I am part of a study group, which includes governance scholars from Norway, France, the United Kingdom, the United States, Australia, and New Zealand. We interview female company directors, along with company chairpersons and representatives of adjective organizations interested in the subject of diversity on corporate boards of directors. Examples of adjective organizations in the United States are Catalyst, Inc. and WomenCorporateDirectors (WCD), and an Australian adjective organization is the Institute of Company Directors (AICD). The expected outcome of this study group is a more empirical description of how various women actually have attained elevation to corporate boards and senior management positions, as opposed to the anecdotal and other non-empirical accounts which have dominated the literature to date.1
In 2010, at the New South Wales State Library in Sydney, Australia, the group interviewed 16 women who serve as directors of publicly held companies, five company chairmen, and four representatives from adjective organizations. A subsidiary goal is to repeat the process in several countries, developing a comparative as well as empirical model of pathways for women to corporate board membership.
In this process, each of the group members reported on the progress that is occurring in her part of the world. For example, two leading experts, Dr. Susan Vinnicombe2 and Dr. Ruth Sealy,3 both from the School of Management at Cranfield University in the United Kingdom, described that women on corporate boards has become a headline issue throughout much of the European Union.4 Agnes Bolso,5 Professor of Interdisciplinary Studies at the University of Trondheim, augmented the group's knowledge of what had occurred in Norway (the 2003 enactment of a quota law).
The study group session revealed that, while over the last six years promotion of women to board and senior management positions has become a dormant issue in the United States, the issue has received renewed emphasis in Europe and around the Pacific Rim, especially in recent years. The European Union's Justice Commissioner, Viviane Reding, has strongly urged a quota measure applicable to all 27 member states.6 Several European Union (EU) member nations (Belgium, France, Italy, the Netherlands, and Spain) have followed Norway, a non-EU member, in adopting quota laws, as have Iceland, Israel, Switzerland, and Malaysia, among non-member states.7 Impatience with the continued male dominance of seats on corporate boards is growing.8 The purpose of this Article is to detail the added impatience and emphasis, which seems to gather momentum almost daily, as well as to document responses to the glass ceiling, work and life, and other issues that have impeded women's progress toward board and management positions.
II. WHY WOMEN?9
Arguments abound for an increase of diversity in every profession or calling-law practice, medicine, academe, law enforcement, firefighting, and more. One drumbeat, persistent since the 1990s, has been for an increase in diversity candidates for publicly held corporations' boards of directors-most particularly, women on boards. "[I]f Lehman Brothers were actually Lehman Sisters, the company never would have gone under," is a statement that captures the sentiment.10 Women are thought to be more sensitive and adverse to the sorts of risk that led to the global financial meltdown of 2008.11 A greater presence of women on boards of directors may have helped avert many of the debacles which occurred.12There are several benefits to corporations from an increase in women directors. First, this increase would provide a positive role model for other women in the middle and lower ranks of corporate organizations. In mi-2011, over 50% of the middle managers in corporate America were women13 while only 2.6% of CEOs of Fortune 500 companies were female.14
Second, boardroom diversity aids in avoidance of "groupthink," the complacency that led to monumental governance failures at Enron and other corporations. The presence of women aids proliferation of the array of perspectives and viewpoints on corporate boards, leading to better assessments of risk and less rubberstamping of CEOs' decisions.15
Third, "market reciprocity" means that companies that sell goods and services to the public send positive signals to consumers who might purchase their products.16 Women account for well over 70% of the purchasing power in our economy.17 The presence of women in a corporation's senior management would filter out to and sway potential purchasers.
Fourth, corporations will increasingly function in a diverse world. Their governance and the makeup of their boards should reflect this, including more women and persons of color as directors.18
Fifth, authoritative international laws and conventions state that "men and women have the same right to employment opportunities," "promotion," and "equal treatment in respect of work for equal value." The latter are sound bites from Article 11 of the United Nations Convention on Elimination of All Forms of Discrimination Against Women (CEDAW).19 Especially in Europe, fealty to CEDAW and its commands have been influential in consideration of quota laws and other measures to increase the number of women occupying corporate board seats.20
Women bring broader perspectives to board service, better use interpersonal skills to promote collaboration among board members and managers, and help expand the context of board discussions.21 Still other scholars have written extensively about why diversity, including the presence of increased numbers of women directors, is necessary.22 Only a few view an increased presence in corporate governance through more jaundiced eyes.23 This Article takes the case for women on boards as a given, turning quickly to a review of the progress and programs contributing to the progress that has occurred around the world.24
III. PROGRESS IN VARIOUS FORMS
Some discussion and commentary might lead to a belief that little headway has been made in placing women on corporate boards of directors. A more accurate assessment might be that "[p]rogress has been made but the numbers, especially of women at the boardroom and CEO level, lag far behind expectations."25 A caveat to that assessment might be that the numbers that do exist must be examined closely and, on occasion, taken with a grain or more of salt.
A. Comparative Statistics
The statistics indicating the representation of women on corporate boards vary widely throughout the world. Norway, which passed its controversial quota law in 2003, in effect mandated that 40% of a public company's directors be women by 2008-a goal that Norway achieved.26 In eight years, Norway went from 6.8% to 40.3% female directors on publicly held corporation boards.27 According to Catalyst, Inc., in the United States, the proportion of women on boards of large publicly held companies stands at 16.1%, but with the proportion stagnant from 2004 onward.28 Portugal has the fewest females on corporate boards of publicly held corporations, accounting for just 0.6%.29
Overall, the 2010 European average was 11.7% but, again, the numbers varied widely. After Norway, the five highest averages were: Sweden (21.9%), Finland (16.8%), Netherlands (7%), Denmark (12.5%), and the United Kingdom (12.2%).30 Besides Portugal, the laggards included Italy (2.1%) and Germany (7.8%).31
The past two years have seen significant change-to between 13% and 14%.32 France, which adopted a quota law early in 2011, is thought to be responsible for half or more of the EU increase with the percentage of women directors increasing from 12% to 24% in 14 months.33
On the Pacific Rim, Australia leads among the countries with available statistics with 13.8%,34 and New Zealand follows with approximately 10%.35 Others in the queue include Hong Kong (8.9%)36 and People's Republic of China (7.2%).37 The caboose is Japan (0.4%).38
B. Counting Errors
Germany reports that approximately 7% of directors are women, but that is the number on supervisory boards.39 German law requires a two-tiered board structure with a relatively large supervisory board and a relatively small managing board,40 as corporate laws also provide in several countries with very large populations (e.g., China, Indonesia)41 and some smaller nations as well (e.g., Slovenia, Netherlands).42
Mark Twain wrote that "there are three kinds of lies: lies, damned lies, and statistics."43 At best, the German statistic is a half-truth. On managing boards (Vorstand), the more exclusive circle in the German system (where "the rubber meets the road") less than 2% of directors are women.44 Standing alone, without background disclosure, the 7% figure for directors on supervisory boards (Aufsichstrat) seems misleading.
