of the world has ever used female combat troops, but many have used them as nurses or in other ancillary tasks.

    It's pure SJW bullshit and makes no sense. ESPECIALLY not with lowered standards like they want. It WILL cost people their lives, all for BS grandstanding.

  • JoeBlow123||

    Disclaimer: I am in the Navy.

    There are a ton of very awesome women I work with. Some super terrible ones too. Cons for women that I see:

    - They get pregnant, they have to go. I know women that have gotten pregnant to get out of deployments. Not a lot, but not unusual either.
    - I find some women more petty and grudge holding. I find this much more often with women than men where a guy can get bitched out or have a disagreement, but get along fine afterword.

    That is more or less it. I think they are fine to serve in the Navy, we do not have to be super fit anyways to do our jobs for the most part. Army might be a bit different at least for the infantry.

    That being said... there are a ton of bitch ass men I would love to boot from the Navy too. Just total pansy litte fucks.

  • vek||

    It all comes down to one undeniable fact: men and women are inherently different physically AND mentally.

    This nonsense idea that we are the same is an outright lie. Look up any study ever done on physical or mental traits/preferences and you will see large and distinct differences between men and women.

    We overlap a touch in the middle on most traits, but when you add up all the differences it is massive. It's the difference between a Chihuahua and a German Shepherd. Both dogs, but entirely different animals.

    I will NEVER back down from this assertion in conversation with people anymore. I'm tired of lying and denying reality to be polite. This stuff has to be said, or else you get nonsense like women on front lines, quotas for boards, etc.

  • Martinned||

    I was wondering about the dormant commerce clause too, although I guess as long as California only applies this law to corporations incorporated in California (as opposed to all corporations doing business there), it's probably OK.

    That said, I think that the dormant commerce clause should be a much more prominent feature of US judicial review generally. How does it happen that the EU court of justice strikes down laws based on dormant commerce clause arguments - as "measures having equivalent effect (to an import tariff)" - much more frequently than US courts? I see cases all the time where the statute under attack is a clear candidate for the dormant commerce clause, yet the Parties don't even bring it up.

  • Careless||

    for the record, it applies to corporations with their headquarters in CA, not those incorporated there.

  • Martinned||

    That's marginally more troubling, but probably still OK imho.

  • Beldar||

    For the record, the operative language from the bill makes it applicable to all "publicly held domestic or foreign corporation[s] whose principal executive offices, according to the corporation's SEC 10-K form, are located in California." It doesn't apply to privately held corporations, whether incorporate in California or elsewhere. Many publicly held corporations choose to incorporate in Delaware but to maintain their principal executive offices elsewhere. I'm surprised, in fact, that the Cal Legislature didn't extend this bill to publicly held corporations incorporated in California but with their HQs elsewhere; as the chartering authority, arguably has a greater state interest in those companies than in companies chartered elsewhere who merely have their HQs in CA.

  • Scarecrow Repair & Chippering||

    If sex discrimination is illegal per some amendment or the other to state or federal constitution, then wouldn't the law be illegal to only concern itself with how many women are on the board? If a 10-man/0-women board is illegal, shouldn't a 10-woman/0-man board also be illegal?

  • Martinned||

    That's normally how such legislation is drafted, pretty much exactly for the reasons set out by prof. Somin. Not *Ye shalt have woman directors* but *Ye shalt have at least X share of each gender."

    Eg. this proposal for an EU directive: Member States shall ensure that listed companies in whose boards members of the under-represented sex hold less than 40 per cent of the non-executive director positions make the appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, by applying pre-established, clear, neutrally formulated and unambiguous criteria, in order to attain the said percentage at the latest by 1 January 2020 or at the latest by 1 January 2018 in case of listed companies which are public undertakings.

    It's odd that California hasn't done that. You'd think they have better lawyers than that.

  • Jim Logajan||

    (1) Can be bypassed when the next annual 10-K form is filed with "Address of principal executive offices" changed to an address outside California. Most of the corporations affected weren't even formed in California and would simply use an address in their formation state.

    (2) "For purposes of this subdivision, a female director having held a seat for at least a portion of the year shall not be a violation." ""Female" means an individual who self-identifies her gender as a woman, without regard to the individual's designated sex at birth." Not hard to see how those clauses can be used to avoid fines.

    (3) There is also the issue of "taking" - the stockholders would be fined for exercising their right to choose the representatives that manage their property.

  • BadLib||

    This year California added "Non Binary Gender" to birth certificates. It seems board seats held by those selecting such a designation should not be counted in the number of seats on the board when determining "how many seats" there are.

  • Careless||

    Yeah, can we get some lawyers to try to figure out what would be required to successfully argue that your corporate HQ was not in CA to evade this law?

  • Careless||

    Boeing is famous for making a small office in Chicago, but they really did send executives there

  • Number 2||

    "For purposes of this subdivision, a female director having held a seat for at least a portion of the year shall not be a violation." ""Female" means an individual who self-identifies her gender as a woman, without regard to the individual's designated sex at birth."

    My God, does the statute really contain these provisions? So a six-man board can comply with the law simply by having three men certify that they "self-identify" as women for one week every June? Wow. That's what I call intelligent drafting of legislation.

  • Beldar||

    The penalty (progressively increasing fines) is for failure to timely report. If you timely report, and your report says you're not in compliance, I see no penalty for THAT.

    If the required number of directors were to self-identify as female for a part of the reporting year -- say, on the day they attend the annual meeting and pick up their checks -- it appears that that would satisfy the statute, provided the company's report is timely filed.

    Regardless of what one thinks of the merits of this approach — and I'm in agreement with Prof. Somin about that, and thank him for this post — this is one of the most poorly drafted, poorly thought-through bills I've ever read.

