Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, November 27, 2017

Systemic Solutions for Sexual Harassment: Majority Women in the Board Room

A Bidder for the Weinstein Company Suggests a Rare Boardroom Set Up: A Majority Female Board

Maria Contreras-Sweet, who led the U.S. Small Business Administration under President Obama, has submitted a bid to acquire the Weinstein Co., the embattled film studio grappling with multiple allegations of sexual harassment or assault against its former co-chairman, Harvey Weinstein. It includes a group of investors with female leaders from private equity, venture capital and Hollywood, according to a source familiar with the deal. It proposes retaining the company's employees and has the blessing of lawyer Gloria Allred, who is representing some of Weinstein's accusers.

 

But one aspect of the bid is getting the most attention: Its proposal to install a majority-female board of directors, with Contreras-Sweet as chairman.

 

That's partly because, some researchers argue, having more women in leadership roles is a better answer to solving sexual harassment problems than installing more training programs or anti-harassment policies. Research has shown that having male-dominated management teams can lead to the tolerance of a sexualized environment, said Alexandra Kalev, a professor at Tel Aviv University and the co-author of a recent Harvard Business Review article on the topic. "Having more women in management increases the share of women who can work to promote women and create a working environment that allows women to flourish," she said.

 

Moreover, Kalev said, having more than just one or two token women on the board is important for female board members' contributions to be heard and for them to not be viewed as outsiders who represent a woman's point of view. She said research has shown that companies are actually more likely to adopt a diversity program when they have no women on the board than when 5 percent of the board is women. Having a single woman makes boards feel as though they've taken some action, and they "feel less of an urge to adopt programs that increase diversity."

 

It's not until they get to 15 or 20 percent of directors that they start to make a difference, Kalev said. "They're not seen as representing their gender anymore, but representing the board," she said. "It mainstreams women in positions of power."

 

Frequently cited research from 2006, based on interviews with female directors, also found that it seems to take at least three women for them to create "a critical mass where women are no longer seen as outsiders" and can influence decision-making.

 

I have written some about altering the gender balance on corporate boards, as well as balancing the power structures of other institutions such as legislative bodies, academia, and workplaces to reflect gender parity of 50/50 women.  Reconsidering the Remedy of Gender Quotas, Harvard J. Gender & Law Online (Nov. 2016).

 key feminist insight on these systemic problems has focused on the importance of power. The lack of women’s power as decision makers in the workplace, politics, or science means the perpetuation of the patriarchy (yes, patriarchy) and male privilege from the top down.
Generations at the top may be outdated, but they continue to transmit the same outmoded assumptions of women’s inferiority and disqualification, reinvigorating a new generation with the same discriminatory norms and practices.

November 27, 2017 in Business, Gender | Permalink | Comments (0)

Monday, November 20, 2017

Proposed Tax Plan Would Deny Business Deductions on Sexual Harassment Settlements if No Disclosure

What the Tax Senate Bill Would Do for Sexual Harassment Victims

An amendment to the tax reform bill working its way through Congress would deny businesses the ability to write off sexual harassment settlements as business expenses.

 

The Senate tax bill, passed by the Senate Finance Committee Thursday, includes an amendment that says businesses cannot deduct settlements, payouts, attorney fees or other expenses related to sexual harassment or sexual abuse, if such payments are subject to a nondisclosure agreement.

 

The amendment was proposed by New Jersey Democratic Senator Bob Menendez.

 

The proposal could affect sexual harassment settlements in a couple of ways. Businesses would no longer be allowed to write off legal settlements, fines and other expenses associated with sexual assault and harassment as "ordinary and necessary business expenses." And by denying these deductions, the amendment would make it costlier for companies to cover up misconduct.

 

"Right now a company can secretly settle allegations of sexual harassment in the workplace, silencing the victim and making it harder for other victims to come forward to seek justice," wrote Juan Pachon, spokesperson for Menendez, in an email to CNNMoney. "To add insult to injury, these same corporations can actually take a tax break for those payouts. Senator Menendez believes it's wrong for corporations who fail to protect their employees from sexual harassment to be able to write it off as an 'ordinary business expense."

 

Daniel Hemel, assistant professor of law at the University of Chicago law school, says the amendment's specific mention of non-disclosure agreements seems intended to disincentivize them -- a move that stops short of banning their use altogether.