U.S. sources take Catalyst numbers (15.7% in 2010; 16.1% in 2011) as accurate.45 Catalyst consistently fudges the number upward by reporting the number of directorships held by women as the number of women directors. In reality, the latter number (actual female bodies) is smaller.46
C. The Trophy Director Phenomenon
Why is the number of women directors significantly smaller than the number of directorships held by women? Because of the prevalence of "trophy directors" among women in the United States, women may be serving on four, five, six, or seven boards of directors.47 Trophy director status is an almost non-existent phenomenon among male directors, most of whom are CEOs and many of whose boards today limit the directors' outside involvement to one other board or no other boards at all.48 In 2006, Susan Bayh (wife of ex-senator Evan Bayh) sat on eight boards. Women such as Barbara Bowles, Shirley Jackson, Bonnie Hill, and Jackie Ward each sat on seven boards that year.49 The fastest growing segment of U.S. board members has been women trophy directors: the number rose from 19 to approximately 80 women just between 2001 and 2006.50 U.S. public companies appoint the same women over and over. A more accurate number for the United States might be 12.2% rather than Catalyst's 15.7% or 16.1%-that is the number at which Governance Metrics International pegged the United States in March 2010.51
Other countries commit the same counting error as Catalyst does, but the error is of less seriousness because those countries have fewer trophy directors. Australia, for instance, had only eight women who held three directorships and sixteen who held two in the Australian Stock Exchange (ASX) 200. Thus, in Australia, the number of directorships held by women is not significantly greater than the total number of women directors, despite the statistics' failure to differentiate between the two.52
As previously noted, the increase of women on corporate boards has been a hot- button issue in Europe. As a result, women's membership on corporate boards has increased. Between 2004 and 2010, the following mid-range countries showed marked increases: Austria (7% to 13.5%), France (7% to 12.5%), Belgium (3% to 12%), and Spain (3.5% to 12%).53
On the other side of the world, similar to the United States, Australia virtually flat- lined from 2004 to 2010, at 8.5%.54 Suddenly, the issue of women on corporate boards moved from the back to the front burner. From April 2010 to March 2011, the number jumped from 8.5% to 11.2%,55 then to 13% by August 2011,56 and more recently to 13.8%.57 Much of this increase may be due to an Australian Institute of Company Directors (AICD) mentoring and sponsorship program aimed not only at producing women able to contribute as board members, but actually placing them on public company boards.58
By contrast with Australia and Europe on the currency meter, U.S. attention to the issue of women on boards has flagged, moving from front to back burner, with the numbers virtually unchanged since 2004 (with a maximum variation of .05% since that year).59 Some observers attribute this stall to "diversity fatigue," as U.S. boards and managers have been under severe pressure to add women, African Americans, Hispanics, and other diversity group members to their numbers.60 Others mention the necessity for directors and managements to deal with the financial implosion of 2007 through 2009 as a reason for diversity fatigue, from which companies have yet to fully emerge.61 Most recently, however, the literature reflects a renewed interest (academic at least) in women as corporate directors.62
E. Looking Beyond Upticks and Other Trends
At least six reasons exist for increases or upticks of women on corporate boards where they have occurred around the world: (1) quota laws; (2) certificate and pledge programs; (3) softlaw "comply or explain" requirements of stock exchanges;63 (4) mentoring/sponsorship programs; (5) renewed pressure by institutional investors; and (6) hard law, governmental agency requirements for plenary disclosure.64
Other planks in any corporation's program are to add a committed woman director (not a "queen bee" director) to the governance or nominating committee,65 a committee which virtually all corporate boards have, to increase the number of women directors on the board from one or two to at least three.66 Another of the exhortation of corporations is to eschew trophy directors whose repeated appointments to corporate boards crowd out younger, deserving women candidates.67 A third plank is to search out and eliminate more subtle forms of de facto, or second generation, discrimination,68 such as late-day and Saturday managers' meetings, emphasis on office "face time," and insistence on frequent travel, which have a disproportionate effect on women as they move up through the ranks of middle and senior management. The thought is that persistent enshrinement of such practices causes women, especially those with children, to opt out of the work force, leading to a depletion of the pool from which women director candidates could be chosen ten years hence.69
IV. DRIVERS TOWARD PROGRESS
Extensive involvement in discussion of these issues on four continents and in a score or more countries teaches one that groups, organizations, and governments have spawned a number of different initiatives geared toward placement of women in senior management positions and board seats. Roughly speaking, while these initiatives vary from country to country, they may be sorted into six groups. These groups are: (1) enactment of quota laws; (2) certificate and pledge programs; (3) comply or explain stock exchange regulations (softlaw initiatives); (4) mentoring and mentoring/sponsorship programs; (5) renewed institutional investor activism; and (6) mandatory disclosure regimes (hard law).
A. Quota Laws
Parliaments in Italy, the Netherlands, and Belgium have enacted gender-based director laws.70 Norway, the first nation to act, adopted its quota statute in 2003, ordering full compliance by 2008 and setting the level at 40%.71 Spain, the second to act, ordered achievement of the 40% level by 2016, a significant jump from the 5% level which prevailed in Spain at the time of the adoption of the law.72 The Spanish statute, though, is largely aspirational, while the Norwegian law has severe penalties. Norwegian companies that do not comply are not only subject to delisting on the stock exchange but to outright dissolution.73
France, the third nation to act, adopted a 40% quota law early in 2011.74 Looking northward to Norway, a deputy of the Assemblee Nationale (Marie-Jo Zimmerman) introduced a 20% quota bill in 2006. Thereafter, the notion of gender parity, at least in French corporate governance, had to negotiate a twisting route.
The Conseil Constitutionnel, a court that renders "advisory" opinions on pending measures, declared the proposed 2006 French legislation unconstitutional.75 The court found that the 1999 amendments to the French Constitution only permitted enactment of laws aimed at achieving gender parity in elections for political office. The proponents subsequently initiated a movement further to amend the French Constitution, which was achieved in 2008. The amendment provides that French laws shall promote equal access to "positions of professional and social responsibility," as well as to elected offices.76
In 2009, adding to the momentum for adoption of a quota statute, the quota measure's supporters found that only 8% of directors in France's largest 100 corporations were women. Further, they bemoaned that in that year, French public companies added only six new women directors to corporate boards.77
The recently enacted French quota mandate is staged. Public companies' boards must have 20% women directors within three years of enactment and 40% within six years, by 2017.78 Thus far, large French corporations are out in front of the 2014 objective, having passed 24% women directors on boards in 2012.79
Sweden, Finland, Germany, and the United Kingdom have all come out in opposition to quota laws for various reasons. Sweden (28.2%) and Finland (26%) already have meaningful representation of women on their boards.80 On the other hand, Germany and the United Kingdom have middling to poor and mediocre records, respectively, on the issue. Both countries have long traditions of bucking trends and becoming recalcitrant when told what to do.81
French reactions to a quota law vary. According to a poll, 71% of citizens favor the quota law.82 CEO Laurence Parisot favors such a law: "Improvement without a law is so slow that we cannot stay doing nothing."83 Catherine Chouard, President of the French Equal Opportunities and Anti-Discrimination Commissions, joins in: "It is an excellent way to change mentalities. The law will be first step to a 'new way of life' in companies."84
Quota laws also have unintended and adverse consequences. In the rush to name females to directorships, for instance, Norwegian companies named one-no doubt very capable-woman to eleven corporate boards.85 No one, not even Superwoman, can serve adequately on more than three or perhaps four boards, especially in these post-Sarbanes- Oxley years, versions of which many countries have adopted. Quota laws produce a surfeit of women trophy directors, which may help produce unqualified, figurehead (token) female directors.86
Quota laws also may result in a surfeit of celebrity as well as trophy directors, who easily may be regarded as token or figurehead directors. This has allegedly happened in France where board seats have gone to former first lady Bernadette Chirac (from luxury goods retailer LVMH); Nicole Dassault, wife of the controlling shareholder (from Dassault Aviation); Florence Woerth, spouse of the former Minister for Labor (from Hermès); Brigitte Longuet, wife of the former Minister of Défence (broadcaster Canal Plus); and Amélie Oudéa-Castéra, former tennis professional and wife of Société Generale CEO (from the media group Lagardère).87
Other consequences thought due to the enactment of a quota law include companies downsizing their boards of directors to reduce the number of women candidates necessary and thus search costs. An extreme consequence is that some companies may go private in order to evade a quota law's requirements altogether.88
Opposition to enactment of a quota law is strong in nations such as New Zealand, a country in which women make up 59% of the work force and was recently governed by a female prime minister, yet many corporate executives oppose mandatory or other guidelines.89 The New Zealand Stock Exchange has publicly stated that it will not even follow its Australian counterpart, the ASX, which has a requirement for companies to set and meet voluntary quotas for increasing the number of women at the top.90 In the United Kingdom, a recent government report urges a voluntary quota of 25% by 2015, but it pointedly stops short of any recommendation that the United Kingdom adopt a compulsory quota, as France, Spain, Belgium, the Netherlands, Norway, and other states have done.91
By contrast, the Malaysian government has imposed a quota that publicly held companies have 30% women directors by 2016.92 Discussion of proposed or enacted quota laws takes place around the world, is frequent, is at times quite heated, and contains widely divergent, often diametrically opposed, opinions and arguments.93
B. Certificate and Pledge Programs
The Dutch 2008 "Talent to the Top" pledge requires public corporations to add women to their board if the corporations voluntarily subscribe to the pledge.94 The 110 largest Dutch companies have done so, including many very large household-name corporations such as Shell, Phillips, Heineken, Reed Elsevier, and Unilever.95 These actions, and the follow through which succeeds the pledges, have played a part in raising Dutch corporate boards from approximately 7% women in 2006, to approximately 16% in 2010.96
In France, Claire de Montaigu, CEO of Leaders Trust, opposed the French quota law, favoring instead a pledge system requiring companies to set objectives for the addition of women directors. A non-governmental organization (NGO) would solicit the pledges and monitor progress toward pledges' goals.97
The United States has advocates of a similar measure as well. In two luncheon speeches in November 2010, Securities and Exchange Commission (SEC) Commissioner Luis Aguilar commended the National Football League's (NFL) Rooney Rule as a model for corporate pledges in the board composition area. "Board Diversity: Why It Matters and How to Improve It"98 was his principal address on the subject, and "Changing the Dialogue on Diversity to Achieve Results" preceded the first address by several weeks.99 Dan Rooney, a principal owner of the Pittsburgh Steelers Professional Football Club, chaired the NFL Committee on Diversity. The Committee drafted and the NFL adopted the Rooney Rule, which requires each team to pledge to include a minority candidate among the finalists for each coaching vacancy and general manager position and to conduct an on-site interview with that finalist.100 Since the rule was adopted in 2003, the number of black head coaches in the NFL increased from 6% to 22%.101Commissioner Aguilar stated that "[t]he NFL moved from lip service to action and the results are self- explanatory. Let's face it-Many corporate boards may need their own Rooney Rule . . . ."102
The EU followed the Netherlands' example when it requested large publicly held companies in Europe to voluntarily pledge to achieve the 30% level by 2015. The program failed miserably. After a year, only 24 companies in the European Union had signed the pledge.103 Calling for quota laws, EU Justice Commissioner Viviane Reding explained: "One year ago, I asked companies to voluntarily increase women's presence on corporate boards. . . . [I] regret to see that despite our calls, self-regulation so far has not brought about satisfactory results."104
In the United Kingdom, the Davies Report, which appeared in February 2011, has a pledge system as a centerpiece rather than adoption of a quota law.105 "FTSE 100 boards should aim for a minimum of 25% female representation by 2015 . . . . Chairman should announce their aspirational goals within the next six months . . . ."106
C. Comply or Explain Requirements
The listing rules of several stock exchanges require as part of their agreement with listed companies that the companies comply with governance requirements or explain why they do not. The United Kingdom Corporate Governance Code elaborates: "The comply or explain approach is the trademark of corporate governance in the UK. It has been in operation since the Code's beginnings . . . . It is strongly supported by both companies and shareholders and has been widely admired and imitated internationally."107
In 2010, the United Kingdom Council included a new diversity statement within the new Governance Code, with which UK public companies must comply or explain their non-compliance: "The search for board candidates should be conducted, and appointments made, on merit, against objective criteria and with due regard for the benefits of diversity on the board, including gender."108
Similarly, in 2010, the ASX in Sydney sharpened its pencil with regard to the addition of women on corporate boards. Effective January 1, 2012, Australian public corporations must "comply or explain." "Companies should establish a policy concerning diversity and disclose the policy or a summary of that policy."109 Further, "[t]he policy should include requirements for the board to establish measurable objectives for achieving gender diversity for the board to assess annually both the objectives and progress in achieving them." The Australian guidelines even reach beyond corporate governance to recommend disclosures on the proportion of women in the company's work force overall and in the ranks of senior management.110 Most corporations will comply and disclose what steps they have taken, adding to the pressure both to enlarge the pool from which women candidates to the board may be chosen and to name additional women to the board.