  • Curly4||

    If a state can require a company based in that state to have s minimum number of women on the board of directors could it not also require it to have a minimum number based pm ethnicity as well? Also what happens if the company cannot find a person with the correct background and education to fill that spot? Have to hire a woman that is not qualified while passing over a man that is?

  • Martinned||

    Logically: "yes" and "yes"

  • Variant||

    Also could apply to the rank and file, right? Hey maybe this could be used to "correct" the gender discrepancy in Human Resources...

  • OpenBordersLiberal-tarian||

    One of my main complaints with recent court precedent is that it's been far too eager to strike down affirmative action. I think the Supreme Court made a terrible mistake when it ruled numerical quotas are unconstitutional. Hopefully when Democrats retake the White House and we get several more RBG-style justices, our legal system will be more sensitive to the importance of letting all people participate in American life, not just privileged straight white able-bodied cis-males.

    #Diversity
    #LibertariansForQuotas

  • Rev. Arthur L. Kirkland||

    Surely you make an exception for conservative professors at strong liberal-libertarian universities and colleges. Consult the Volokh Conspiracy archives if you do not understand the need for affirmative action for right-wing law professors.

  • santamonica811||

    "...Even in the best-case scenario, the California law functions as a meat cleaver, rather than the scalpel demanded by heightened scrutiny. Imagine a population where ability and interest in serving on boards is equally distributed between men and women and all firms are completely nondiscriminatory (that is, they always hire the best-qualified applicants, regardless of gender). Even so, 18.75% of five-person boards will have one or zero women on them just by random chance, and thereby be in violation of the law..."

    I agree with most of your post, and I agree with your conclusion that the law is unconstitutional (or, to be more specific, that it will eventually be ruled unconstitutional). But the above hypo accidentally overlooks that fact that, in this scenario, there will also be 18.5% of 5 person boards that will have zero or one MAN on them.

    The problem is not that some boards do not have many women on them is not the problem...that will happen 1 in 5 times just by chance (assuming your premise, of course...not in real life). The problem is that the opposite is not true...boards of directors where there are zero, or few, men, are vanishingly rare. *That* is the evidence of discrimination.

  • santamonica811||

    Excuse the typos...complaint # 137 about the lack of an edit button on this silly Reason site.

  • perlchpr||

    That must be a personal count, because sitewide I'm pretty sure the number is in the billions. :D

  • Brett Bellmore||

    That's evidence of discrimination only if men and women are similarly situated in all relevant regards, and have the same preferences and life histories.

    IOW, it isn't evidence of discrimination. It's barely evidence that you might want to look closer to see if there's actual evidence of discrimination.

  • Allutz||

    That isn't evidence of discrimination any more than there being 0 Asian women in the NBA is evidence of discrimination.

  • santamonica811||

    No offense, but did either of you bother to read what the OP wrote. He made a point of emphasizing, in his hypo:
    "...As noted above, such a situation can occur even in an industry where the available talent is equally distributed between men and women, and hiring decisions are 100% free of sexism. ..."

    Of course, in real life, there are countless examples of self-selection. Not a ton of women doing auto repair, although there are a decent number. Not a ton of men who teach elementary school (BTW, I *did* do this, before going to law school.), but there are a decent number. But all I did was point out that, in this "magical world of pure equality but still statistically-expected examples of low board representation," that it would end up with about the same number of low representation for both sexes. That is, I think, simple statistics. And if (again, ONLY in this fictitious world suggested by the hypo) there were not roughly similar examples of low-men boards, then something is hinky.

    Imagine that you have a part of "fair" dice, and you roll them 1,000 times: If you end up with 28 rolls of "2" and only 1 roll of "12" out of those 1,000 tests, then this is pretty strong evidence that something is hinky and you do Not, in fact, have a pair of 'fair' dice.

  • Careless||

    Yes. The hypothetical does not do what you want it to do. sorry.

  • gormadoc||

    Your model of the population sucks, as the chance of each board member be a woman is not 50%. That's why sampling it as boards doesn't do what you expect. Assuming discrimination is occurring while your model doesn't anything describe any population model but whether they prefer blue or yellow isn't very good statistics.

  • vek||

    First off, one need nothing more than self selection to see the outcomes we have.

    However, it's not just self selection. It's the fact that women do not have the same traits as men. They are not as aggressive, and the intelligence distribution is different.

    There are simply more men that have the objective qualifications for being towards the top of the hierarchy. Deal with it.

  • CE||

    Discrimination is a self-correcting problem in a free market economy.
    Companies that discriminate eventually lose out to companies that hire the best people regardless of irrelevant demographic factors.

  • vek||

    The problem is, that's exactly what we have... Which is why most companies are dominated by men, largely white, Asian, and Indian men.

    The problem is, some people don't want the best people to have the jobs... They think other people should get them because of the color of their skin, or because they sit down to pee.

  • Stephen Lathrop||

    I'm not lawyer, so please help out if you can. I thought one necessary trigger for heightened scrutiny was an issue which put exercise of individual rights in question. Am I mistaken?

  • M.L.||

    The infringement of a "fundamental" right is a sufficient condition, not a necessary condition, to trigger so-called "strict scrutiny." The other sufficient condition is a "suspect classification" which essentially means race, and race is what prompted these amendments. "Intermediate scrutiny" is a bastard in between category that was basically made up for sex-based distinctions.

  • Stephen Lathrop||

    That leaves me puzzled. I get the notion of suspect categories. But does that notion imply that everything to do with suspect categories—leaving questions of rights out of it altogether—is to be super-legislated by courts?

  • David Nieporent||

    I thought one necessary trigger for heightened scrutiny was an issue which put exercise of individual rights in question. Am I mistaken?

    Very much so.

  • Careless||

    so how many judges/Justices will vote that this is constitutional?