 

"This is a pretty soft punishment if you're trying to deter closed agreements," he says. "I would think of this as largely symbolic legislation, but not exclusively so. It may change the way that some subset of sexual harassment cases are handled. But look, if an employer has a very strong preference for a closed agreement, then the tax deduction is unlikely to convince them to have an open agreement."

So at the end of the day businesses can still right off the settlements as long as they have an open, transparent agreement.  

The question is what impact what tax restrictions might have on settlements.  The availability of the deductions could actually helps victims at it increases or leverages the available monies employers have to settle the cases and provide compensation to victims.  

November 20, 2017 in Business, Legislation, Violence Against Women | Permalink | Comments (0)

Why Sexual Harassment Training Doesn't Work

Why Sexual Harassment Training Doesn't Stop Harassment

Only a handful of scientific studies have tested the effectiveness of sexual harassment training, which is nearly ubiquitous in American workplaces and intended to help protect workers as well as minimize an employer’s own legal and financial risks.

 

[R]esearchers don’t have much evidence that sexual harassment training is effective at certain key goals: reducing the number of incidents in a workplace; or helping to shift its culture toward one that takes the issue seriously.

 

Last year, the Equal Employment Opportunity Commission published a reportthat found only two research papers based on large-scale studies of anti-harassment training in workplaces (rather than in lab settings).

 

The research showed that the training does have benefits — particularly in increasing awareness of what constitutes sexual harassment and how it should be reported. But it also showed that some efforts had a negative effect, such as a study where male participants were more likely to blame the victim and less likely to report harassment.

 Congress is Making Harassment Trainings Mandatory. Science Shows They Don't Work.

That sentiment has also reached Capitol Hill, where harassment allegation reports recently emerged. "Going forward, the House will adopt a policy of mandatory anti-harassment and anti-discrimination training for all Members and staff,” House Speaker Paul Ryan (R-WI) said in a statement Tuesday. “Our goal is not only to raise awareness, but also make abundantly clear that harassment in any form has no place in this institution.”

 

There’s just one problem with this initiative: It’s probably not going to do anything to curb sexual harassment.

 

The research from sociology and organizational psychology on the billion-dollar anti-harassment training industry suggests these programs aren’t actually effective at stopping or preventing abuse.

 

“Over 90 percent of large US employers have harassment trainings in place, but it’s having very little effect, if no discernible effect, on the overall number of harassment complaints that are reported,” Harvard sociologist Frank Dobbin told Vox. “I don’t think we can sit around and wait for training to solve the problem.”

 

Experts who study workplace harassment view these trainings as more of a strategic defense against future lawsuits than a solution to a pervasive problem.

Lauren Edelman, What's the Point of Sexual Harassment Training? Often, to Protect Employers

Now that we’ve had something of an awakening about the pervasiveness of sexual harassment in the American workplace, the conversation is shifting to what to do about it. In many workplaces, the answer seems to be that we need mandatory training and clearer policies.

 

That seems to be the dominant thinking on Capitol Hill. After more than 1,500 former congressional aides signed a letter calling for action, the House and Senateadopted mandatory anti-harassment training for all lawmakers and staffers. This “sends a clear message: harassment of any kind is not and will not be tolerated in Congress,” Sen. Amy Klobuchar (Minn.), the ranking Democrat on the Senate Rules Committee, said in a statement.

 

Unfortunately, there is little evidence that training reduces sexual harassment. Rather, training programs, along with anti-harassment policies and reporting procedures, do more to shield employers from liability than to protect employees from harassment. And the clearest message they send is to the courts: Nothing to see here, folks.

November 20, 2017 in Business, Violence Against Women | Permalink | Comments (0)

Wednesday, October 25, 2017

The Lessons of Fox News for Reforming Sexual Harassment Law

Kate Webber Nuñez, Toxic Cultures Toxic Cultures Require a Stronger Cure: The Lessons of Fox News for Reforming Sexual Harassment Law, 122 Penn State L. Rev. (forthcoming):

