March 8, 2021
By Christina Sandefur
Just in time for International Women’s Day, the Ninth Circuit Court of Appeals will hear oral argument Wednesday in Meland v. Padilla, a lawsuit brought by our friends at the Pacific Legal Foundation challenging a California law (SB 826) that forces corporate shareholders to take a candidate’s sex into account every time they vote for board members. SB 826 requires all publicly traded companies incorporated or even just headquartered in California to have at least one female board member, and it subjects violators to hefty fines and public chastisement. The Goldwater Institute filed a brief in the case arguing that, well-intentioned as it may be, this law in reality patronizes women, disregards their individual preferences, and makes it harder for them to succeed in the workplace.
Efforts by male-dominated governments to close the so-called gender pay gap through top-down, one-size-fits-all mandates—such as sex-based employment quotas, paid parental leave, or minimum wages—are condescending and offensive. They treat women as incapable of negotiating the terms of their employment—and as victims of the patriarchy if they dare to choose flexibility or other benefits over higher pay.
There are reasons women may not have parity on corporate boards that have nothing to do with institutional discrimination but are based on individual preferences. Studies show that, on the whole, men place a high premium on a larger paycheck, while women value flexibility at work more. That’s why the number of women-owned businesses has increased 3000% since 1972, and women are increasingly choosing to work in the “gig” economy.
Government-mandated gender quotas ignore these choices and send the message to women—and their would-be employers and colleagues—that they can’t earn a leadership position without Big Brother’s helping hand. Even supporters of gender-based quotas recognize that they could mean “women would be appointed to corporate boards as tokens for the sake of compliance, which could reinforce stereotypes and make it even harder for intelligent and hardworking women to break the glass ceiling.” For example, India’s female-board-member mandate hasn’t resulted in greater opportunities for qualified women. Instead, the system has encouraged nepotism, with jobs going to family members or personal acquaintances of company directors who lacked the requisite education or experience to do their jobs. These women were seen as checking a box, and they were not even expected to perform, only reinforcing and worsening workplace prejudices against women.
Indeed, studies have shown that women hired under a quota system as opposed to merit are often branded with a “stigma of incompetence” that makes it difficult for them to be taken seriously and less likely to be recommended for future responsibilities, regardless of their actual performance on the job. Gender quotas have also been shown to reduce cooperation in the workplace.
That’s why Angela Ahrendts, former CEO of Burberry and Senior Vice President of retail at Apple, called such mandates “dangerous.” Ahrendts, who has been named one of the most powerful businesswomen in the world by Forbes and Fortune, as well as one of the top creative minds in business (without regard to gender), said filling a position should always be “about putting the best person in the job who can unite people and create value.” Ultimately, that’s best for everyone, including women.
Instead of imposing gender-based quotas that do more harm than good, lawmakers can empower women by eliminating unnecessary and overreaching laws. Federal, state, and local governments force people to get permission to practice a trade or start a business. Eliminating overreaching occupational licensing laws would make it easier for women to pursue the job of their choice. And getting rid of local rules that make it difficult or even a crime for people to work from home, would remove senseless barriers to work that have fallen especially hard on working moms.
As the Association of Libertarian Feminists noted nearly half a century ago, “If we pass laws that force our values on others, we are no better than men who have forced their values on us through legislation. We merely substitute our tyranny for the tyranny of men.” Laws that force people to make decisions on the basis of sex are discriminatory and harm the women they purport to help. On the other hand, breaking down unnecessary government barriers to work empowers women to pursue the careers that they desire.
Christina Sandefur is the Executive Vice President at the Goldwater Institute.