  • Bored Lawyer||

    What do Board members of public companies actually do? What are the qualifications, apart from owning a significant number of shares of stock?

  • Jim Logajan||

    Depends on the bylaws of the corporation. Generally they select the officers of the corporation (president, secretary, and treasurer being most common and often required by the state,) among other duties and responsibilities. Remove said officers if they so choose, depending on procedures in the bylaws. Golf.

    That's the theory, anyway.

  • Voize of Reazon||

    I would add that "owning a significant number of shares of stock", although a common characteristic of directors, generally is not a requirement imposed by law. E.g. Delaware law is relevant to many public corporations and explicitly says "Directors need not be stockholders unless so required by the certificate of incorporation or the bylaws. "

  • CE||

    At every company I've worked at, the board reviews the corporate strategy and progress toward that strategy quarterly, and offers experienced insight and pushback on dumb or overly optimistic ideas. It's not a ceremonial position.

  • Lee Moore||

    Prof Somin's article seems to veer more or less at random from gender to sex and back again.

    The law on its face requires gender quotas, not sex quotas. And so we require a coherent legal explanation as to why the law discriminates on the basis of sex. It's true of course that the great majority of people who identify as women are of the female sex, and so we may be into yarmulka territory. But it seems to me that writing a whole article about gender discrimination without even a passing reference to the need to join dots between gender and sex leaves the finished product looking rather slapdash.

  • Jason Cavanaugh||

    No, we don't need a coherent legal explanation as to why the law discriminates on the basis of sex.

    If you had a penis when you're born, you're a man. If you did not, you're a woman.

    There. Dots joined, just for you (and other Gender Studies "intellectuals").

  • Lee Moore||

    just for you (and other Gender Studies "intellectuals")

    I'm not a Gender Studies "intellectual". Nor am I a lawyer, but I do know that to explain a legal conclusion you need a legal explanation.

    The law in question explicitly defines "female" thus :

    "For purposes of this section, the following definitions apply:
    (1) "Female" means an individual who self-identifies her gender as a woman, without regard to the individual's designated sex at birth."

    and so explicitly disregards "designated sex at birth" which is gender studies speak for "the sex that was written down on the birth certificate as a result of the doctor's inspection of bodily features."

    Thus if Somin wants to argue that the law involves "sex" discrimination, he owes us an analysis of how we get there from a provision that explicitly disregards sex.

  • gormadoc||

    The majority of people, especially those who would be board members, identify their sex as equivalent to their gender.

    It's a bit like the European face-covering bans that don't mention religion but are understood to be targeting Muslims.

  • CE||

    And superheroes.

  • Number 2||

    Ok, Lee, I see your point, based on the plain language of the statute. But if that is so, a corporation can comply by appointing men to the board who are willing to say that, for at least a portion of the year, they "self-identify" as female. That renders the enactment an absurdity.

    On the other hand, every public statement issued about this law by its sponsors, and by those who voted in favor of it, explained that the intent was to increase the number of biological females on boards, not to populate boards with biological males self-identifying as females. And since, thanks to the opposition to Trump's so-called Muslim Ban, public statements about a law's supposed "intent" can now be used to override statutory language and to have an enactment stricken on constitutional grounds, this law is indeed about sex, not gender, and the Fourteenth Amendment argument is therefore well taken.

  • TwelveInchPianist||

    More work from the feminazis, I see.

  • Sarcastr0||

    Very much want a VC post on this issue.

  • Sarcastr0||

    Alas, I'll be on vacation off the grid next week so if there is a post, I'll not be on it :-(

  • AmosArch||

    Delusional Progressive: Theres no such thing as gender! (a bizarre hybrid concept between biological sex and imagination we dreamed up ourselves) It is just a meaningless incoherent useless concept! Everybody is the same! There is no A or B!

    Delusional Progressive Five minutes later: We must spend trillions of dollars and blood and sweat forcing everybody to equalize everything based on the previously mentioned meaningless incoherent useless concept! Everything must be equal A and equal B even though neither exist!

  • AmosArch||

    "Despite considerable progress, more remains to be done to open up traditionally male-dominated fields to women"

    Why? Oh no! The horror, women and men are inherently different! Kill it with fire!

  • Martinned||

    Indeed. Everybody knows men are inherently more able and willing to sit on boards of corporations, while women are inherently more able and willing to do laundry and change diapers.

  • Brett Bellmore||

    I'm sure there's some reason why my wife's entire dental assisting class consisted of women, despite a two year degree that leads to a pretty decent income being facially attractive to both sexes. I'm not going to assume the reason is sex discrimination, though, short of a demonstration of men applying for the program and getting rejected for no good reason.

    Probably the same reason all our tool room apprentices at work are men.

  • Martinned||

    O, there's definitely a reason. Just not necessarily a good/acceptable reason.

  • TwelveInchPianist||

    Well, a potential reason is that more women choose to be dental assistants, and more men choose to be tool room apprentices. Is that an acceptable reason?

  • MatthewSlyfield||

    To the people pushing "diversity" and anti-discrimination laws, no that is not an acceptable reason.

  • Sarcastr0||

    Or at least we should figure out why that choice is made, and not just accept it's because dudes genetically love tools and women love assisting dentists.

    You are both sort of talking around the whole 'women don't get paid as much largely because they don't push for jobs with long hours.'
    While it is true the 77 cents is BS because of this conflating factor, it is also true that we should look at the structure that demands such a sacrifice to determine if it's needed or is instead just an arbitrary winnowing factor. Which, being in environments where such is demanded, I think is a fair thing to look into.

  • Lee Moore||

    we should look at the structure that demands such a sacrifice to determine if it's needed or is instead just an arbitrary winnowing factor

    We who we ? Why would employers want to engage in arbitrary winnowing ? Though I can't lay my hands on it at present, there was a good piece of research out not long ago on the "long hours" hours thing, which demonstrated that there was nothing remotely arbitrary about premiums for long hours. It showed that the premium for longer hours was not uniform by any means but varied widely between different types of job.