A series of sexual harassment scandals have disrupted Fox News, causing the departure of some of its top executives and anchors. The upheaval at Fox News, however, came from public disclosure and social pressure; the actual law prohibiting harassment failed to deter or stop the rampant abuse at the network. Legal scholars have previously identified the problems with federal harassment law that could explain why widespread sexual harassment occurred at the highest levels of Fox News. Specifically, the existing literature details how women are forced to report harassment nearly immediately, despite the many career reasons not to, and yet are not fully protected against retaliation when they do. Scholars have also documented that if a victim’s claims do make it to court, the standard for proving harassment is a nearly insurmountable burden to overcome. These identified weaknesses in the law would seem to explain why it failed to act as a stronger deterrent to Fox News. Fox News, however, is headquartered in New York City, a jurisdiction with its own local anti-harassment law that is much more strongly worded. In fact, the New York City Human Rights Law removes each of the identified problems in federal harassment law. The example of Fox News therefore demonstrates that with entrenched harassing cultures, stronger anti-discrimination statutes that “fix” the identified weaknesses of current law are not a complete solution. Thus, this article advocates for two alternative means of strengthening harassment law: expanded use of systemic harassment claims and limits on the use of confidential settlements and mandatory arbitration agreements. This analysis is of particular relevance in light of recent sexual harassment scandals affecting companies such as Uber and The Weinstein Company.

October 25, 2017 in Business, Violence Against Women, Workplace | Permalink | Comments (0)

Tuesday, October 17, 2017

Discrimination 3.0: Women as Devalued Workers in the Gig Economy

Arianne Renan Barzilay & Anat Ben-David, Platform Inequality: Gender in the Gig Economy, 47 Seton Hall L. Rev. 393 (2017)

From the Intro:

Americans are making extra money renting out a spare room, designing websites, selling products they design themselves at home, or even driving their own car. This ‘on demand’ or so-called ‘gig economy’ is creating exciting opportunities and unleashing innovation but it’s also raising hard questions about workplace protections and what a good job will look like in the future. –Hillary Rodham Clinton

Abstract:

Laboring in the new economy has recently drawn tremendous social, legal, and political debate. The changes created by platform-facilitated labor are considered fundamental challenges to the future of work and are generating contestation regarding the proper classification of laborers as employees or independent contractors. Yet, despite this growing debate, attention to gender dimensions of such laboring is currently lacking. This Article considers the gendered promises and challenges that are associated with platform-facilitated labor, and provides an innovative empirical analysis of gender discrepancies in such labor; it conducts a case study of platform-facilitated labor using computational methods that capture some of the gendered interactions hosted by a digital platform.

These empirical findings demonstrate that although women work for more hours on the platform, women’s average hourly rates are significantly lower than men’s, averaging about 2/3 (two-thirds) of men’s rates. Such gaps in hourly rates persist even after controlling for feedback score, experience, occupational category, hours of work, and educational attainment. These findings suggest we are witnessing the remaking of women into devalued workers. They point to the new ways in which sex inequality is occurring in platform-facilitated labor. They suggest that we are beholding a third generation of sex inequality, termed “Discrimination 3.0,” in which discrimination is no longer merely a function of formal barriers or even implicit biases. The Article sketches Equality-by-Design (EbD) as a possible direction for future redress, through the enlisting of platform technology to enhance gender parity. In sum, this Article provides an empirical base and analysis for understanding the new ways sex inequality is taking hold in platform-facilitated labor.

October 17, 2017 in Business, Equal Employment | Permalink | Comments (0)

Monday, October 16, 2017

The Mansfield Rule for Gender Diversity in Hiring

ABA J, Law Firms Borrow a Concept from the NFL to Address a Lack of Diversity in their Leadership Ranks

The Mansfield rule was inspired by the National Football League’s Rooney rule—named after the late Pittsburgh Steelers owner Dan Rooney—which requires that at least one person of color be interviewed for head coach jobs. Arabella Mansfield was the first woman admitted to practice law in the United States, so the rule mandates that at least 30 percent of a firm’s candidates for leadership positions (defined as firm governance roles, equity partnerships, practice chair positions and seats on compensation committees) be women, attorneys of color or both.

 

According to a June press release, 44 major law firms will utilize the Mansfield rule, including two of the world’s largest firms by lawyer head count: Dentons and DLA Piper. Law firms that implement the rule over the next year will be “Mansfield certified” and can participate in a 2018 client forum, which will pair in-house lawyers with attorneys who are women or people of color for business development opportunities.

 

A group of partners from Am Law 200 law firms and a Stanford Law School student came up with the Mansfield rule idea at the 2016 Women in Law Hackathon. Besides the Diversity Lab, the hackathon was done in conjunction with the law school and Bloomberg Law. The original pitch only addressed women, and it only called for one woman to be considered for leadership choices.