ASX and the business press term the requirement "the if not why not" rule, perhaps as code that the rule contains more of an imperative than the other "comply or explain" ASX rules that exist.111 In the last several years, Australia has seen a sea of change on the subject of women on corporate boards, evidenced by not only the "if not why not" rule of the stock exchange but also the mentoring/sponsorship program of the Australian Institute of Company Directors (AICD). Corporate director Jillian Segal states: "My impression also is that in many of these [corporate] boardrooms the conversation has changed, and the conversation is not 'should we do it?' but how best to do it."112
New York Stock Exchange (NYSE) Euronext adopted listing rule 303A in 2005, requiring that a majority of directors be "independent" (non-executive and not "gray insiders," such as the company's investment banker or outside lawyer) but has not adopted a "comply or explain" regulation regarding board diversity.113 The NYSE has done nothing further.
D. Mentoring/Sponsorship and Education Programs
One of the adjective organizations interviewed in Sydney was the AICD, which launched a mentoring and sponsorship program in March 2010.114 Mentee applicants must attend either the AICD's "Directors' Course in Mastering the Boardroom" or its "International Company Director's Course."115 Once they have become "ASX 200 board ready" through attendance at the course and their experience as lawyers, accountants, corporate managers, or in non-profit entities,116 women candidates join with a mentor. Initially, 63 women qualified. The mentors are company chairmen or experienced directors of ASX listed companies.117 At the program's inception, 56 of the chairmen of the ASX 200 had signed on. They pledge not only to mentor the candidate for a year, but at the end of the year, to place the woman mentee on a public company board of directors.118
Between April 2010 and November 2010, the percentage of women directors on Australian corporate boards increased 2%, from 8.5% to 10.4%, and has continued to increase thereafter.119 The percentage reached 13.8% by March 2012.120 In 2010 alone, ASX 200 corporations "made more than 20% of their board appointments to women compared with 5% in 2009."121 At first blush the number may seem small, but one must remember that corporate boards are smaller in Australia-five to seven directors-than in the United States (10.6 directors approximately) and that the Australian sample is smaller-ASX 200 versus Fortune 500.122
Would a mentoring program yield similar results in the United States? As with most other industrialized nations, in Australia non-executive chairs predominate.123 The ordinary rule in Australia and elsewhere is that a person other than the CEO wears the chairperson hat. Bifurcation of the offices is thought necessary because a board's highest calling is to hire, monitor, and remove the CEO if necessary. A board may be hamstrung in that effort if the very person charged with convening and leading the board-the chair-is also the same person whose removal is sought-namely, the CEO.
The United States is the only developed nation that is different, markedly so. In fact, it is the opposite. In approximately 80% of the United States' larger publicly traded corporations, the same individual holds both the offices of CEO and chairperson of the board.124 Whether two-fisted U.S. corporate CEOs/chairpersons or experienced and influential corporate directors, who tend to be extremely busy individuals, would sign on as mentors to women candidates for directorships in any number is problematic. Reluctance of corporate CEOs to participate may be a large obstacle to adoption of an AIDC-like mentoring program for women in the United States.
There exist other softer mentoring/education programs in the United States that aim to achieve the advancement of women onto corporate boards. Catalyst, which has offices in New York, Toronto, and San Jose, conducts programs for women aspirants from time- to-time. Boardroom Bound is a different organization, which operates from Washington, D.C. and Chicago, Illinois, doing much the same.125 In 2007, the American Bar Association launched its DirectWomen program, which provides one-week instruction programs for 30 women per year, aiming to put women attorneys on corporate boards.126 WomenCorporateDirectors (WCD) is another New York-based organization, which, inter alia, runs a short course called "On Board Bootcamp" for director aspirants.127 Mentoring and education programs for women also exist in other countries.128
Astute observers criticize mentoring programs on several grounds. In the corporate setting, mentors may disappear, be transferred to another location, or be the victim of downsizing.129 Many mentors are over-protective of younger women managers especially, leading to the "office uncle" or "plastic bubble" phenomena in which mentors seek to shield mentees from vicissitudes, obstacles, and roadblocks rather than stating: "Here's the wall. Let's strategize working through it."130 A mentoring scheme may quickly degenerate into a star system, similar to that which prevails at many corporations.131 If the leading star falls from the firmament, the lesser star falls further, sometimes disappearing altogether into a corporate black hole.
A repeated criticism of mentoring, whether informal or more structured, is that even if mentoring does not lead to the wrong place, it necessarily leads nowhere.132 A mentoring and sponsorship program such as that implemented by the AICD has the great advantage that the promoters have designed the program to lead somewhere-that is, if all goes well-to a seat on the board of directors of a publicly held corporation.
E. Renewed Institutional Investor Pressure
Robert McCord, the treasurer of the Commonwealth of Pennsylvania, together with his proxy advisory firm Glass Lewis LLC, have voted against and withheld authority from management nominees for board positions at portfolio companies 1136 times out of more than 7000 votes cast over the two most recent years (since McCord took office). Any time McCord finds out that management of a portfolio company does not have in place an initiative for increasing the representation of women on their board, McCord or his proxy firm cast a negative or "withhold" vote.133 McCord advances an economic rationale for his activism: "Women are more likely to ask tough questions, get detailed answers and push for collaborative solutions . . . . It has everything to do with economic security."134
A group of institutional investors and other organizations have formed the "30% Coalition." The group's goal is to push through to a 30% level of women directors on publicly held corporation boards.135 One large institutional investor, the California State Teachers' Retirement System (CalSTRS), has as a goal to increase female representation on the boards of companies in which it invests. CalSTRS expressed extreme dissatisfaction when the social media company Facebook, Inc. disclosed that all members of its initial board would be men.136
Along similar but more modest lines, the International Finance Corporation (IFC) reported that it keeps track of the gender balance of the directors the IFC nominates. Of 211 directors the IFC has nominated, 19% have been women, which the IFC intends to increase to above 30% by 2015.137 In the United States, activist institutional investors such as public employee and labor union pension plans take stances on board composition, such as retirement age and tenure rules as well as diversity issues.138
F. Mandatory Disclosure Regimes
With little fanfare, the SEC's "Proxy Rule Disclosure and Solicitation Enhancements" amendments took effect on February 28, 2010, in the United States.139 The release amends SEC omnibus Regulation S-K, the umbrella disclosure regulation that dictates what material public companies must disclose and sometimes in what format they must disclose it, across the breadth of documents corporations file with the SEC (registration statements, tender offer documents, proxy statements, periodic disclosure documents (8Ks, 10Qs, and 10Ks)).140
With regard to diversity on their boards, U.S. publicly held companies must disclose:
1. whether diversity is a factor in considering candidates for the company's board of directors;
2. how diversity is considered in the process of selecting board candidates; and
3. how the company assesses the effectiveness of whatever policy and process it has chosen to adopt.141
One examination of a medium-size sample of large corporation proxy statements (the Holzer study)142 sorts corporations into four groups.