    And the critical feature in determining which jobs carried high premiums for longer hours (and so higher male-female wage gaps) was whether the job involved tasks that were hard to pass to another worker to carry on with or finsh, or tasks that were easy to pass from worker to worker. (Which is pretty much what you would expect.)

  • Lee Moore||

    The poster child job for low premium for long hours, and consequently for low male - female pay gap was pharmacist. And it's obvious why. Pharmacists require a qualification. Women are just as good as men at acquiring qualifications. A qualified female pharmacist can't be replaced by three quarters of an eager unqualified man willing to work long hours. And the nature of the work is that it can be easily passed to the next person when it's time for you to go home. Because everything's recorded in the computer. You don't pass instructions to the next person by word of mouth.

    But if you're repairing electrical wires in rural Minnesota, you need to finish the job yourself. Because it took you three hours to drive here and if you just walk off the job at 5pm, a replacement worker is going to have to drive 3 hours to pick up the job.

  • Sarcastr0||

    Specific to pharmacist, I read that women were commonly pharmacists in the 1960s and 70s because it was a good fallback if your father didn't care for something as uncouth as a lady doctor. You can pay your own way more easily, and it was generally more socially acceptable. I didn't hear any stats, but I am surprised that was called out as a job that favored men.

    if you're repairing electrical wires in rural Minnesota, you need to finish the job yourself.
    I liked this paragraph, because it shows we are on the same page; you understand my thesis. And if people get het up about the gender rations for rural Minnesotan electricians, I think you have made a great case.

  • Lee Moore||

    Specific to pharmacist, ..... I am surprised that was called out as a job that favored men.

    It wasn't. Pharmacist is a job with lots of women working in it, with a low premium on long hours, and with a low gender pay gap. Opposite end of the spectrum to Minnesota electrical repair. The point being that there is a correlation between the gender pay gap in a job, and the premium on long hours in the job. The correlation reflecting the greater willingness of men to work longer hours causing them to move to jobs where they can earn a premium.

    Which is explained by the study as a perfectly rational operation of the market. Jobs that can't be put down at 5pm and either picked up again in the morning or passed seamlessly to the next shift pay more to people prepared to keep on working to finish them off. These tend to be men. Jobs that can be passed over easily don't have a big premium on long hours, attract lots of women and don't have a big gender pay gap.

    Consequently the idea that long hours are an unnecessary impostion by the patriarchy to ensure that women remain low paid relative to men is phoeey. Long hours earn premium rates only in those jobs where it's more productive to keep people working longer.

  • Lee Moore||

    The reason I stress the "we who we" question is that employers have a giant financial incentive to minimise their wage bill per unit of output. They have no incentive to pay men more than women for equivalent work, and no incentive to pay people who work long hours a premium if they could get the same work done just by hiring more people and not paying them a long hours premium. Moreover employers are in a position to know about a hundred times more than armchair commentators about how to organise work in their business and what is the most efficient use of their wage bill.

    I suspect most Reason readers, including Sarcastro, could write out twenty reasons why, in their own job, it's hard or inefficient to pass their own half finished work to someone else. And their employer coud probably produce another twenty. Even at the most banal level, it's obvious that if you have 100 workers working 8 hours a day, you only have to train 100 workers. If you have 200 working 4 hours a day, you have to train 200.

    Why on Earth would employers spend their rare leisure moments concocting arbitary schemes to pay out a higher wage bill than they need to ? Do they do things with the other parts of their cost base - energy, raw materials, property etc ?

  • Sarcastr0||

    Employers do have such incentives (although how strong they are varies; institutions aren't always great at properly flowing incentives down), but businesses and their management are not rational actors with perfect information. Productivity is hard to derive; picking someone who looks dedicated seems legit, even if it's not.

    Your appeal to the magic perfection of the market over some eggheads is common, but I don't think it's supported. There are lots and lots of examples of scholarship leading businesses to more profitable techniques (and vice versa, but that's not relevant here).

    Even at the most banal level, it's obvious that if you have 100 workers working 8 hours a day, you only have to train 100 workers. If you have 200 working 4 hours a day, you have to train 200.
    Nope. That's not obvious in the real world. While I respect the attempt, this ain't physics.
    humans are not robots - productivity varies beyond initial training costs,
    skills are not fungible,
    there are incentives against having full-time employees for some positions.

    Markets are a great engine for productivity. But the human being is a great engine for screwing things up; there are countless examples of businesses with hilarious wastes of energy, materials, money, and even wages.

  • Lee Moore||

    Your appeal to the magic perfection of the market over some eggheads is common, but I don't think it's supported. There are lots and lots of examples of scholarship leading businesses to more profitable techniques

    You are giving straw men a good kicking again. The market is not magically perfect. It is an algorithm. Which systematically rewards improvements in efficiency, ideas that work and the cojones to try them; and punishes stagnation and inefficiency. It's perfectly possible for everyone in the market to be doing something stupidly because no one has worked out how to do it better. It's quite possible that an egghead will come up with a good idea that someone will adopt and make out like a bandit.

    The point is that precisely because humans are excellent at screwing things up that an algorithm that rewards adopting good ideas and implementing them efficiently is such a boon for our species. That algorithm is not academia or the government bureaucracy.

  • Sarcastr0||

    We who we?
    Us. As a society. Not necessarily in order to make laws, but in order to know what we are doing and why.