 

According to Mark Helm, a Munger, Tolles & Olson partner who was part of the team that came up with the idea for the rule, it was modified to get more buy-in from law firms. If candidate pools have more women and people of color, he says, it might be easier to convince some decision-makers that the individuals could do the job in question.

 

“My firm has done relatively well with diversity, but at the same time I think it’s relative to other law firms,” he adds. “We all feel that the profession as a whole—including our firm—has a lot more to do.”

 

Indeed, in 2016 only 18.1 percent of equity partners were women, and 5.8 percent were racial or ethnic minorities, according to the National Association for Law Placement.

 

Rather than focus on current data about how many women and people of color are in leadership positions at law firms, the goal of the Mansfield rule project is to encourage the firms to be more mindful about their candidate pools, pipeline and succession planning, says Caren Ulrich Stacy, the Diversity Lab’s CEO. In a hackathon press release, the group is described as being focused on “innovative ways to close the gender gap and boost diversity in law firms and legal departments by leveraging data, behavioral science and design thinking.”    

See the previous post on the Mansfield Rule, The Mansfield Rule: Law Firms' Rooney Rule for Addressing Gender in Hiring

I have previously written about the Rooney Rule, and its limitations, as well as the benefits of targets like the Mansfield Rule.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).

October 16, 2017 in Business, Equal Employment | Permalink | Comments (0)

Friday, September 15, 2017

New Lawsuit Against Google Alleges Sex Discrimination as Women Placed into Lower-Level Jobs

Google Hit by Gender Pay Gap Lawsuit Seeking Class Action Status

Google is being sued for gender pay discrimination, turning up the heat on the Internet giant already facing allegations it shortchanges women.

 

Three female former Google employees are seeking class-action status for the complaint filed Thursday in San Francisco Superior Court.

 

The lawsuit comes as the Labor Department investigates systemic pay discrimination at Google. Google says its own analysis found no pay gap.

 

In a statement to USA TODAY, Google said it would review the lawsuit but disagreed with "the central allegations."

 

The lawsuit is being brought by three women — Kelly Ellis, Holly Pease and Kelli Wisuri — who say they quit Google after being placed at lower job levels, resulting in lower pay and denying them promotions and moves to other teams that would advance their careers.

 

The plaintiffs allege women at all levels of Google are paid less than men and that women are assigned to lower job tiers with less opportunity for upward mobility. 

 

“Women should have the same opportunities as men, and receive equal pay for substantially similar work,” Wisuri said in a statement. ***

 

Google spokeswoman Gina Scigliano said job levels and promotions are determined "through rigorous hiring and promotion committees, and must pass multiple levels of review, including checks to make sure there is no gender bias in these decisions." 

September 15, 2017 in Business, Equal Employment | Permalink | Comments (0)

Thursday, September 7, 2017

Women on Corporate Boards: A Comparative Appraisal of Italian Law

Paola Monaco &  Angelo Venchiarutti,  Women on Corporate Boards: An Appraisal of Italian Law, European Business Law Review (forthcoming).

Abstract

Both within and outside Europe, the number of women sitting on corporate boards is very low. In spite of the rising number of women earning post-graduate degrees in law, business and administration, only a minority of them ends up sitting on companies’ corporate boards. Against this context, the aim of this article is to study the Italian approach to this problem, and to set it against the framework of the solutions adopted in Europe. The articles starts by analyzing the initiatives carried out by the European Union with the goal of promoting equal treatment between genders on corporate boards. After the survey of the soft and hard measures undertaken by some European countries to tackle gender imbalance on boards, the paper will analyze the legislative reform recently adopted by the Italian Parliament. The conclusion will focus on the effectiveness of European positive actions to tackle gender inequality in corporate boards.

September 7, 2017 in Business, International, Legislation | Permalink | Comments (0)

Wednesday, August 9, 2017

Google Fires Engineer Who Opposed Gender Diversity in Workplace

Following up on the blog post Google Engineer Says Gender Diversity Initiatives Bad Idea ...  Google has now fired the engineer.  Surprising, but encouraging to see a company put support behind what are often shallow commitments to equalized workplaces.  

The company said the engineer's memo -- opposing gender diversity initiatives because of women's "neuroticism" and because women biologically prefer jobs with people and emotion rather than tech jobs with "systemic" thinking -- was "harmful" to the workplace.  The engineer has threatened to sue.

Updated Aug. 29. 