The first group consists of a large number of companies who gave only lip service to the new disclosure requirements. These companies disclosed merely that diversity is a factor in choosing board members. They disclosed nothing further, such as how diversity is considered in the selection process and how effective that process has been.143
A second group of companies more closely approaches but still does not meet the SEC requirements.144 Above disclosing that diversity is a factor, these companies disclosed how their process encapsulates their commitment. One large company, for example, disclosed that it instructs the executive search firm it regularly hires to give diversity great weight in culling candidate names for the board. Another public company's proxy statement provided that "the Governance Committee assesses the composition of the board [including its diversity] at least once a year."145
Third, a minority of corporations met the SEC requirements, at least in their 2010 filings.146 These companies described the racial and gender composition of their boards. One company read diversity broadly (the SEC regulations do not define diversity): its filing examined the race, gender, national origin, and background of its board members.147
A fourth group, consisting of only two companies (of 24), exceeds the SEC requirements for disclosure on board composition and diversity. These companies were found to be "head and shoulders above the rest."148 They fully articulated their policy and process (instructions to search firms, annual assessment by the full board, etc.). They calculated the results (e.g., "[t]wo nominees are women and five nominees-including the chairman and chief executive officer-are Asian, African American or Hispanic";149 or "of the ten candidates for board vacancies last year, three are women; two are African American; one is Mexican; and one is Indian").150 Finally, these companies attempted to elucidate how diversity affects the operation of their business and what they are attempting to achieve.
Viewed charitably, many corporate draftspersons may not have developed a feeling for what the SEC and Regulation S-K now require. As the years progress, additional corporations will improve their disclosures. As a result, many reporting companies also will enhance the processes on which they are reporting, with a resulting increase in diversity on boards of directors.
By contrast, viewed less charitably, early reports are that a significant number of companies opt out of the diversity disclosure process altogether by means of a simple one line disclosure stating that there is no fixed policy within the company regarding candidate diversity for the board of directors.151 Brazen corporations may thus short circuit the SEC mandated disclosure requirements, negating altogether the intended effect, or any effect, of the disclosure requirement. The "no policy" alternative seems to be the board diversity disclosure requirement's Achilles heel.
In the United States, as compared to many other developed countries around the world, the ardor for diversity has cooled. Because the fire has not been re-kindled, the fire's embers merely glow. A countertrend to this stall in the United States has been the SEC's new diversity disclosure requirement, which seems to have sprung from the glowing embers. When most U.S. corporations comply with them, the regulations and the disclosures may produce-scofflaws just discussed aside-a significant increase in diversity on corporate boards, re-kindling the fire.
By contrast, a strong countertrend elsewhere-adoption of quota laws imposing quotas for numbers of women on corporate boards-would seem to have little promise for adoption in the United States. Although some Americans are liberal Democrats, and others are conservative Republicans, and still others are in-between those extremes, in my opinion all are libertarians, of sorts, or have a libertarian streak running up their back. My surmise is that most Americans would regard a law dictating how many of each sex must be on a corporation's board of directors as excessively intrusive, far beyond any legitimate role the government could have in regulation of corporations. A third initiative, that of mentoring combined with sponsorship, which has produced significant gains in a very short period of time elsewhere, would not mesh well with the U.S. corporate governance paradigm in which the CEO is also the board chair. Because of the press of her duties as CEO, the typical U.S. board chair either would not be willing to or could not be effective as the mentor/sponsor. It may be worthwhile to determine if a mentoring/sponsorship program could be successful using persons designated "lead directors" or other experienced and influential corporate directors substitute as for the board chairs.152 In lieu of separating the CEO and board chair offices, many large U.S. corporations are designating a senior director as "lead director" in response to pressure by labor and public employee pension funds as well as others.153
As previously noted, scholars detect a waning of the energy devoted to the issue of gender diversity on corporate boards in the United States. CEOs deflect requests with a reasonable sounding "it's just not [or cannot be] on our list of priorities right now." Male directors and senior managers insist that "the best athlete available" remains at the top of their specification list for director additions to the board, with diversity, including gender diversity, far down or absent altogether from the list. Given those typical responses from those who control the director selection process, scholars ask: "Where will the renewed energy and emphasis come from?" Will the emphasis and energy level be sufficient to surmount the sort of backhanded dismissal some CEOs and directors give to the issue?
This Article's purpose is to show that renewed emphasis, higher energy levels, and new programs and initiatives have emerged in the last few years. A global view of the subject reveals this widespread and persistent emergence. That global view and what it shows may also be sufficient to ignite the spark here, returning to the issue some of the heat and the light that seems to have gone missing over the last several years.
1. See, e.g., DOUGLAS M. BRANSON, NO SEAT AT THE TABLE-HOW GOVERNANCE AND LAW KEEP WOMEN OUT OF THE BOARDROOM 77-86 (2007) [hereinafter NO SEAT AT THE TABLE] (giving women advice on "routes to the top"); see also DOUGLAS M. BRANSON, THE LAST MALE BASTION-GENDER AND THE CEO SUITE IN AMERICA'S PUBLIC COMPANIES 207-08 (2010) [hereinafter LAST MALE BASTION] (providing a list of authors and titles pertaining to management and advice for women).
[P]ublication of management and advice books for women has become a land office business . . . . The advice tends to be anecdotal: "this happened to me" or "happened to a friend." When books purport to be scientific, they sample men or women at random . . . . The idea of analyzing the careers of 21 women who have become CEOs of Fortune 500 companies [appears to be novel].
2. See generally SUSAN VINNICOMBE, WOMEN ON CORPORATE BOARDS-INTERNATIONAL RESEARCH AND PRACTICE (2009) (analyzing the issue of women on corporate boards).
3. See, e.g., Ruth Sealy, A Qualitative Examination of the Importance of Female Role Models in the Investment Banking Industry 106-14 (Jan. 2009) (unpublished research thesis, Cranfield University), available at http://dspace.lib.cranfield.ac.uk/handle/1826/4092 (providing an analysis of females' changing roles in the investment banking industry).
4. DELOITTE, WOMEN IN THE BOARDROOM: A GLOBAL PERSPECTIVE STUDY 1 (Nov. 2011) [hereinafter DELOITTE STUDY], available at http://www.deloitte.com/assets/Dcom-Global/Local%20Assets/Documents/ Enterprise%20Risk%20Services/dttl_CorpGov_WomenInTheBoardroom_220212.pdf (presenting an "overview of a number of current initiatives around the world"); Agnes Bolso, Ignore the Doubters. Norway's Quota on Women in the Boardroom Is Working, THE GUARDIAN (July 11, 2011), http://www.guardian.co.uk/comment isfree/2011/jul/18/diversity-boardroom-corporate-decisions.
5. Agnes Bolse & Hilde Biorkhaug, Power and Privilege, Meaning and Management-Gender in the Boardroom (unpublished research project, Norwegian University of Science & Technology at Trondheim), available at http://www.ntnu.no/c/document_library/get_file?uuid=70415f72-000a-4a78-9ca5-167f01fec043& groupId=15461.
6. James Kanter, Europe to Study Quotas for Women on Boards, N.Y. TIMES, Mar. 5, 2012, at B3, available at www.nytimes.com/2012/03/05/business/global/eu-considers-quotas-for-women-in-boardrooms .html?_r=1&pagewanted=all.
7. Gabriele Steinhauser, EU Eyes Quotas for Women on Company Boards, YAHOO! NEWS, Mar. 5, 2012, http://news.yahoo.com/eu-eyes-quotas-women-company-boards-113130411.html.
8. E. MERVYN DAVIES, WOMEN ON BOARDS (inside front cover) (2011), available at http://www.bis. gov.uk/assets/biscore/business-law/docs/w/11-745-women-on-boards.pdf ("At the current rate of change it will take over 70 years to achieve gender-balanced boardrooms in the UK.").
9. See generally LAST MALE BASTION, supra note 1, at 121-27 (citing to chapter 10, "Why Women?").
10. Leonie Lamont, Time Male Bosses Walked the Talk on Equality, SYDNEY MORNING HERALD, Oct. 15, 2011, http://www.smh.com.au/business/time-male-bosses-walked-the-talk-on-equality-20111014-1lp2x. html.
12. "[Women] consider more elements of risk and plan accordingly, whereas men will look at the more finite set of risks that are more likely to occur. And that parallels in the boardroom." Laura Mortkowitz, Survey: Big Gender Differences in Board Room, CRAIN'S N.Y. BUS. (Oct. 14, 2010, 2:12 PM), http://www.crainsnewyork.com/article/20101014/FREE/101019924.
13. See, e.g., Barbara Black, Stalled Gender Diversity and Corporate Boards 1 (Univ. of Cin. Pub. L., Research Paper No. 11-06, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1772763 (noting that women occupy 51.4% of middle management positions); see also Floyd Norris, In This Recession, Men Are Losing Jobs, N.Y. TIMES, Mar. 13, 2009, http://www.nytimes.com/2009/03/14/business/economy /14charts.html (analyzing the different employment rates for men and women).
14. Just the Facts, IN WOMEN WE TRUST, http://www.inwomenwetrust.com/resources/just-the-facts (last visited June 22, 2012); Joann S. Lublin, Coaching Urged for Women, WALL ST. J., Apr. 4, 2011, at B8, available at http://online.wsj.com/article/SB10001424052748704530204576237203974840800.html (providing statistics regarding women's leadership roles); see also LAST MALE BASTION, supra note 1, at xiv (finding that 15 women served as CEOs in 2010, up from one in 1997 and two in 2001); see also Jenna Goudreau, From Secretary to CEO: Beth Mooney Makes Banking History, FORBES (Sept. 6, 2011, 1:35 PM), http://www.forbes.com/sites/jennagoudreau/2011/09/06/key-corp-ceo-beth-mooney-makes-banking-history- power-women/ (quoting an anonymous KeyCorp employee as saying, "I'll walk a little taller and feel a little prouder because I work for a company with a female CEO").