    Why would employers want to engage in arbitrary winnowing? In deciding who to promote, sometimes you'll take an arbitrary metric just to have a metric.

    there was a good piece of research out not long ago on the "long hours" hours thing, which demonstrated that there was nothing remotely arbitrary about premiums for long hours.
    It's not super clear to me what that study's thesis was, but if it correlated long hours with productivity, I'm certainly interested in what that study was talking about. In my anecdotal experience, productivity and hours spent are not super correlated.

    whether the job involved tasks that were hard to pass to another worker to carry on with or finsh, or tasks that were easy to pass from worker to worker

    Interesting. And not cutting against my thesis. As a bureaucrat, I can tell you said ease can be a fundamental necessity, or it can be an arbitrary requirement.

  • Lee Moore||

    if it correlated long hours with productivity, I'm certainly interested in what that study was talking about. In my anecdotal experience, productivity and hours spent are not super correlated

    No it was not saying that long hours and productivity are always and necessarily correlated. It was comparing different sorts of job, to show that the pay premium on long hours (and hence the employers judgement of the productivity value of longer hours) varied according to the nature of the job. And that the gender pay gap varied correspondingly.

  • M.L.||

    Take out "able" and leave in "willing", and yes, actually this is proved by science. But not everyone knows it.

  • Lee Moore||

    Everybody knows men are inherently more able and willing to sit on boards of corporations, while women are inherently more able and willing to do laundry and change diapers.

    Apparently not "everybody" since you're obviously being sarcastic. Meanwhile there's a huge body of actual research that demonstrates that :

    (a) business success is associated with intelligence, ambition and willingness to put in veeeery loooong hours to the exclusion of other life goals

    (b) the sort of folk who combine those attributes are overwhelmingly male

    and, since you mention it

    (c) fathers find the smell of their baby's poo more disagreeable than mothers do, and a minority of mothers, around 20%, actually like the smell of their baby's poo.

  • perlchpr||

    and a minority of mothers, around 20%, actually like the smell of their baby's poo.

    Odd, but I can even see an evolutionary "reason" for it. Early detection of medical issues. Though who knows if that's the force behind it.

  • Voize of Reazon||

    Since shareholders elect the directors this law will require some interference in those elections. How would that likely be accomplished? Reserve some seats for females? The law doesn't say, but some European countries have similar restrictions, anyone know what the mechanics are there?

  • Martinned||

    Good question. Let me see... Just picking a few:

    Under Dutch law, members of the supervisory board co-opt, i.e. when someone resigns the remaining members appoint a new member. So the issue doesn't arise.

    Under s. 96(2) of the German Aktiengesetz, an election of board members that violates the minimum rule (30% men, 30% women) is null and void.

    Basically the same is true under art. L225-18-1 of the French Code de Commerce, except the minimum is 40% and it applies only to large corporations.

  • Voize of Reazon||

    Thanks. I suspect these would be difficult to translate into US practice, as they might conflict with laws of the state of incorporation that govern how the elections are held. There seem to be fewer constraints on how candidates are nominated, maybe that would be the primary control point: Nominate lots of women, hope for the best, and pay the fine if things don't work out.

  • apedad||

    Good idea but plainly the wrong approach and the law should/will be thrown out.

    What Cali needs to do is simply enforce existing discrimination laws.

    If women are discriminated against (i.e. refused a board position simply because they're a woman), then that is definitely actionable.

    Ensuring a level playing field (including protections and real punishments for sexual harassment), are the key points we ALL should striving for.

  • Lee Moore||

    Ensuring a level playing field (including protections and real punishments for sexual harassment), are the key points we ALL should striving for.

    No, we should be striving very hard to avoid that. Some playing fields slope from one end to the other. But this doesn't provide either team with an unfair advantage. (It may affect the game if the wind changes at half time, but that's just luck.)

    Meanwhile some quarterbacks are quicker thinking, less panicky, have better arms than others. Some folk who might have made great quarterbacks go into the law instead, Or broke their leg badly in High School. Some excellent receivers find themselves at a team with a useless quarterback. Life is full of ups and downs.

    A 'level playing field" is a meaningless expression and so striving to achieve it simply allows ideologues and authoritarians to use it to impose their will on others. There are certanly some unfairnesses about life - both natural endowments and social disadvantages that i think something could reasonably be done about without unreasonable assaults on the liberty of others to make the best of their own talents.

    " Ensuring a level playing field" is verbal jello. But not just verbal jello. It's a disguise for a much darker idea - "Your talents and abilites are at the disposal of the community. You will conform your activities to the needs of the community. And the community speaks through ME."

  • Sarcastr0||

    Really? The true lesson is, never try?

  • Lee Moore||

    No, the true lesson is "the devil is in the details"

    Most people would agree that it is wrong to discriminate unfairly or unreasonably against women. Or men. Or black people. Or white people. Or gay people. Or left handed people. Or blind people.

    But "wrong", "unfairly" and "unreasonably" involve all sorts of questions on which people have completely different opinions. So it's disingenuous to imply that we are all agreed on the principle. We're not, because the principle is utterly vague - just like "level playing field."

    What specific evil do you wish to combat with what specific remedy ?

    You've already suggested that "we" need to look into why employers often choose to pay a premium for workers who work long hours and that maybe "we" know better than the Marine Corps about what physical training levels they need to have. These are the sort of things that fall within the vast penumbras of "unfair" and "unreasonable" for which the slogan "level playing field" is a mere rhetorical flourish, of no use to anyone but a propagandist.

  • Sarcastr0||

    You think fairness is too vague a goal, so we should embrace, or at least condone, any inequities that currently exist.

    But, of course, your scope is wrong - there are specific inequities beyond the general social purpose of fairness. This law addresses what California sees as a specific inequity, for instance.

    You are asserting stuff about why women do badly. I'm saying we need to look behind that assertion. You argue meh, that's no one's job so we shouldn't do it. Conservatism via laziness doesn't seem a very appealing argument.

