California's Unconstitutional Gender Quotas for Corporate Boards | Hacker News Reader

California's Unconstitutional Gender Quotas for Corporate Boards

reason.com

64 pointsayanai35 comments

At the risk of sounding insensitive, can one member of an all-male board just legally change their gender identity? Its like 2 forms filed with the clerk and maybe an appearance before a judge, then you are legally recognized by the state as a female whether you make any other life changes or not.

...is that really easier than finding a qualified woman?

The company can just do nothing and meet the quota. Whats easier than doing nothing if one board member happens to take the initiative?

And fraud...

It would be a pretty delicate line to walk, calling some peoples gender identities fraudulent and others legitimate just because in one case it is more convenient and in another case it takes a lot of courage.

Either it is everyone’s right or it is not.

I find quotas in bad taste, and somewhat lazy.

There is clearly an issue, but if we attempt to fix it with positive discrimination, we just create more issues.

A better way to approach the problem might be increased scrutiny (for discrimination) on boards/companies with significant gender bias, and increased penalties.

This would be harder to implement of course, but might go further to actually solving the issue.

There is a fundamental unanswered question in the area of gender discrimination, which is whether we can remedy past positive discrimination simply by removing overt discrimination going forward. That presupposes two things:

1) That you can actually get rid of gender bias among corporate boards that are almost entirely men;

2) That the system isn't path dependent (i.e. removing the positive discrimination will result in an outcome that is the same as would have been the outcome if the positive discrimination had never occurred).

Real-world systems are generally path-dependent. If a storm knocks down a fence, the fence doesn't go back to normal after the storm passes. If you bend a paperclip, it will stay bent after you let go.

Taking affirmative action off the table is tantamount to saying that society simply should not fix problems that result from the path-dependent effects of prior discrimination. Now that's debatable, but I don't think either side of that debate is "lazy."

FWIW, I think the California law is probably unconstitutional. (The Constitution doesn't always say what you want it to say!)

If a fence is knocked down you fix the fence.

Quotas suggest an approach that works more like “we know some fences are damaged in various ways, one way many of the fences are damaged is that they have water damage. So we’re going to replace 25% of the poles in all fences, with poles resistant to water damage.”

There’s an argument that if you show that there’s been gender discrimination, you should throw out the entire board and put a new one in place using a process more resistant to all forms of discrimination.

But applying a fix without strong evidence that discrimination has taken place does seem lazy, because you’re attempting to apply a blanket fix. It does nothing to address the underlying issues, and tries to apply a fix in cases where no issue exists.

Clearly, if you knock a fence down, you can't put the fence back up simply by saying "it is now unlawful to knock fences down". So: if not quotas, what repairs this fence?

If you find evidence of discrimination, you take action. What action exactly is up for debate. You could even go so far as replacing the board.

But not all, all male boards will be caused by discrimination, and adding a few females members will not solve this problem in many cases.

What do you do about the generations of discrimination (of "fences being knocked down") without repercussions? You can outlaw and punish the behavior now, but look around and notice how many fences are still standing. How do you fix that? That's the path-dependence problem Rayiner is talking about.

To what extent may we apply this principle? Was the promise of forty acres and a mule to formerly enslaved black farmers in the U.S. too "far"? Was the actual result of some land redistribution and the Freedmen's Bureau providing supplies and opportunities to freed slaves too far? Maybe you believe this. If not, could we establish where the threshold is? That is, what's the volume of harm-over-time a group would drop below before being disqualified for any positive rights?

How can you implement penalties for gender bias without introducing a threshold for an acceptable division of representation? And once that threshold is established, how exactly does it differ from a quota?

I guess the argument would be that you look at practices instead of outcomes, but that seems impossibly hard to implement

Let’s say you expect boards in general to be 50% male/female.

In case where this is not the case, and where it has not been the case for a number of years you might launch an investigation.

