Wednesday, October 3, 2012

Does international law permit gender quotas?

There is an interesting article in the EU Observer today (here) describing proposed European Union (EU) legislation that would impose gender quotas for high-level positions in private companies.  Specifically, publicly-listed companies in the EU would have to have at least 40% of the under-represented sex on their boards by 2020.  Currently, women represent only 14% of membership on these boards and it is estimated it will take at least 40 years before the gender gap is bridged.  According to EU Justice Commissioner, Viviane Reding, voluntary efforts have failed, thereby justifying more assertive action.

The international community has also been attempting to address the gender gap in international institutions.  For example, when the Rome Statute creating the International Criminal Court, provides for fair representation of men and women on the Court, and voting rules have been created to ensure the election of at least six women and six men.

Gender differences in business and law leadership positions in the United States are similar, if not worse, than those in the EU.  The U.S. Supreme Court, however, has banned the use of quotas in affirmative action to address discrimination.  See e.g., Baake.  Therefore, it is unlikely that the U.S. will follow a similar path.  The question of whether gender (or other) quotas are permitted under international law to address historical discrimination is an interesting one and likely will invite more discussion and debate.


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