  • Variant||

    What they should do is begin mandating education and career preferences for everyone. Otherwise you end up confounded by a supply problem.

    If you want to control outcomes, you need to manage the inputs. Letting people choose their own path in life makes that difficult.

    Create a bureaucracy to oversee the decision making process. You could probably call it the Ministry of Plenty?

  • lhfry||

    Can we stop using the word "gender" to mean "sex?"

    http://thefederalist.com/2016/.....rd-gender/

  • Martinned||

    We could, except that in this case the law is quite clear that "gender" is what lawmakers had in mind.

  • M.L.||

    Unfortunately, the newspeak definition of "gender" is a fairly meaningless and sexist concept that only serves to obfuscate.

  • Sarcastr0||

    Funny, I don't really have much trouble distinguishing between gender, gender identity, and sex.

    Maybe it's a personal problem?

  • M.L.||

    I don't have any trouble distinguishing the newspeak, revisionist definition of "gender" from sex, either. The distinction is clear.

    The problem is that the concept itself is useless and applied nonsensically. It essentially means stereotypes.

  • TwelveInchPianist||

    Yeah. Gender is a social construct created to protect women from being harmed based on sex differences.

  • Sarcastr0||

    Maybe that's how it started in the 1970s, but these days all but the most vehement feminists recognize allowing for physical differences, if there is a bona fide requirement for such.

    The thing is a lot of these requirements turn out to arbitrary once you actually look into them, keeping women (and I'd imagine some men) out for no good reason.

  • Stephen Lathrop||

    Even, ". . . arbitrary once you actually look into them," is pretty vague.

    In practice, at fire departments across the land, it has come to mean that only the qualifications minimally required to get the job done can count. Anything beyond that, even if it suggests getting the job done better, is right out.

    By contrast, at Harvard and Yale, faculty qualifications are all at the top end of what's needed. There, what is right out is any suggestion that someone with lesser qualifications can minimally get the job done.

  • Sarcastr0||

    In practice, at fire departments across the land, it has come to mean that only the qualifications minimally required to get the job done can count. Anything beyond that, even if it suggests getting the job done better, is right out.

    I can think of at least a few ways to distinguish scholarship from firefighting that might explain why you go from a requirements threshold paradigm to a best value paradigm. Though I do agree that the supposed meritocracy in academia sucks and the rankings in practice don't really capture value.

  • perlchpr||

    I can think of at least a few ways to distinguish scholarship from firefighting that might explain why you go from a requirements threshold paradigm to a best value paradigm. Though I do agree that the supposed meritocracy in academia sucks and the rankings in practice don't really capture value.

    Yeah. Except I'd say you've got the loading backwards because if the college professor fucks up nobody dies.

  • perlchpr||

    I'll go ahead and admit up front that this one is personal for me. I don't want my little brother out on calls backed up by anyone, male or female, who just scraped the quals. I am strongly opposed to his partner being someone who is going to struggle in dragging his lanky ass back out of a burning building if need be.

  • Krayt||

    ===To the extent that hiring less-qualified board members leads to a deterioration in the firm's performance===

    That's the opposite of diversity's highly-valued promise, and is dangerous talk. You should take it back...if you know what's good for you.

  • Sarcastr0||

    When you can't really find enough threats to support the sinister picture you have of the opposition, just make some yourself, on their behalf!

  • Ron||

    fascism telling companies what they can do. lets not forget when Obama force GM to have a minimum number of union members on their board

  • MayneDeWayne||

    They should just put criminal men and women in the same prison, and stop with all this segregation already. Equality for all, right ladies?

  • CGN||

    The ACLU is a NAZI - like organism as it seeks to FORCE on others that which they don't want, need, nor is legal.

  • apedad||

    The ACLU doesn't force anybody to do anything.

    They do step in when they believe the government makes or enforces a law they feel is unconstitutional (spaces added): https:// www.aclu.org/ successes-american-civil-liberties -union

  • WJack||

    For reasons to obvious to point out women should not be in infantry combat platoons, or for that matter play on the line in the NFL . . . unless the plan is to be defeated. Anyone who has made a 12 mile speed march in full combat gear including rifle and ammo, or played one complete game of high school football is not apt to disagree. Others are victims of progressive educators, and/or clueless.

    Perhaps there are rare exceptions who might be physically capable - they would only prove the rule.

  • Michael Ejercito||

    So why have sex as a qualification at all?

  • apedad||

    Because weak-minded males can't stand to be reminded that they're weak-minded.

  • Lee Moore||

    It depends on whether you - and female recruits - would be happy with unisex facilities throughout their miitary careers. If the distribution of physical attributes results in say 1 woman passing physical muster for infantry combat, for every 999 men who pass, you certainly don't want the cost and admin hassle of having to make any special arrangements for females.

    It also seems to be the case that even the most suitable and committed females don't pass the physical training without the hurdles being surreptitiously lowered.

    There is also the problem of rape. Male PoWs do face some risk of rape, but it's relatively low. Female PoWs have a very high rape risk, rising to pretty much 100% if the enemy is not one of about a dozen super civilised countries. And PoW rape is not merely a personal risk that each soldier can weigh up - it also carries a propaganda risk. Female PoWs attract much more sympathy than male PoWs and consequently apply much greater pressure on politicians to rescue them, usually by making a deal with the other side. (I don't mean to imply that male PoWs attract no sympathy, far from it, but the intensity of media concern and pubic concern is ramped up tenfold for female captives.)

    The demand that women be allowed into combat infantry roles is pretty silly, since not only can virtually no women meet male standards, but since there are plenty of other combat roles that women can perform that don't require a male physique - eg radar operator on a ship.

  • Sarcastr0||

    It depends on whether you - and female recruits - would be happy with unisex facilities throughout their miitary careers.

    Same argument existed against integrating the armed forces.