15. Marleen O'Connor, The Enron Board: The Perils of Groupthink, 71 U. CIN. L. REV. 1233, 1293 (2003).
16. See LAST MALE BASTION, supra note 1, at 124-25 (defining market reciprocity and explaining its corporate impact); Lisa M. Fairfax, The Bottom Line on Board Diversity: A Cost-Benefit Analysis of the Business Rationales for Diversity on Corporate Boards, 2005 WIS. L. REV. 795, 820-25 (2005) (noting the importance of market rationale); see also Author: More Women Should Be in Charge, USA TODAY, Dec. 8, 2003, http://www.usatoday.com/money/books/reviews/2003-12-07-peters_x.htm ("[O]ver 50 percent of purchasing agents now are women . . . over 50 percent of administrative officers . . . well over 50 percent of human resources people." (quoting Tom Peters, author of RE-IMAGINE! BUSINESS EXCELLENCE IN A DISRUPTIVE AGE)).
17. See Black, supra note 13 (noting that women represent 76% of purchasing power in the United States).
18. Demographers forecast that non-whites will be a majority in the United States by 2028, ages 18-29, and that the proportion of the total population that is white will continue slowly to decrease thereafter (47% by 2050). Sam Roberts, In a Generation, Minorities May Be the U.S. Majority, N.Y. TIMES, Aug. 13, 2008, http://www.nytimes.com/2008/08/14/washington/14census.html?pagewanted=all.
19. United Nations Convention on Elimination of All Forms of Discrimination Against Women art. 11(1)(b), Dec. 19, 1979, 1249 U.N.T.S. 13.
20. See Darren Rosenblum, Feminizing Capital: A Corporate Imperative, 6 BERKELEY BUS. L.J. 55, 66- 67 (2010) (providing Norway and Finland as examples); see also N.Z. HUMAN RIGHTS COMM'N, CEDAW REPORT TO UN: NEW ZEALAND CENSUS OF WOMEN'S PARTICIPATION 9 (2010), available at http://www.hrc. co.nz/hrc_new/hrc/cms/files/documents/05-Nov-2010_09-29-40_HRC_Womens_Census_2010_WEB.pdf.
21. See Vicki W. Kramer et al., Critical Mass on Corporate Boards: Why Three or More Women Enhance Corporate Governance, DIR. MONTHLY 19 (2007), available at http://vkramerassociates.com/writings /NACD%20article.pdf; see also Joan MacLeod Heminway, Sex, Trust, and Corporate Boards, 18 HASTINGS WOMEN'S L.J. 173, 196 (2007) ("[F]emale directors may exhibit trusting behaviors or trustworthiness in different circumstances or environments than male directors . . . . The very existence of a difference in trust on a corporate board may be beneficial.").
22. See, e.g., LAST MALE BASTION, supra note 1, at 121-27 (referring to chapter 10, "Why Women?"). One case for women on boards that has not been made, despite the release by Catalyst of studies to the contrary, is the business case-that is, that the existence of diversity or the presence of several women on a corporate board enhances corporate performance. The better researched and reasoned studies conclude that board composition, of any kind, has no demonstrable correlation to business success. The latest mega study, again reaching that conclusion, is James A. Fanto et al., Board Diversity and Corporate Performance: Filling in the Gaps: Justifying Board Diversity, 89 N.C. L. REV. 901, 917-18 (2011). An earlier study reaching a similar conclusion is Sanjai Bhagat & Bernard Black, The Uncertain Relationship Between Board Composition and Firm Performance, 54 BUS. LAW. 921, 953 (1999). One source actually finds that the presence of women on a corporate board has a negative effect on corporate profits and share prices. Frank Dobbin & Jiwok Jung, Corporate Board Gender Diversity and Stock Performance: Competence Gap or Institutional Investor Bias?, 89 N.C. L. REV. 809, 815 (2011).
23. One is the noted futurist, Francis Fukuyama, who writes that women's greater participation in the labor force and in positions of power gives more men the message that they can leave their families, increasing the number of women-headed households. FRANCIS FUKUYAMA, THE GREAT DISRUPTION: HUMAN NATURE AND THE RECONSTITUTION OF THE SOCIAL ORDER 101-11 (1990). For another example, see Dobbin & Jung, supra note 22, at 813 (finding a negative correlation between the presence of women on boards and corporate profits or share prices).
24. Full treatment of the pros and cons of increased female representation on corporate boards is beyond the scope of this Article. As pointed out in the text, extensive treatments are contained elsewhere. See, e.g., NO SEAT AT THE TABLE, supra note 1, at 96-102; see generally Fairfax, supra note 16 (explaining the business rationales for diversity through a cost-benefit analysis); Lissa Broome & Kimberly Krawiec, Signaling Through Board Diversity: Is Anyone Listening?, 77 U. CIN. L. REV. 431 (2008). For a discussion of broader treatment of women on corporate boards, see generally Donald J. Polden, Forty Years After Title VII: Creating an Atmosphere Conducive to Diversity in the Corporate Boardroom, 36 U. MEM. L. REV. 67 (2005); Steven A. Ramirez, Games CEOs Play and Interest Convergence Theory: Why Diversity Lags in America's Corporate Boardrooms and What to Do About It, 61 WASH. & LEE L. REV. 1583 (2004). But see generally Jayne M. Barnard, More Women on Corporate Boards? Not So Fast, 13 WM. & MARY J. WOMEN & L. 703, 715-16 (2007) (raising disincentives women face in considering board positions).
25. NO SEAT AT THE TABLE, supra note 1, at 2.
26. See generally Rosenblum, supra note 20, at 63-65 (2010) (stating that 22 firms did not achieve the mark by the deadline). In accordance with an all-pervasive, gender-neutral approach, the Norwegian mandate is that at least 40% of board members be one sex. Id.; see also Joann Lublin, Behind the Rush to Add Women to Norway's Boards, WALL ST. J., Dec. 10, 2007, at B-1.
27. IRENE NATIVIDAD, THERE IS NO DENYING THE EFFECTIVENESS OF QUOTAS: WHY EUROPE WILL SURPASS THE U.S. IN CHANGING THE FACE OF THE CORPORATE BOARD, DIRECTORS & BOARDS 23 (2010), available at www.globewomen.org/summit/2010/New_Folder/Natividad%20Article.pdf; cf. N.Z. HUMAN RIGHTS COMM'N, supra note 20, at 6 (referring to the percentage of women directors in Norway as 44%).
28. Press Release, Catalyst, Inc., No News Is Bad News: Women's Leadership Still Stalled in Corporate America (Dec. 19, 2011), available at http://www.catalyst.org/press-release/199/no-news-is-bad-news-womens- leadership-still-stalled-in-corporate-america (noting that this percentage is up from 15.7% in December, 2010; women hold 14.1% of executive management positions, down from 14.4%); Press Release, Catalyst, Inc., Latest Catalyst Census Show Women Still Not Scaling the Corporate Ladder in 2010 (Dec. 13, 2010), available at http://www.catalyst.org/press-release/181/latest-catalyst-census-shows-women-still-not-scaling-the-corporate -ladder-in-2010-new-study-indicates-clue-to-reversing-trend (stating that women held positions on corporate boards in 2010 in 15.7% of corporations, up from 15.2% in 2009).
29. EUROPEAN PROFESSIONAL WOMEN'S NETWORK, EPWN BOARD WOMEN CORPORATE MONITOR 2010 3 (4th ed. 2010) [hereinafter EPWN BOARD MONITOR], available at www.europeanpwn.net/files /europeanpwn_boardmonitor_2010.pdf; cf. NATIVIDAD, supra note 27, at 24 (stating that Portugal's percentage of female directors is 3%).
32. Steinhauser, supra note 7.
33. Id.; cf. Liz Bolshaw, Glass Ceilings Starting to Crack Across Europe, FIN. TIMES, Dec. 12, 2011, http://blogs.ft.com/women-at-the-top/2011/12/12/glass-ceilings-starting-to-crack-in-europe/ (stating that France has attained 20.1% due to France's post quota law); NATIVIDAD, supra note 27, at 24 (stating that France had 14.4% women directors in 2010). The numbers and percentages vary depending upon which study reports the figures.
34. Catherine Dunn, Global Increase in Women on Corporate Boards of Directors, But U.S. Lags, LAW.COM (Mar. 12, 2012), http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202544919389; cf. Ruth Williams, Crunching the Gender Numbers, SYDNEY MORNING HERALD, Oct. 15, 2011, http://www.smh.com .au/business/crunching-the-gender-numbers-20111014-1lp8l.html (explaining the new August 2011 statistic of 13%); Teresa Ooi, Women Groomed in the Art of Smashing the Glass Ceilings, THE AUSTRALIAN, Jan. 25, 2011, http://www.theaustralian.com.au/business/women-groomed-in-art-of-smashing-glass-ceilings/story- e6frg8zx-1225993879008 (stating that the percentage of women on boards went up to 10.6% in early 2011).
35. Brian Gaynor, Shallow Pool of Directors Needs Deepening, N.Z. HERALD, May 7, 2011; cf. N.Z. HUMAN RIGHTS COMM'N, supra note 20, at 6 (reporting that New Zealand has 9.3% of women in director positions).