August 9, 2017 in Business, Equal Employment | Permalink | Comments (0)

Monday, August 7, 2017

Google Engineer Says Gender Diversity Initiatives Bad Idea

Diversity Programs at Google Discriminatory, Engineer Claims in Anti-Diversity Memo

A document written by an unnamed senior software engineer at Google suggesting the company encourage "ideological" rather than gender diversity, is generating anger within the company and in Silicon Valley.

Titled "Google's Ideological Echo Chamber," the male author wrote that women don't make up 50% of the company's tech and leadership positions not because of sexism but because of differences in their preferences and abilities. 

He also writes that the company's focus on diversity tends to alienate conservatives, which he believes is bad for business as conservatives tend to be more conscientious, a trait that is required for "much of the drudgery and maintenance work characteristic of a mature company."

The essay comes as Google is engaged in an ongoing effort to try to get more women and minorities into technical and leadership jobs, and as the Mountain View-based company is being investigated by the Labor Department over allegations that it does not pay men and women equally. ***

The 10-page manifesto against Google's diversity initiatives appears to have first been circulated internally at the company Friday. It was initially reported by Motherboard.

On Saturday Gizmodo published the full document, prompting a flood of angry tweets and some supporting the writer's right to free speech.

The overall tone of the essay is calm. The author acknowledges that there is bias that holds women back in tech and leadership. He doesn't suggest that women aren't capable of doing technical work but rather that the differences between men and women should be acknowledged. 

He states that women tend to be more interested in people rather than things, "empathizing vs. systemizing," whereas men have a higher driver for status and so tend to end up in leadership positions.

He also says that on average, women have more "neuroticism," as defined as "higher anxiety, lower stress tolerance."

The author doesn't believe that Google should engage in social engineering just to make its jobs equally appealing to men and women, calling "discriminatory" programs at the company available only to women and minorities.

August 7, 2017 in Business, Equal Employment | Permalink | Comments (0)

Monday, July 17, 2017

Judge Narrows Scope of Government Data Request in Google Gender Pay Audit

Google Must Cough Up Contact Info for 8000 Employees in Gender Discrimination Case: But Judge Narrows Scope of US Labor Dept Request 

Google has been ordered to hand over personal details of 8,000 employees as part of an ongoing US Labor Department investigation into equal pay.

 

A judge provisionally ruled Friday that Google must provide names, personal addresses, telephone numbers and email addresses to the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) for 5,000 employees, upon request. After the OFCCP has interviewed a selection of these employees, it may request an additional 3,000.

 

The case began in January, when the OFCCP filed a lawsuit requesting salary structure details and employee information from Google in order to verify that the company is meeting Executive Order 11246, which prohibits federal contracts from discrimination based on race, colour, religion, sex or national origin, and gives the OFCCP authority to verify.

 

Google insists it has "closed the gender pay gap globally" and according to its *cough* internal *cough* annual analysis, provides "equal pay across races in the US".

 

But the Labor Department has said that it had "found systematic compensation disparities against women pretty much across the workforce" and requires additional information from the tech giant.

The judge's order is here, at Dept of Labor v. Google, Recommended Decision and Order (July 14, 2017). It explains the nature of the administrative audit.

I begin with an explanation of what this case is and what it is not. The Office of Federal
Contract Compliance Programs is the agency of the Department of Labor charged with auditing government contractors to determine whether they are complying with certain contractually imposed anti-discrimination and affirmative action obligations. OFCCP’s auditing activities generally are not “complaint-driven”; rather, OFCCP opens audits of federal contractors based on neutral criteria. That is how OFCCP selected Google for this audit, not because any of the more than 25,000 potentially affected employees (or anyone else) filed a complaint with OFCCP.

When OFCCP determines after an audit that a government contractor is discriminating or failing to meet affirmative action obligations, it must try to resolve the violation voluntarily and without litigation. According to OFCCP’s Regional Director (Pacific Region), these efforts lead to voluntary resolutions of about 99 percent of OFCCP’s cases.

See also:

July 17, 2017 in Business, Equal Employment, Pop Culture | Permalink | Comments (0)

Tuesday, March 28, 2017

Flexibility as the Key to Women's Leadership and Workplace Success

Flexibility Will Close the Women's Leadership Gap

New data shows that women are underrepresented in the highest levels of leadership because they are being forced out by dated workplace structures. These structures, which do not represent the modern needs of a two-income household labor force, are causing millions of talented employees to fail, especially working mothers—and the result is massive attrition at every point in the leadership pipeline.

