As a young-ish woman, I’ve grown up in an era where I can be a lawyer, I can be a doctor or I can be a businesswoman — limited by many of the same things that limit men, like resources and effort. And yes, I am uniquely burdened and blessed with the biological and emotional demands of starting a family. And those realities present me with certain choices. But in 2022, blatant employer sexism (“Women are for the kitchen, bye”) does not keep me out of my preferred occupation.
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And yet, California has sought to belittle the power that women today have amassed. In 2018, the Golden State felt it necessary to require that corporate boards include one to three women (if they can define one!), depending on the board’s size. Fortunately, on Monday, a California state court judge held that the law violates the California Constitution, which, like the U.S. Constitution, prohibits discrimination on the basis of sex.
Fortunately? Don’t women want an extra shot at a board seat? Well let’s think about the long run, shall we?
California’s quota system has nothing to do with rewarding the accomplishments of women, and everything to do with infantilizing us.
To touch on the law first, Article I, Section 7(a) of the California Constitution provides that a person cannot be “denied equal protection of the laws.” This legalese means that when California draws lines on the basis of things like race or sex (in other words, does not treat people equally) the law can only survive if the government has a “compelling” interest in the sex- or race-based law, the law is “necessary,” and the law is “narrowly tailored” to solve the problem. This is a stricter test than the U.S. Constitution’s equal protection clause, although California does not look at all sex-based classifications through this lens.
Providing preferences to women in order to remedy specific acts of past discrimination at a particular agency, for example, might pass that constitutional test — the government has a compelling interest in ending discrimination — but there’s no indication that companies in California were doing that. According to the court, California “was unable to present specific evidence of actual, unlawful discrimination against any specific woman by any specific corporation” subject to the law. Instead, the evidence showed California was seeking gender balancing for the future.
The state wanted a “critical mass” of women on boards. And why? Because of the unproven stereotype that women are “consensus builders” and less “risky” investors. But basing decisions on sex stereotypes is itself unlawful. And the government does not have a compelling interest in picking future winners and losers on the basis of their sex.
Even if it did, the court went on to find that the law was not necessary to achieving the state’s objective: “the evidence shows a natural progression toward adding more women to the boards of private sector corporation(s) over time.” And the court said the law was not appropriately tailored. If the state sought to address discrimination, throwing more women into a discriminatory environment is hardly a solution, after all.
Monday’s win for the California Constitution is also a win for women. Because the California law did not remedy discrimination, but merely created a token lady requirement in board rooms, the qualified and capable women selected to boards would have joined with a stigma attached to them. They would not be viewed as equal to the men, as they had a huge leg up in the selection process. That breeds an unhealthy environment where the women won’t have the same opportunities as men, because they are viewed as less capable.
But what about the woman who is not fully qualified and actually did land a spot based on her sex? Perhaps one woman is better off in that scenario, but millions of others are worse off. I highly doubt the women whose pensions are dependent on a company’s performance, or whose quality of life is dependent on the affordability and quality of the company’s goods, will be thrilled that the company rejected the experienced hire for the hire with certain chromosomes.
As the Independent Women’s Law Center argued in another challenge to the law, California’s “gender quotas do not benefit women generally but rather provide a perk for a small group of women who are already at the top of their professions.”
Celebrating Monday’s ruling is not to say we’ve reached equality nirvana. I’ll never forget the job application process my second year at Harvard Law School, when employers asked me hard-core legal questions but threw many of my male colleagues soft balls. Perhaps it’s because I attended a state college or because women had a statistically easier time getting into Harvard, who knows.
The court, for its part, found the difference in California company board makeup was attributed to “reasons other than actual discrimination, including the lack of open board seats, women’s networking issues, board propensity to select persons they already know, and boards preferences for choosing CEOs to fill open board positions.”
Some of these things, like “women’s networking issues,” are problems we can solve. And the people who are helpful to women’s equality will spend their time mentoring women, providing introductions, and treating women as equals.