    If there's not legit reason for the physical training requirements, then they should be lowered. Sure, infantry's gotta lug a bunch of stuff a long way; but how much stuff and how long, versus just 'hey actuary! We need a cutoff set to keep 40% of recruits.'

  • Lee Moore||

    How much stuff and how long depends on the combat situation, obviously. If entry requirements are that you achieve a physical competence level of 100, then for a lot of the time you may only face demands for 85. So all sorts of "just passed" people will be fine. But then there'll be a crisis and you're going to need 160. Lots of people who passed the 100 requirement won't be able to raise their game to 160. Peak requirements in combat greatly exceed training requrements for the obvious reason that you can't afford to train people at a 20% chance of death level of intensity.

    So when the army sets its requirements it has to take into account the quality of recruits and how many people it needs. It may cut the requrements if it's short of people. But that doesn't mean it's happy with the lowered standards, or that it thinks the troops with the lower standards have magically become as useful as the previous recruits who passed the higher standards. It just means the army has to put up wih what it can get. No different from hiring bartenders.

  • Sarcastr0||

    The military is pretty good at generating requirements that take into account risks and eventualities.

    They are also good at blindly following the way things have always been.

    Which is this threshold? From what I've read, it's more the second than the first. At least for the Marines.

  • scio me nihil scire||

    The current Army PT test has been around, with minor grading tweaks, since 1980 (although this is probably changing) *; the Marine test has been subject to somewhat more changes over the years (with augmentation in the form of the CFT and standards updated as recently as 2017).

    Sticking with the army for the moment (and the marine minimums are generally judged as being somewhat though not substantially more difficult although a direct comparison is a bit challenging). The standards for a typical new male recruit (17-21 age range) are 42 push-ups in 2 min, 53 sit ups in 2 min, and 2 miles (3219 meters) in 15:54 (in that order 10-20 min between events) for the 180-point minimum (out of 300).

    Frankly these are quite easy to pass, and they apply army-wide even in combat arms organizations. Now, in practice, anything below a 210 (or 240 in an combat arms unit) is likely to be a problem that will hinder career advancement, and even higher standards are expected in airborne or other specialized organizations.

  • scio me nihil scire||

    (continued)

    Even the ranger school minimums are 49 PU, 59 SU (still both in 2 min), 40:00 (this time for 5 miles or 8047 meters), and 6 cadenced pull-ups, are far from daunting. And can generally be achieved and surpassed in less than 90 days of sustained training effort. Although, in practice you'd be well advised to greatly exceed these before going given the constant physical demands of city week (actually five days) including a tortuous final ruck at the end, which tend to wipe out the group that passed the RPFT with anything close to the minimum.

    I guess this is all a long winded way of saying the current physical minimums are really quite low, perhaps even dangerously so for certain organizations, and this is only partially alleviated by the existence of higher informal standards (OTOH desk jockey career specialists who are unlikely to ever deploy and fire their weapons only once a year for qual purposes are also held to the same standard).

    Perhaps you have a difference of opinion (and if so I'd love to hear it).

    *A new PFT is currently being tested and directives issued for a proposed FY20 implementation. While it's advanced closer to the roll-out stage than any earlier effort, previous attempts have foundered largely because soldiers received similar grades regardless of which test they took, bringing into to question why the change was being implemented. Jury's still out as to whether this will succeed or just make for some more pretty OER bullets.

  • Stephen Lathrop||

    There is a lot to think about, Lee. One of the least reckoned-for requirements which combat imposes is ability to maintain effectiveness under conditions of starvation. And that also has proved to be one of the commoner practical stressors of soldiers in combat. Don't know, but I've been told, that women do notably better on that axis. Maybe other axes which advantage women haven't been considered while setting customary standards.

    It wouldn't surprise me to discover that on balance your are right on everything. But I don't think that means we know enough to say so with confidence, until we try more options and see how they go.

  • WJack||

    Lee,

    Of course you are entirely correct, but my experience is that pointing out facts to progressives is futile.

    Public defecation, urination, ministration, bathing, lust, jealously, strength, and endurance are just a few of the reasons for not putting women into infantry combat platoons , but for those with a progressive "education" there is no point in a discussion.

    Without relevant experience, and lacking common sense they "cling" to pre conceived notions with incredible tenacity.

  • Sarcastr0||

    ministration

  • DjDiverDan||

    The constitutional problems with this Act go beyond sex discrimination law under the Fourteenth Amendment. The right to elect directors is a property right of corporate shareholders, and by attempting to limit or restrict such right, the Act is an unconstitutional taking of that property right, and runs afoul of the Fifth Amendment. The same rather obvious shortcoming applies to Elizabeth Warren's completely idiotic Accountable Capitalism bill. Complain all you want about Trump's appalling ignorance of the Constitution, and I won't disagree. But don't try to pretend that the Democratic frontrunners are any improvement on that particular score.

  • Sarcastr0||

    Interesting application of the law, but not one that's obvious (although not obviously wrong either). Has the right to elect directors ever been applied as a right to elect whatever directors you wish?

  • ReaderY||

    The issue of corporate equality appears remarkably similar to the issue of marriage equality decided by the Supreme Court in Obergefell vs. Hodges, where the Supreme Court struck down a remarkably similar quota scheme (mandatory 50% requirement for each gender) in the composition of marriages.

    The arguments against corporate equality appear identical to those deemed not just irrational but animosity-based in Obergefell.

    The first irrational argument is that there is some sort of value to having "gender diversity." The Supreme Court saw it as nothing but raw homophobia in Obergefell, and there is no rational argument the result should be any different here. All evidence shows that all-male corporate boards are just as capable of managing corporations as all-male parents are of managing children. The idea that mere same-sex composition makes homosexual institutions somehow less capable than straight ones, that gay people somehow aren't as good as straight people, is pure anti-gay hate.