 

Contrary to popular belief, the majority of women who leave the corporate workforce actually want to stay. A recent Bain study showed that women value flexibility over and above any other factor in their career search, including compensation, title, and location. Of the 30 percent of credentialed women who drop out of the workforce, 70percent say they would have stayed if they had access to flexibility. This amounts to 6.6 million women—enough to dramatically increase the number of women in leadership and rapidly accelerate the advancement of corporate gender equality.

 

Strategic workplace flexibility is the easiest and most cost effective way to retain women in the workplace and advance them to positions of leadership over time.

 

While many companies have demonstrated a commitment to helping women advance to positions of leadership, they remain largely unsuccessful because strategic flexibility is not a key component of their programming. When companies do provide flexibility programs, they are often underutilized or fail entirely because flexibility is misunderstood. Women tend to not take advantage of existing flexibility policies due to a fear that their requests will make them appear less committed and a concern that flexibility policies will not be faithfully implemented.

 

Flexibility isn’t simply working from home via video conference or a lifestyle perk like free cereal; it’s a fundamental shift in the way we think about and expect our employees to work. Flexibility does not alter a job’s scope of responsibilities or expected results—it simply modifies the existing agreement between the employer and employee to increase compatibility. And when it’s negotiated in a standardized context, it normalizes the conversation around flexibility and eliminates the bias or discomfort women tend to feel during the interview and hiring process.

March 28, 2017 in Business, Work/life, Workplace | Permalink | Comments (0)

Tuesday, March 14, 2017

Job Segregation as the Cause of Continued Unequal Pay and Some Employer Strategies to Redress

Tesla's Sexism Case Exposes a Major Reason for the Gender Gap

Despite progress, the U.S. labor market continues to be segregated by gender, one of the most significant factors contributing to the gender wage gap. The majority of women work in jobs primarily done by other women, such as nursing, and an even larger share of men work in jobs primarily done by other men, such as engineering. And, female-dominated jobs tend to pay much less, often despite similar skill requirements, than male-dominated ones. In fact, renowned economists Francine Blau and Lawrence Kahn estimate that about half of the overall gender wage gap in the economy is due to job segregation: Women make 80 cents for every dollar earned by a man, but of the 20 percentage points that stand between women and equal pay, about 10 percentage points are due to this segregation in the labor market (the rest of the gap is due to a combination of factors like education, time in the workforce, and yes, discrimination).*

 

Fortunately, some high-tech companies are taking the lead, voluntarily revealing the gender or racial composition of their workforce (like Facebook and Google), conducting internal pay audits (like Pinterest and Redfin), and spending money to bring women’s pay up (Salesforce and Intel).

Research from the Institute for Women’s Policy Research points to some lessons tech companies can learn before they ever reach the courtroom. Basic and relatively easy company practices that improve pay and promotion outcomes, such as posting all job openings, using panels (rather than a single supervisor) to determine pay increases and promotions, and making expectations for jobs clear and transparent to all are a great first step.

March 14, 2017 in Business, Equal Employment | Permalink | Comments (0)

Wednesday, February 22, 2017

Empirical Research on Gender Diversity of Dutch Corporate Boards as Statutorily Required

Rosalien Diepeveen, Tineke Lambooy & Remko Renes, The Two-Pronged Approach of the (Semi) Legal Norms on Gender Diversity: Exploratory Empirical Research on Corporate Boards of Dutch Listed Companies

In this article, two different perspectives on diversity and gender equality in boards of listed companies in The Netherlands are discussed: first, the diversity perspective which focuses on better decision-making capabilities of gender-diverse teams (i.e. the economic perspective), and second, the gender equality perspective which aims to realise gender equality in all levels of society pursuant to international human rights treaties and national law (i.e. the rights-based perspective).

This two-pronged approach is presented as follows: on the basis of a literature study and desk research, the authors first set out the views discussed in the extant literature on the economic perspective and, next, the legal context applicable to the rights-based perspective. Subsequently, the application in practice of these two perspectives are tested by analysing unique empirical data collected by the authors from listed companies in The Netherlands.

