Wednesday, March 7, 2018
Gender quotas are back in the news with the Oscars and the trending of "inclusion riders." See posts here and here. Not so long ago gender quotas were talked about with Canadian Prime Minister Justin Trudeau's 50% female cabinet, European corporate board quotas, and the United Nation's gender parity initiatives.
Quota is certainly a bad word. But that doesn't mean its a bad idea. To the contrary, I have argued that quotas, specifically gender quotas, can be legal. And that such quotas are powerful remedies that offer the promise of structural change. See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).
The article first discusses the need for and the power of gender quotas. They are worth examining because no other remedy packs as much potential for making concrete, meaningful, systemic change. The article traces the other contexts, mostly international, where such quotas have been endorsed. It then addresses the legal issues. Here is an excerpt:
III. Making the Legal Case for Judicial Gender Quotas
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A second legal question regarding the validity of gender quotas is whether ordering such gender-specific relief would violate constitutional parameters of equal protection as seen in the affirmative action cases. U.S. Supreme Court decisions in the race context seemed to have foreclosed most affirmative action remedies like quotas in education and employment. Conditioning state action based on race is said to be discriminatory and trigger strict scrutiny, thereby justifying little state action.“‘To be narrowly tailored, a race-conscious admissions program cannot use a quota system,’ but instead must ‘remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.’” Race, however, can still be used as one factor in decisions like university admissions.
On the other hand, the European Court of Justice has upheld gender quotas against claims that they violate equality dictates. “[T]he ECJ's jurisprudence has reinforced the notion that gender quotas can only be narrowly justified by the goal of eradicating women's disadvantage. Particularly when women's underrepresentation in certain positions is explained by prejudice, stereotype, or other practices associated with women's traditional exclusion from working life, quotas tend to be upheld.” Viewed this way, “[q]uotas are a mechanism for combating and undoing the history and present complex structures of women’s subordination.”
In the U.S., the question turns in large part on application of the Fourteenth Amendment’s Equal Protection Clause as to whether a gender quota as a judicial remedy would itself constitute discrimination. One key distinction between gender and race quotas is that the constitutional standards for sex discrimination have been distinguished from those for race. The Supreme Court has applied only intermediate, not strict, scrutiny to sex-based classifications. While arguments have been made over the years that sex is akin to race in its immutable and stereotypical function, and thus should demand the same level of strict scrutiny, the Court has stuck to its different standard for women. As a result, the Court has shown a greater tolerance for sex-based action, articulating a need to protect women or acknowledge gendered differences. And the constitutional standard has been interpreted by the Court to require women’s admission to the avenues of power.
What the intermediate standard of constitutional scrutiny might mean in the quota context is that sex-based action might be more tolerable than race-based action. Perhaps this is the silver lining of the double-standard of intermediate scrutiny. For the Court's gender jurisprudence has recognized “the transformative potential of affirmative action and” how it “best advances the antisubordination goal of the equal protection guarantee.”Courts would need to identify important (but not compelling) interests justifying the sex-based action. These important interests could be derived from women’s non-representative lack of power, continued subordination, lack of autonomy, and other systemic effects well-established in the feminist literature, and interests in equity, proportional representation, and balanced power which have driven global reforms.
This important objective of reversing gendered and discriminatory systems by mandating shared parity of power differentiates the case of gender quotas from the women-only policy struck down in Mississippi University for Women v. Hogan. There, a state university’s nursing program was open only to women.132 The state claimed that its single-sex admission policy “compensate[d] for discrimination against women and, therefore, constitutes educational affirmative action.” The Court noted, significantly, that such a justification could be an important governmental interest. “In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.” However, in Hogan, the Court found that this compensatory remedial purpose was not in fact the state’s objective. “Mississippi has made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field when the MUW School of Nursing opened its door or that women currently are deprived of such opportunities.” The Court concluded that, “[r]ather than compensate for discriminatory barriers faced by women, MUW's policy of excluding males from admission to the School of Nursing tend[ed] to perpetuate the stereotyped view of nursing as an exclusively woman’s job.” In addition, the Court found that “MUW's admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy.” Thus, the constitutional infirmity with the all-women policy in Hogan was that it was not remedial and not aimed at reversing systemic inequality, but rather impermissibly perpetuated gendered stereotypes.
Where affirmative remediation is the legitimate objective, the Supreme Court has upheld quota-like gender preferences. In Johnson v. Transportation Agency, the Court upheld an affirmative action plan of a county employer granting promotion preference to a woman against challenge under Title VII. The county adopted the plan because “mere prohibition of discriminatory practices is not enough to remedy the effects of past practices and to permit attainment of an equitable representation of minorities, women and handicapped persons.” It’s “goal” (specifically designated as the softer term “goal” rather than “quota”) was to achieve “a statistically measurable yearly improvement in hiring, training and promotion of minorities and women” by the use of a “benchmark by which to evaluate progress,” working toward a long-term goal where its work force matched the gender composition of the area labor force, 36%. At the time, just 22% of the employees were women, two-thirds of them clerical, only 7% women in administration, 9% in technical, and none in the position of the skill craft worker challenged in the lawsuit. The Court upheld using the gender preference as one of the factors of employment, citing the statistical imbalance and underrepresentation of women. It did not, the Court said, “unnecessarily trammel the rights of male employees or create [ ] an absolute bar to their advancement” because positions still remained available for men and candidates, both men and women, still had to be qualified for the position.
Taking these cases together, the Court has shown a willingness to consider quotas in the gender context. While it has not had the question presented directly, the Court has at least not closed the door to gender parity. Instead, as in any heightened constitutional scrutiny, it demands close and careful application of the constitutional standards to ensure that gender preferences are not mere pretexts nor avenues for future discrimination.