36. SHALINI MAHTANI & KATE VERNON, CRANFIELD SCH. OF MGMT, CMTY. BUS., WOMEN ON BOARDS: HANG SENG INDEX 2009 16 (Nov. 2009), available at www.communitybusiness.org/images/cb/ publications/2009/WOB/pdf.
37. Michelle Webster, Women on Corporate Boards in Japan, China and Hong Kong: Their Roles and Prospects 8 (2010) (unpublished seminar paper, University of Washington School of Law) (on file with author) (citing CATALYST, INC., WOMEN IN THE LABOR FORCE IN CHINA (2010)).
38. Id. at 2 (stating that as of late 2009, 17 women held board positions in Japan out of 1198 positions in the top 100 corporations); see also GOVERNANCE METRICS INTERNATIONAL, WOMEN ON BOARDS: A STATISTICAL REVIEW BY COUNTRY, SUPERSECTOR AND SECTOR 4 (2010) (discussing the percentage of Japanese women in director positions); NATIVIDAD, supra note 27, at 24 (finding that 1.4% of Japanese women are directors).
39. EPWN BOARD MONITOR, supra note 29.
40. See Thomas J. Andre Jr., Some Reflections on German Corporate Governance: A Glimpse of German Supervisory Boards, 70 TUL. L. REV. 1818, 1823-30 (1996) (providing a general overview of the German board structure); see also Thomas J. Andre Jr., Cultural Hegemony: The Exportation of Anglo-Saxon Corporate Governance Ideologies to Germany, 73 TUL. L. REV. 69, 104-08 (1998) (analyzing the ways in which U.S. governance standards impacted foreign companies, specifically German companies).
41. Benny S. Tabalujan, Why Indonesian Corporate Governance Failed-Conjectures Concerning Legal Culture, 15 COLUM. J. ASIAN L. 142, 151 (2002).
42. See, e.g., Rado Bohinc & Stephen M. Bainbridge, Corporate Governance in Post-Privatized Slovenia, 49 AM. J. COMP. L. 49, 50-51 (2001).
43. AUTOBIOGRAPHY OF MARK TWAIN, VOL. 1, at 228 (Harriet E. Smith, et al. eds., 2010).
44. See Ina Frost & Leena Linnainmaa, Corporate Governance: Frauen in Aufrishstrat-Konnen Wir Von Unseren Skandinavian Nachbarn Lernen? (Corporate Governance: Women on the Supervisory Board-How We Can Learn from Our Scandinavian Neighbors?), 17 DIE AKTIENGESELLSCHAFT 601, 602 (2007) (noting that of the 7.2% women on supervisory boards, 3% are representatives of shareholders, while the remainder are representatives of employees and of labor unions).
45. See, e.g., Make Way for Madame Director, BUS. WEEK, Dec. 22, 2003, at 57 (presenting an uncritical acceptance of Catalyst numbers); Lublin, supra note 26 (portraying the same by THE WALL ST. J.).
46. See, e.g., NO SEAT AT THE TABLE, supra note 1, at 97.
Advocacy groups such as Catalyst, Inc., broadcast statistics about women's increased presence in business that seem misleading . . . . Catalyst, as well as journalists and others, report that 11.2 percent (in 1999-2000) or 13.6 percent (in 2004) of directors are women. What the statistics really say is that women hold 11.2 or 13.6 percent of the board seats, not that 11.2 or 13.6 of the directors are women.
47. Id. Trophy directors are "those who hold seats on four, five, or even a greater number of corporate boards of directors . . . ." Id.
48. See, e.g., Avita Raghhavan, Many CEOs Say 'No Thanks' to Board Seats, WALL ST. J., Jan. 28, 2005, at B1; accord Joann Lublin, Boardrooms Remain Old School, WALL ST. J., Feb. 28, 2011, at B9.
49. NO SEAT AT THE TABLE, supra note 1, at 99-100.
50. Id. at 97.
51. WOMEN ON BOARDS, A STATISTICAL REVIEW, supra note 38, at 3 (table); see also DAVIES, supra note 8, at 25 (noting that the percentage of female board members is 11.4% in the European Union).
52. Frances Anderson, Women Directors on Corporate Boards (2008) (unpublished research paper, University of Melbourne School of Law) (on file with author).
53. EPWN BOARD MONITOR, supra note 29.
54. Appointments to ASX 200 Boards, AUSTL. INST. CO. DIR. (Feb. 29, 2012), http://www.company directors.com.au/Director-Resource-Centre/Governance-and-Director-Issues/Board-Diversity.
55. Elizabeth Proust, Time Has Failed Women: A Quota May Just Insure Equal Rights, NAT'L TIMES (Austl.), Mar. 14, 2011, http://www.smh.com.au/opinion/society-and-culture/time-has-failed-women-a-quota- may-just-ensure-equal-rights-20110313-1bsty.html.
56. Williams, supra note 34.
57. Dunn, supra note 34.
58. Id.; see also infra notes 114-20 and accompanying text. The ASX comply or explain disclosure requirement is another key driver toward an increase of women on boards in Australia. See infra notes 107-09 and accompanying text.
59. Compare Press Release, Catalyst, Inc., Latest Catalyst Census Shows Women Still Not Scaling Corporate Ladder in 2010; New Study Indicates Clue to Reversing Trend (Dec. 13, 2010), available at http://www.catalyst.org/press-release/181/latest-catalyst-census-shows-women-still-not-scaling-the-corporate- ladder-in-2010-new-study-indicates-clue-to-reversing-trend (showing that 15.7% of Fortune 500 directors are women), with Press Release, Catalyst, Inc., Catalyst Census of the Fortune 500 Reveals Women Missing From Central Business Leadership (Dec. 9, 2009), available at http://www.catalyst.org/press-release/161/2009- catalyst-census-of-the-fortune-500-reveals-women-missing-from-critical-business-leadership ("Women held 15.2% of the board seats, a number that reflects little growth over the past 5 years.").
60. See, e.g., Judith Dobrzyski, Female CEOs Still a Rare Sight, CHI. TRIB., Mar. 28, 2007, at 21 (stating that "diversity fatigue" plagues efforts to put more women on boards and in executive positions).
61. See, e.g., SUSAN VINNICOMBE ET AL., CRANFIELD UNIV. SCH. OF MGMT., THE FEMALE FSTE REPORT 2010: OPENING UP THE APPOINTMENT PROCESS 16 (2010), available at http://www.som.cranfield.ac.uk/som/ dinamic-content/research/documents/FemaleFTSEReport2010.pdf (finding that the 12.5% figure in the United Kingdom represents "barely perceptible change").
62. For a recent review on women serving as corporate directors in legal journals, see generally Lissa L. Broome et al., Does Critical Mass Matter? Views From the Boardroom, 34 SEATTLE U. L. REV. 1049 (2011) (considering how "racial, ethnic, and gender composition of corporate boards matter"); Lisa M. Fairfax, Board Diversity Revisited: New Rationale, Same Old Story?, 89 N.C. L. REV. 856 (2011) (arguing that the lack of improvement in board diversity stems from reliance on old "importance of business rationales"); James A. Fanto et al., Justifying Board Diversity, 89 N.C. L. REV. 901 (2011) (advocating that corporations accept justifications other than increased shareholder value to support board diversity); Julie C. Suk, Gender Parity and State Legitimacy: From Public Office to Corporate Boards, INT'L J. CONST. L. (forthcoming 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1776263 (noting that many European countries have adopted laws in the last decade requiring a quota for women on corporate boards).
63. "Softlaw . . . often finds its source in items that are not law-related at all or only tangentially so, such as statements . . . of . . . recommended governance practices, stock exchange requirements that corporations disclose corporate governance requirements, and an emphasis on structure and process, particularly at the board of directors level . . . ." Douglas M. Branson, Teaching Comparative Corporate Governance: The Significance of "SoftLaw" and International Institutions, 34 GA. L. REV. 669, 670 (2000).
64. Hard law includes "substantive commands ('do's' and 'don'ts') from the parliament, legislature, or authoritative regulatory agency." Id.
65. NO SEAT AT THE TABLE, supra note 1, at 181. "Queen bee" is the stereotypical label applied to a woman who appears to relish being the only woman in management, at her management level, in a department, division, or subsidiary, on the board of directors, and so on, and who takes no steps, or actively foils, women from below her who seek advancement. Id.; see also CAROL GALLAGHER, GOING TO THE TOP 107-09 (2000).
66. See generally Kramer, supra note 21 (examining the impact of one, two, and three-plus women on corporate boards).
67. NO SEAT AT THE TABLE, supra note 1, at 181-82 (discussing the problem of both male and female trophy directors).
68. See Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458, 460 (2001) (defining second generation discrimination to be "structural, relational, and not necessarily intentional").
69. See NO SEAT AT THE TABLE, supra note 1, at 182-83 (discussing the impacts of maternity and child raising on equality of opportunity in the workplace).
70. See EPWN BOARD MONITOR, supra note 29 (listing EU states with quota legislation in effect or under consideration); Steinhauser, supra note 7 (discussing EU countries' individual adoption of gender quotas).