The empirical data are collected in two studies assigned by the Dutch Corporate Governance Code Monitoring Committee (the Committee) to the authors in 2014 and 2015. This Committee annually reports on the compliance by listed companies with the Dutch Corporate Governance Code (the Code). One of the areas of concern is diversity in corporate boards as, since 2008, the Code requires that companies have a policy to realise a diverse board composition, gender being one of the indicators. The Code applies on a comply or explain basis.

The empirical study revealed that Dutch companies, in their annual reporting on their board diversity policies, often referred to the Dutch corporate law provision concerning the gender quota. This provision requires of large companies that their corporate boards (both the board of directors and the supervisory board) comprise at least 30 per cent women and at least 30 per cent men. Like the Code, this legal provision also applies on a comply or explain basis. This law had been enacted for a limited period of time, i.e. from 2013 until 2016, but a legislative proposal is pending to extend the application of this quota provision until 2020.

The authors discovered that the two perspectives (i.e. the economic and the rights-based perspectives) are often mixed up by companies, government representatives and institutions, and other parties (together: stakeholders) who deal with the theme of (gender) diversity in corporate boards. In this article, the authors elaborate on these two perspectives, raise questions in regard to the application of the (semi-)legal norms in this area, and share innovative findings regarding the measures taken by progressive Dutch listed companies in order to realise a diverse board composition, and in particular to comply with the statutory quota on female board representation.

February 22, 2017 in Business, International | Permalink | Comments (0)

Monday, January 9, 2017

Reconsidering the Remedy of Gender Quotas in the US

I have just published the essay Reconsidering the Remedy of Gender Quotas, Harv. J. Gender & Law (online) (Nov. 2016).  It takes on the question of the legality of instituting a more permanent, structural reform for gender equality through the judicial mechanism of quotas.

Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial Band-Aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding, resistant systemic sex discrimination.5 And the way to achieve this goal of gender parity might be quotas.

 

“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Canadian Prime Minister Justin Trudeau's cabinet decision of 50/50 shows.

 

A quota remedy would require gender parity—proportional representation of women in positions of power. The proportion would match the gender distribution of the general population; so women as about 51% of the population should constitute 51% of the managers, boards, CEOs, legislatures, and law firm partners, as well as STEM majors and law students. Judges too, would then be 51% women (although Justice Ruth Bader Ginsburg suggested she would not stop there, opining that the Supreme Court would have the right number of women justices “[w]hen there are nine.”).

 

This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representatives to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.

 

Gender quotas have been highlighted in several places recently, including:

    United Nations "Planet 50-50 by 2030" Campaign for Women's Rights

    United Nations Council

    The Newsweek writers' settlement portrayed in the TV series (and book) "Good Girls Revolt"

    The ABA Rule mandating diverse CLE panels

    A lawsuit challenging the gender and minority quotas for the Texas State Bar Board

    Federal contracts to small business owners

 

 

January 9, 2017 in Business, Constitutional, Courts, International, SCOTUS | Permalink | Comments (0)

Friday, May 13, 2016

European Corporate Board Quotas are Working

You Know Those Quotas for Female Board Members in Europe? They're Working

Business people tend to hate governments telling them what to do, and the quotas on female board members imposed on companies by a handful of European countries are no different. But here’s the thing: If a goal of the quotas is to bring more women into the top ranks of business, they seem to be working.

 

That’s the view of Rajeev Vasudeva, the CEO of Egon Zehnder, one of Europe’s largest executive search firms. Vasuveda said he’s no fan of quotas, but concedes they’re having an impact. “I’m not a great supporter of quotas but in this case it’s making difference,” he said in an interview. “It has changed the conversation—it clearly has been put on the agenda of companies.”

 

Norway was the first to introduce quotas for women in 2003, requiring that public companies fill at least 40% of their board seats or risk dissolution. Iceland, Spain and France followed with 40% targets—although with less severe penalties—and other countries have lower thresholds. Last year, Germany became the largest economy to impose a quota, mandating 30% of supervisory board seats be filled by women

May 13, 2016 in Business, International | Permalink | Comments (0)

Wednesday, December 2, 2015

New SSRN eJournal "Female Leadership Challenges" Blends Law, Finance & Economics

From the announcement:

We are pleased to announce a new MRN Leadership Research Network (MRN-LRN) Sponsored Subject Matter eJournal - Female Leadership Challenges eJournal, sponsored by Women in Leadership Research Network at UNSW Business School.