    Similarly, the idea that business equality somehow harms straight women is no more rational than the same rediculous idea stated about marriage equality. Vocationally gay men who mind their own business do straight women no more harm than domestically gay men who mind their own family.

  • AmosArch||

    Good point.
    Obergefall: Its no business of ours what or who consenting adults do their business with!
    Corporate Boards, Wedding cakes: Its our business what or who consenting adults get to do business with!

    The Party of Logic and Rationality folks.

  • ReaderY||

    (Cont)

    You would think a body like California's legislature would be as progressive about business equality as it was about marriage equality. It's astonishing to see them not only make virtually identical homophobic anti-equality legislation, but make virtually identical irrational homophobic anti-equality arguments to justify it. Corporations no more need mandatory heteronormative "diversity" than families do - indeed, business equality adds as much diversity to society as marriage equality. And same-sex corporations minding their own business do no more harm to straight people than same sex families minding theirs.

    There's no need to even address higher-level scrutiny. This legislation is based on nothing but hate. And animosity-based legislation doesn't pass rational basis.

    That's what Obergefell was all about.

  • FMurderSlaybraham||

    "Duke law professor Kimberly Krawiec, a leading academic expert on corporate boards, points out that evidence that board diversity improves governance is highly uncertain at best, and that such effects are not a solid justification for Bill 826."

    Insomuch as board diversity may improve governance, there's a bit of a chicken-and-egg effect as well. Are successful companies successful because of board diversity, or are successful companies able to recruit diverse board members because of their success? I know of one highly successful biotech company that tried and struggled to add women to their board for several years, because the small pool of qualified candidates were so highly fought over.

  • ||

    "...Insomuch as board diversity may improve governance, there's a bit of a chicken-and-egg effect as well. Are successful companies successful because of board diversity,"

    No they're not successful because they're 'diverse'. They're successful because whoever is in charge makes the right decisions and manages their affairs properly regardless of race, creed or whatever the heck is out there these days.

  • Carter Mitchell||

    Companies could also choose to incorporate in other, more rational states.

  • ||

    This won't end well.

    What are they thinking with this nonsense?

  • CE||

    Wow, half the board? Do they know what percentage of upper management at tech companies is female?

    This was discussed on CNBC and that "pro-business" network had no one who would mock this law or even criticize it for forcing companies to hire less qualified directors based on what is in their pants instead of in their heads and on their resumes.

    It's the state government telling private corporations they can't hire the best person for the job, and a direct quota system. It's almost as if they think a board of directors spot is just a ceremonial position to reward the well connected, instead of a vital governing body of experienced corporate leaders who can save companies from ill-informed decisions of upper management.

  • Eddy||

    Under your hypothesis, the career consequences of criticizing the law would not be worth the low stakes, so it's best to keep quiet on the assumption no real damage would be done?

  • AD-RtR/OS!||

    This will be solved quite rightly when all major corporations remove their headquarters from the State.

  • Freedomist||

    SCOTUS ruled states can't regulate articles of incorporation of corporations incorporated in other states, regardless of where the corporation is headquartered. Many corporations incorporate in Delaware because they don't impose burdensome regulations like those imposed in California.

  • Freedomist||

    Another compelling argument against this law is that it doesn't impose similar requirements on all-female boards and boards under-represented by men. So, boards with 5 directors should also include at least 2 males if the law requires at least 2 females. And boards with 6 or more directors should also include at least 3 males if the law requires at least 3 females. The CA legislature could easily fix this flaw with legislation, but others constitutional flaws could still doom it.

  • vek||

    Everyone here makes one fundamental flaw, and without correction it means it is impossible to come to a correct conclusion. You all assume men and women are equally capable. But we're not.

    It has been a well known fact since forever that men and women have different distributions of intelligence. This shows in measures of random facts (think state schooling tests), IQ tests, and any other test ever devised.

    Men have more people that score on the extra high end of the scale, as in geniuses, and at the low end, as in retards. There has never been a large scale study that found any other result. Ever. Not anywhere in the entire world. Women start to thin out fast at a little above 1 standard deviant, and drop like a rock by the time you hit 2 standards deviants and above. There are several fold more men than women by the time you reach high genius levels.

    The obvious implication for this is that one might expect men/women to do about equally well in jobs where people have about average IQs, say 1 standard deviant or lower. However as you get up the IQ scale you find progressively fewer and fewer women in esteemed positions... Exactly as would be predicted from the known difference in distributions.

    Hence at the top of basically every field of endeavor you find mostly men. It arguably sucks for women, but it is what it is. As punishment you also find more men that are retarded, or nearly so. This kinda balances it out.

  • vek||

    Until the world accepts the science on this little fact, and people just accept it for what it is, this nonsense about equal distribution or else it's sexism will keep coming up.

    That's not even to mention non intelligence traits which men also seem to be better on. Aggressiveness, assertiveness, self confidence, risk taking, etc. These are the things required to achieve excellence in most fields. Men score better on these traits than women.

    Women also outright admit in surveys they prefer a more balanced work/life balance. Men are far more likely to work more, and go all in on their career.

    You combine the intelligence gap, the non IQ trait gap, and the preference differences, and you end up with a world where men tend to dominate everything at the top... Exactly like one would expect in a meritocratic system.

    If anything we probably have far more women in positions of power than deserve to be there based on merit. Everybody is sooooo afraid of being sued, or not looking sufficiently progressive, that they hire hack females as window dressing.

    All of the above may sound rough, but reality is reality. Evolution created us this way (or God if that's your thing) and we have to accept it for what it is.

  • MaleMatters||

    Sadly, California doesn't care whether something is constitutional or not. It cares only that it serves women.

  • John C. Randolph||

    No, they only care about appearances, not results.

    -jcr

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online