71. Rosenblum, supra note 20, at 63.
72. Ley Orgánica para la Igualdad Efectiva de Mujeres y Hombres 78 (B.O.E. 2007, 12,611, 12,627) (Spain) (Organic Law for the Effective Equality of Women and Men).
73. Suk, supra note 62, at 2; Rosenblum, supra note 20, at 73.
74. Loi 2011-103 du 27 janvier 2011 relative à la représentation équilibrée des femmes et des hommes au sein des conselis d'administration et de surveillance et à l'égalité professionnelle (National Assembly Law 2011-103 of January 2011 regarding the equal representation of men and women within administrative and surveillance councils, and of professional equality more generally), J. OFFICIEL DE LA REPUBLIQUE FRANCAISE, Jan. 28, 2011, texte 2 sur 92.
75. Conseil Constitutionnel Décision no (Constitutional Convention Decision number) 2006-533 DC, Mar. 16, 2006, cons. 2 à 10, Rec. p. 39.
76. Loi constitutionnelle de modernisation des institutions de la Ve République: Loi no 2008-724 du 23 juillet 2008 (Constitutional law of modernization of institutions of the Fifth Republic: Law number 2008-724 of July 23, 2008) (l), J, OFFICIEL DE LA REPUBLIQUE FRANCAISE, July 24, 2008, texte 2 sur 179.
77. REPORT OF MADAME BRIGITTE GRESY TO THE MINISTER OF LABOR (June 2009). The 2008 level of women on boards in France was 7.6%. Id.
78. See, e.g., Suk, supra note 62, at 14 (outlining the 20% and 40% benchmarks suggested by the Association Française des enterprises privées and by the Mouvement des enterprises de France (French Association of Private Enterprises and Movement/Changes of French Enterprises)).
79. Steinhauser, supra note 7; cf. Bolshaw, supra note 33 (20.1%).
80. See, e.g., Margaretta Neld, Gender Quotas Would Benefit Sweden's Corporate Boards, THE LOCAL: SWEDEN'S NEWS IN ENGLISH, Mar. 8, 2011, http://www.thelocal.se/32466/2011/; Nicola Clark, Getting Women into Boardrooms, by Law, N.Y. TIMES, Jan. 27, 2010, http://www.nytimes.com/2010/01/28/world/europe/28iht- quota.html?pagewanted=all.
81. Although the U.K. government opposes a quota law, that opposition has not prevented a government sponsored study group from releasing a lengthy report setting 25% as a goal for achievement by 2015. Julia Werdigier, In Britain, a Big Push for More Women to Serve on Corporate Boards, N.Y. TIMES, Feb. 25, 2011, at B6, available at http://www.nytimes.com/2011/02/25/business/global/25board.html (discussing DAVIES, supra note 8).
82. Dorine Rouillon, French Boards of Directors: Where Are the Women-Quota Legislation to Increase the Proportion of Women on Boards of Directors 12 (2010) (unpublished seminar paper, University of Washington) (on file with author).
83. Yann Le Galès, Quotas: 13 dirigeantes jugent la loi qui impose des femmes dans les conseils d'administration (Quotas: 13 Leaders Judge the law that requires women in administrative councils), LE FIGARO (Jan. 19, 2012, 9:55 PM), http://blog.lefigaro.fr/legales/2010/01/conseils-dadministration-10-femmes- jugent-la-loi,html.
85. Lublin, supra note 26 ("She spurned about 40 other offers . . . ."). By contrast, the new French quota law limits any individual, including a woman director, from service on more than four boards of directors. Darren Rosenblum, Corporate Governance-Sex and Quotas: A Transnational Perspective, Address at the University of Dayton School of Law Symposium: Perspectives on Gender & Business Ethics-Women in Corporate Governance (Feb. 25, 2011) (notes on file with author). In Norway, as an upshot of the scramble for talent which followed enactment of the quota law, an elite group of 70 women held 300 board seats. They were dubbed "the golden skirts." Clark, supra note 80.
86. Another unintended consequence of a quota law is for public companies to go private and thus to go dark rather than to attempt to comply. See, e.g., Lublin, supra note 26 ("Rather than comply with the gender law, more than 30 affected companies [in Norway] are going private.").
87. See Bolshaw, supra note 33 (discussing quota laws in France).
88. Lublin, supra note 26; Rosenblum, supra note 20.
89. Martin Johnston, Report: Women Lose Boardroom Gains, N.Z. HERALD, Nov. 8, 2010, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10686154.
90. Maria Slade, Gender Quotas for NSX Panned, N.Z. HERALD, Mar. 21, 2010. By contrast, the Australian Minister for the Status of Women has stated that the option of mandatory quotas in Australia is "still on the table." Williams, supra note 34.
91. Werdigier, supra note 81. Italy became the latest large European nation to enact a quota law, mandating that one-third of listed company directors be women by 2015, up from a meager 6% today. Giada Zampano, Italy to Push 'Pink Quotas', WALL ST. J., June 6, 2012, at B1 (noting the Italian statute will take effect in August 2012).
92. Lamont, supra note 10. Impatient with their government's inactivity, in some cases dominant shareholders and executives have engaged in self ordering. In Korea, for instance, "Samsung Electronics' billionaire chairman Lee Kun-hee wants women to fill 10% of executive positions by 2020 . . . ." Id.; accord Bolshaw, supra note 33 (tracking the rise in female board membership in Europe).
93. At least 81 countries have enacted quota laws, or similar measures, to lower the entry barriers for and increase the number of women in politics. See NICHOLAS D. KRISTOFF & SHERYL WUDUNN, HALF THE SKY- TURNING OPPRESSION INTO OPPORTUNITY FOR WOMEN WORLDWIDE 196 (2009).
94. Principles of the Charter, TALENT TO THE TOP (May 2008), available at http://biac.org/members/elsa/ mtg/2012-02-workshop/Charter_TalentNaarDeTop_EN_03.pdf.
95. MONITORING COMMITTEE, TALENT TO THE TOP, SUMMARY MONITORING REPORT (2010), available at http://www.scp.nl/english/dsresource?objectid=28423&type=org.
96. EPWN BOARD MONITOR, supra note 29, at 3 (bar chart).
97. Rouillon, supra note 82, at 14.
98. Luis A. Aguilar, Comm'r, SEC, Speech regarding Board Diversity: Why It Matters and How to Improve It (Nov. 4, 2010), available at http://www.sec.gov/news/speech/2010/spch110410laa.htm.
99. Luis A. Aguilar, Comm'r, SEC, Address at the Nat'l Ass'n of Minority & Women Owned Law Firms 2010 Annual Meeting regarding Changing the Dialogue on Diversity to Achieve Results (Oct. 4, 2010), available at http://www.sec.gov/news/speech/2010/spch100410laa.htm.
100. See Damon Hack, The NFL Spells out New Hiring Guidelines, N.Y. TIMES, Dec. 9, 2003, http://www.nytimes.com/2003/12/09/sports/pro-football-the-nfl-spells-out-new-hiring-guidelines.html (describing the NFL's policy); Dave Anderson, Minority Candidates Should Get a Fairer Shake, N.Y. TIMES, Dec. 16, 2003, http://www.nytimes.com/2003/12/16/sports/sports-of-the-times-minority-candidates-should-get- fairer-shake.html (advocating an even broader minority higher policy); see also William C. Rhoden, Working with the NFL on Diversity, N.Y. TIMES, Dec. 23, 2009, http://www.nytimes.com/2009/12/24/sports/football/ 24rhoden.html (explaining that the NFL extended the Rooney Rule to the hiring process for assistant coach vacancies).
101. Aguilar, supra note 99.
102. Aguilar, supra note 98.
103. Steinhauser, supra note 7.
105. DAVIES, supra note 8.
106. Id. at 4 (providing a summary of the report's recommendations). The report proposes ten recommendations. Id. Recommendation four states: "Chairmen will be encouraged to sign a charter supporting the recommendations." Id.
107. FIN. REPORTING COUNCIL, THE UK CORPORATE GOVERNANCE CODE 4 (2010), available at http://www.frc.org.uk/documents/pagemanager/corporate_governance/uk%20corp%20gov%20code%20june%202010.pdf. ASX Listing Rules are similar: annual disclosures must include "[a] statement disclosing the extent to which the entity [listed company] has followed the recommendations set by the ASX Corporate Governance Council." ASX GROUP, ASX LISTING RULES, GUIDANCE NOTES AND WAIVERS 410 (2010).
108. THE UK CORPORATE GOVERNANCE CODE, supra note 107, at 13 (emphasis added).
109. ASX CORPORATE GOVERNANCE COUNCIL, CORPORATE GOVERNANCE PRINCIPLES AND RECOMMENDATIONS WITH 2010 AMENDMENTS 11 (2d ed. 2010), available at http://www.asxgroup.com.au/ media/PDFs/cg_principles_recommendations_with_2010_amendments.pdf. The recommendations further provide that "[c]ompanies should disclose in each annual report the measurable objectives for achieving gender diversity set by the board in accordance with the diversity policy and progress towards achieving them." Id.
110. "Companies should disclose in each annual report the proportion of women employees in the whole organi[z]ation, women in senior executive positions and women on the board." Id.
111. Williams, supra note 34; see also DAVIES, supra note 8, at 27 (discussing the addition of the "if not why not" imperative to the overall "report or explain" ASX governance schematic).
