Striking down California law exposes worst of patriarchy

The patriarchy was not about to take this one sitting down.

In 2018, then-Gov. Jerry Brown signed a bill into law making it a requirement that all publicly held California corporations put women on their boards of directors.

The arithmetic was simple: By the end of 2019, all boards were to have at least one female director. By the end of 2021, boards with six or more directors were to have at least three female directors. Boards with five directors were to have two. Hefty fines would be levied on noncompliant companies.

The law has proved to be a stunning success. I could slam you with all kinds of statistics, but suffice to say that in 2018, the year before it took effect, women held only 15.5% of director seats on the boards of publicly held corporations in California. By 2021, they held 32% of board seats. Today, 99% of the companies affected by the law have at least one woman on their board. Some have two or three.

But just as California was blazing a trail for the rest of the country, the old guard objected. Right-wing legal groups decried what one called “the woman quota law” and argued it violates the California Constitution's equal protection clause. “The government should not force people to put a job candidate's sex above his or her individual traits,” declared the Pacific Legal Foundation. “Any law that puts equal numbers above equal treatment undermines the very concept of equality.”

Haven't we learned, though, over the course of American history that equal numbers result in equal treatment?

Unfortunately, Los Angeles County Superior Court Judge Maureen Duffy-Lewis, who was appointed in 1987 by Republican Gov. George Deukmejian, agreed with the law's opponents. So did my colleague Nick Goldberg, who, while lauding the law's goal, wrote last week that he found it “too intrusive.”

In her May 13 ruling, Duffy-Lewis said that the state failed to prove that publicly held corporations headquartered in California “engaged in purposeful and intentional, unlawful discrimination” in filling board seats.

She wrote that the state had not produced a single identifiable victim of gender discrimination and therefore had not proved its case.

But how would a victim even be identified? Boards are chosen in secret. You don't toss your name into the ring. You get tapped on the shoulder.

“The notion that change is going to happen on its own is just pie in the sky,” said former Democratic state Sen. Hannah-Beth Jackson, who co-wrote the law with her colleague Toni Atkins, the Senate's president pro tem. “You cannot change the culture by simply asking politely.”

Jackson had tried that once already.

In 2013, Jackson introduced a resolution — a request, basically — that asked California's publicly traded companies to add women to their boards. Over the next five years, women's representation grew from an ultra-paltry 15.5% (below the national average of 16.5%) to a slightly less paltry 16%. “That was it!” Jackson told me.

California Secretary of State Shirley Weber has vowed to appeal the decision.

The investment research firm MSCI analyzed U.S. companies between 2011 and 2016 and found that organizations that began the five-year period with at least three women on their board did much better on such metrics as return on equity and earnings per share than companies that began the period with no female directors. Three female directors, they concluded, represented a “tipping point.”

Think of it this way, Jackson suggested: “If you have one woman on a board, the guys expect her to get coffee. If you have two, the women fight over who gets the coffee. But if you have three women on a board, they tell you to get your own damn coffee.”