It might be that there are reasonable reasons in this instance. For example, the company was cofounded by two women or men, it’s a small company, and the composition of the board has never changed etc.

It might be that the company has a board with frequently changing members, but always selects male members. In that case, it’s easier to argue that discrimination has taken place. At which point you might launch an investigation and apply penalties etc.

The proposal is that a poor ratio results in stricter scrutiny, not a penelty. They would still need to investigate and find other evidence of illegal bias.

What about gay people? What about mexican people? Asian people?

Why not extend the law for these too?

"Based on the number of people that run your company, you're required to hire at least 1 women, 1 trans gender, 1 muslim and 1 person older than 60"

Sounds fun!

The alternative is that companies can select anyone for their board that they want and if they make bad choices, they have do deal with the consequences of their actions. Either with less money or lawsuits or collapse of the whole company.

I'm curious if this is likely to be struck down as unconstitutional in the California or Federal courts?

Also, why is this an acceptable attempt to address the issue of under represented groups in corporate boards? Should there be similar legislation for ethnic minorities in boards as well. If not, why is gender special in this regard?

For women that are appointed to boards as a consequence of this legislation, would it be unfair to consider those women to be 'diversity hires', and not appointed strictly on merit?

My understanding is that there is a solid constitutional challenge at the Federal level because the bill specifies designated headquarters rather than, for example, state of incorporation, which means that they are trying to enforce state law on national and international entities.

Regarding 'diversity hires', if the experience in Europe is any guide, qualified women will just be members of even more boards than they are now. There's no limit on the number of boards that a person can be a member of.

David Koch’s libertarian monthly dislikes policy to get women on boards. Shocker.

If this policy is truly counter-productive wrt its stated aim, I’d be interested to see that in the thoughts of people who have consistently given a damn about female representation on boards.

It’s less convincing when people who bark “regulation is evil” for a living find that “regulation is, once again, evil”.

Disliking using force to get women on boards != Disliking women on boards.

It's not as bad as it sounds: one more incentive for corporations to vote with their feet and move their HQ out of the great socialist state of california.

Nothing is socialist about this law, nor any other law California has. This law is stupid (and unconstitutional), but it has nothing to do with socialism.

Webster's dictionary defines socialism as a form of society in which government owns or controls major industries. This law controls what happens in corporate boards.

Um, no, that's not how Webster's defines it.

> government owns or controls

The definition is 'government (or the community) owns and controls'. Ownership by the masses is an absolute requirement for socialism, having a bit of control is not enough.

This law is socialist in the sense that having the corporate form in law is itself socialist, which is to say, not at all.

Like most bourgeois identity politics, it is an effort to defend capitalism by distracting from proletarian class interests by instead shifting power around within the bourgeoisie while encouraging the proletariat to see that as progress for the “disadvantaged” by way of identity groups that have little to do with where the structural disadvantages of the capitalist system actually fall.

I'm not sure how much of the outrage by defenders of “capitalism” is genuine ignorance, and how much is play-acting to help reinforce the charade.

I feel like this is just another step in a series of trends where we use legislation to enforce diversity, to the detriment of everyone involved. Let companies run their business as they please. If they don't want to hire women, they shouldn't have to. You see the same thing with hiring engineers. 50% goal for women engineers but that's not even possible given the current pipeline.

Dont forget about companies that are very open to appointing women, but can’t find any female candidates that surpass all the male candidates available at the moment.

Except for that it's not a quota, at least not in the sense that the word is used within the context of affirmative action, because there is no maximum cap set on the number of board members.

It is a quota - quotas need not be proportional to be quotas. From the dictionary:

“3 : a fixed number or percentage of minority group members or women needed to meet the requirements of affirmative action”

Of all the supreme court cases involving quotas, which have involved a mandate to admit a fixed number of minorities with an uncapped class size or whatever? The "dictionary says" isn't a very good argument if it's not aligned with case law.

The Supreme Court interprets law - it does not define words.

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