Gender Quotas for Corporate Boards: Options for Legal Design in the United States
Yale University - Law School
November 21, 2013
Yale Law School, Public Law Research Paper No. 489
Recently, U.S. activists, scholars, and policy makers have turned their attention to a notable effort to address the large gender gap in top business management: gender quotas for corporate boards of directors. Gender quotas for corporate boards represent an intriguing option, even if the empirical case for quotas is not airtight.
Still, gender quotas may seem a cultural and legal oddity in the United States, a European transplant unlikely to take root here. Even if a quota could survive constitutional scrutiny, gender quotas for corporate boards seem to represent the kind of intrusive state regulation of business that our nation’s laissez faire ideology seems to reject. American ideals of free markets, investor choice, and employment at will sit uneasily, to put it mildly, with the notion that the state should dictate to investors the gender of the decisionmakers entrusted with the management of their money.
But a closer look at U.S. institutions reveals that the cultural and legal mismatch is not as severe as it may first appear. Gender quotas designed with sensitivity to exceptional U.S. institutions could fit comfortably with U.S. legal institutions. For instance, the federal tax code and securities law may offer stronger vehicles for implementation of a mandatory or voluntary effort than state corporate law. To take another example, the prominence of nonprofits in health care and education should prompt us to consider carefully whether some (or all) nonprofits should be subject to quotas as well and how nonprofits might be integrated into tax-based initiatives. Finally, thoughtful transition policies could address concerns about the scarcity of women in the pool of qualified director candidates.
Number of Pages in PDF File: 14
Keywords: Quotas, Corporate Boards, Corporate Directors, Gender, Anti-DIscrimination, Tax, Non-Profits
JEL Classification: H1, H2, H5
Date posted: November 29, 2013