Sponsored by...
Women in Leadership Research Network
at UNSW Business School

Women in Leadership Research Network Logo

FEMALE LEADERSHIP CHALLENGES eJOURNAL
View Papers: http://ssrn.com/link/Female-Leadership-Challenges.html
Subscribe: http://hq.ssrn.com/jourInvite.cfm?link=Female-Leadership-Challenges

Editor: Renée B. Adams, Professor, University of New South Wales, Director, Financial Research Network (FIRN), Research Associate, European Corporate Governance Institute (ECGI).

Sponsor: The Women in Leadership Research Network connects finance, economics and law faculty at UNSW with other academics and organizations interested in fresh thinking and creative solutions to female leadership challenges.

Description: This eJournal includes working and accepted paper abstracts and other scholarly works, such as book chapters and review articles, on the topic of the barriers to and the consequences of female leadership. We are interested in the role of culture, stereotypes and household production in women's career progression. We are interested in how barriers to female leadership and selection shape female leadership outcomes. We are interested in the role policy has to play in overcoming these barriers. We welcome fresh thinking on female leadership challenges from any discipline, particularly work that takes causal identification seriously.

Advisory Board
ROSALIND DIXON
Professor, University of New South Wales (UNSW) - Faculty of Law

GIGI FOSTER
Associate Professor, UNSW Business School, School of Economics

PAULINE A. GROSJEAN
Associate Professor, UNSW Business School, School of Economics



HOW TO SUBSCRIBE
You can subscribe to the eJournal, by clicking on the "subscribe" link listed above.

December 2, 2015 in Business, Call for Papers | Permalink | Comments (0)

Saturday, August 15, 2015

Gender Lens Investing

NYT, With an Eye to Impact, Investing Through a "Gender Lens"

ELLEN REMMER had wanted to align her investments with her values for years, seeking to put her money into stocks and bonds that would have an impact beyond the returns. For her, this meant investing in organizations that either improved the lot of women and girls or helped the environment.

 

Doing so took longer than she expected. Even though it was her money, it was held in trust. She said it wasn’t easy to persuade the trusts’ advisers to change their investment policies. ****

 

In its annual survey, the Global Impact Investing Network found that a third of all respondents were interested in making investments that promote gender equality and women’s empowerment through both debt and equity investments in the United States and emerging markets. Some investors seek out female entrepreneurs and give them money. Others invest in companies like those that provide clean-burning cook stoves to women in Africa and Latin America.

 

Patricia Farrar-Rivas, a partner at Veris Wealth Partners, a wealth management firm that invests $800 million on an impact basis, said gender lens investing is now the most popular of its five impact strategies. (The others are aimed at environment and climate change, community and economic development, sustainable food systems and agriculture, and “sustainable mind-set and mindfulness” — or companies that take their time making investments.)

 

Despite this increased interest, gender lens investment can seem hard to do. “It’s an area where it’s difficult to gauge supply and demand because much of the demand doesn’t know the supply exists,” Mr. Bouri said.

August 15, 2015 in Business | Permalink | Comments (0)

Friday, August 7, 2015

Trump and Women

Donald Trump's unforgettable performance in the GOP debate last night is now well publicized.  

Among the several provocative comments he uttered, one is especially noteworthy.  During an exchange with Megyn Kelly of Fox News, who had asked him to respond to charges that he was a misogynist, he snapped at her and made a vague threat.  

Today's WaPo contains some discussion about Trump's views on women.  

“I don’t know why, but I seem to bring out either the best or worst in women.”

So wrote Donald Trump in his 1997 book, “Trump: The Art of the Comeback.”At the time, the real-estate billionaire was dealing with the end of his second marriage, so a little bitterness might be expected. Yet, throughout Trump’s books — particularly in his three memoirs, “Trump: The Art of the Deal”(1987), “Trump: Surviving at the Top” (1990) and “The Art of the Comeback” — he writes at length on his personal relationships, his experiences with women in marriage and in the workplace, even his dating life.

A memorable excerpt from the WaPo piece, quoting The Donald: 

“Women have one of the great acts of all time. The smart ones act very feminine and needy, but inside they are real killers. The person who came up with the expression ‘the weaker sex’ was either very naive or had to be kidding. I have seen women manipulate men with just a twitch of their eye — or perhaps another body part.” (“Trump: The Art of the Comeback”)

August 7, 2015 in Business, Manliness, Masculinities, Media, Pop Culture | Permalink | Comments (0)

Thursday, August 6, 2015

Companies Adopt More Expansive Parental Leave Policies