112. Williams, supra note 34.
113. NYSE EURONEXT, NYSE LISTED COMPANY MANUAL § 303 (2009) (identifying corporate governance standards); cf. Black, supra note 13, at 4-5 (noting the NYSE failure to adopt company or explain board diversity regime).
114. See, e.g., Williams, supra note 34 ("The Australian Institute of Company Directors . . . has a well- publicized new mentoring and scholarship program in place, which it says has contributed to a recent surge in the ranks of women on boards, from 8.3 per cent in early 2010 to 13 per cent at August .").
115. ASX Chairmen's Mentoring Program 2011 Q & As, AUSTL. INST. OF CO. DIR. (March 7, 2011), http://www.companydirectors.com.au/~/media/Resources/Director%20Resource%20Centre/Governance%20and%20director%20issues/Board%20diversity/Board%20diversity%20PDF/Mentoring%20Program%20QAs_7% 20March%202011.ashx.
116. Formal prerequisites are that the applicants "already have 5 years' board experience (either on a listed or non-listed company board, large company board, [Non-profit] board, or large proprietary [private] company board)." Id. In addition, applicants for the AICD mentoring program should have "at least 10 years' experience as a senior executive" with a large company, "at least 10 years' experience as a professional advisor to the boards" of large companies, or "at least 10 years' experience in a senior position within Government." Id.
118. Amanda Saunders, AICD Program Aims to Get More Women on Boards, W. AUSTL., Apr. 23, 2010, http://nz.news.yahoo.com/a/-/archive/7100257/aicd-program-aims-women-boards/ (describing the launch of the AICD mentoring program in Perth, Western Australia).
119. The national newspaper, The Australian, published a feature article about the mentoring program on January 25, 2011, reporting that the level had increased to 10.6%. Ooi, supra note 34. Further increases have been to 11.2%, including to 14.1% among ASX 100 companies. Proust, supra note 55.
120. Dunn, supra note 34.
121. Maria Slade, Women Rising Up, N.Z. HERALD NEWS, Sept. 26, 2010, http://www.nzherald.co.nz/ maria-slade/news/article.cfm?a_id=358&objectid=10676074.
122. In the United States, there were 5161 director positions on 496 boards of directors in the 2006 Fortune 500, NO SEAT AT THE TABLE, supra note 1, at 88, 97, for an average board size of 10.4. In 2007, ASX 200 corporations had 1479 board seats, for an average of 7.4. Anderson, supra note 52.
123. See Henry Bosch, The Changing Face of Corporate Governance, 25 UNIV. NEW SOUTH WALES L. REV. 270, 281 (2002) ("Not only has it become almost universal for the offices of chairman and CEO to be held by different people . . . but it is now accepted as good practice that the CEO of a company should not go on to become chairman of the same company.").
124. See, e.g., Stephen T. Giove & Catherine Kemnitz, Separation and Oversight: A Matter of Checks and Balances, BOARDMEMBER.COM (Feb. 1, 2008), http://www.shearman.com/files/Publication/fe5bdf5b-a505- 49ba-8971-55f52bc3d654/Presentation/PublicationAttachment/1a44f5c8-29d5-4800-99b5-69eac52007d0/CM_ 020108.pdf (stating that 22 of the Fortune 100 had separate offices of CEO and board chair). If the sample is broadened to the Standard & Poor's 1500, according to one statistic, the proportion of corporations with separate CEO and chairperson offices rises to 46%. David Reilly, Goldman's CEO Bends But Doesn't Bow, WALL ST. J., Mar. 29, 2012, at C12 (noting that this percentage is up from 26% in 2000). Institutional and other investors continue to push for separation of the positions at larger companies. See Patricia Sabatini, Group Pushes Split Roles at BNY Mellon, PITTSBURGH POST-GAZETTE, Apr. 4, 2012, at A8 ("In addition to BNY Mellon, 10 other companies nationwide face proposals seeking to separate the positions of chairman and CEO, according to Proxy Monitor."); Liz Rappaport, Goldman Bows to Pressure on Board, WALL ST. J., Mar. 28, 2012, at A1 (explaining the pressure by the pension fund of the American Federation of State, County and Municipal Employees union to separate offices).
125. See generally BOARDROOM BOUND, http://www.boardroom-bound.com/blog1/ (last visited June 22, 2012) (providing general information on the organization).
126. See generally DIRECTWOMEN, http://directwomen.org (last visited June 22, 2012) (providing an overview of the DirectWomen organization).
127. Email from Susan Stautberg, President, WomenCorporateDirectors, to author (Apr. 4, 2011) (on file with author); see also WOMENCORPORATEDIRECTORS, http://www.womencorporatedirectors.com (last visited June 22, 2012) (providing an overview of the WomenCorporateDirectors organization).
128. See generally supra notes 114-19 and accompanying text (discussing mentoring programs in Australia). In Australia, the Business Council of Australia conducts programs for women board candidates, offering sizeable scholarships to enable more women to attend. BUSINESS COUNCIL OF AUSTRALIA, VISION AND VALUES 16 (2011). Similar to the Business Roundtable in the United States, the Business Council of Australia consists of the CEOs of Australia's 100 largest corporations.
129. See, e.g., NO SEAT AT THE TABLE, supra note 1, at 83.
130. ROSABETH MOSS KANTER, MEN AND WOMEN OF THE CORPORATION 188 (rev. ed. 1993). This may degenerate into negative mentoring in which male mentors urge women to move sideways into so-called pink collar jobs, such as in human resources or the captive corporate foundation, further removing them from the upward promotion track. NO SEAT AT THE TABLE, supra note 1, at 83-84.
131. See, e.g., NO SEAT AT THE TABLE, supra note 1, at 85.
132. See Press Release, Catalyst, Inc., Catalyst Study Shows Sponsorship Is Key to Women's Success, (Aug. 17, 2011), available at http://www.catalyst.org/press-release/190/catalyst-study-shows-sponsorship-is- key-to-womens-success; Joann S. Lublin, supra note 14 (quoting a senior partner at McKinsey recommending increased coaching as a solution to the dearth of women on boards of directors).
133. Kris Mamula, Pa. Treasurer Robert McCord Advances Issue of Women on Corporate Boards, PITTSBURGH BUS. TIMES, Apr. 8, 2011, at 5.
135. Dunn, supra note 34.
136. See Matt Stevens, Facebook's All-Male Board Criticized by California Pension Fund, L.A. TIMES, Feb. 7, 2012, available at http://articles.latimes.com/2012/feb/07/business/la-fi-calsters-facebook-20120207 ("We feel the more diverse a board, the more likely it is to maximize the return of our members.").
137. Lamont, supra note 10.
138. See, e.g., Lublin, supra note 26 (noting that Relational Investors LLC and California State Teachers' Retirement System are examples of activist institutional investors taking stances on board diversity issues).
139. See Proxy Disclosure and Solicitation Enhancements, Exchange Act Release No. 33-9052 (Dec. 16, 2009) (disclosing the February 28, 2010, effective date for the new disclosure amendments).
140. SEC Regulation S-K, 17 C.F.R. § 229.10 (2008).
141. SEC Regulation S-K, 17 C.F.R. § 229.407(c)(2)(vi) (2010).
142. Bryce Holzer, Proxy Statement Diversity Disclosure Requirement (Fall 2010) (unpublished seminar paper, University of Washington School of Law) (on file with author) (analyzing definitive proxy statement (14A) filings by 24 Fortune 500 companies).
143. Id. at 11-12.
144. Id. at 12-13.
145. Id. at 13.
146. Id. at 14 (noting that the companies were Boeing, Microsoft, Weyerhauser, Home Depot, Altaria, Century Aluminum, and Amazon).
147. Holzer, supra note 142, at 14 (articulating that this company was Century Aluminum).
148. Id. at 15 (stating that Proctor & Gamble and Citigroup were the companies).
149. Id. at 15 (noting an example from Citigroup).
150. Id. at 16 (providing an example from Proctor & Gamble).
151. See Black, supra note 13.
152. Many corporations' boards designate a director-usually one conceived of as seasoned and capable- as a lead director with authority to convene the board and chair meetings from which the CEO/chair is excluded. One example of the use of this authority would be the lead director calling a meeting to determine whether the CEO should be removed from office. See generally NATIONAL ASSOCIATION OF CORPORATE DIRECTORS (NACD), THE EFFECTIVE LEAD DIRECTOR (2011); NACD, BLUE RIBBON COMMISSION ON DIRECTOR PROFESSIONALISM (1996).
153. See, e.g., Liz Rappaport, Goldman's New 'Lead' Man, WALL ST. J., Apr. 5, 2012, at C1, available at http://online.wsj.com/article/SB10001424052702304072004577323830052881416.html (noting Goldman Sachs' appointment of a lead man).
Douglas M. Branson*
* W. Edward Sell Chair in Law, University of Pittsburgh. Professor Branson wishes to thank Ryan Heck, Bryce Holzer, Lillian Lin, Dorine Rouillon, Sebastiaan Schijf, Michelle Webster, Adrienne Lee Kwan Ying, and other students in his Diversity in Corporate Governance Seminar, University of Washington School of Law, Fall 2010.…