Some women on corporate boards disagree with quotas

Several women lawyers who serve on corporate boards say they are conflicted about California's effort to mandate a minimum number of women on boards of most public companies -- but they also say the experience has been professionally rewarding.

"I want the company to want me, not my gender," said DLA Piper partner Anastasia "Stasia" D. Kelly, who serves on two corporate boards. "It puts the wrong umbrella over this whole effort because it becomes, 'We're just doing this because we have to.' It should be, 'We want to do it because it's a good idea.' Maybe I'm in the minority to believe the law is not helpful, but I see so much good work going into companies truly saying they want a diverse slate."

Several lawsuits in the Eastern District of California and the Los Angeles County Superior Court are challenging state laws that mandate a quota of women and members of certain racial and sexual minorities on boards of directors. The challengers, a mix of business groups, shareholders and conservative groups, argue, among other things, that the laws are unconstitutional because they discriminate based on race and gender.

The Los Angeles County judge who will begin presiding Wednesday over a bench trial challenging the law has also expressed reservations about the need for a quota. During a hearing in September, Judge Maureen Duffy-Lewis wondered aloud if corporate boards might become more diverse naturally as women are becoming more dominant in the ranks of some professions.

Lawyers, especially those who work at larger firms, have not traditionally sat on corporate boards because of potential conflicts. But some women lawyers see being a corporate director as a way to advance their careers. California Women Lawyers filed an amicus brief in support of Senate Bill 826, the law that will require women on boards by the end of this year. The group argued that other measures to diversify boards have not been successful and that the board recruitment process is too secretive.

Linda Michaelson, a partner at Sheppard, Mullin, sits on the board for Vancouver based Thunderbird Entertainment. She said the board sought her out because of her experience in entertainment transactions.

"As a corporate lawyer, many of us always toy with business or law, or even moving away from practicing, and getting more involved in the business side of a company," Michaelson said. "It's been great learning more about the operations of a business, the governance, and what executives are thinking about day in and day out."

But several women lawyers who already sit on corporate boards expressed reservations about whether a quota is a good idea.

"I am a woman, but I am also a woman of color, and quite frankly, I think that without a legislation to mandate that people of color are added to boards, it just won't happen quickly enough, so I do think the law was a good idea," Maria Green, a retired in-house counsel who serves on three corporate boards, said. "I get that companies have to fulfill an obligation, but it's also incumbent on that individual to ensure they're not being recruited to a board just to check a box."

Jill Fisch, a professor at the University of Pennsylvania Carey Law School and part of the department of legal and business ethics, said she believes mandated quotas are not helpful. However, she pointed out, California's law has already dramatically moved the needle in getting more women and minorities to join boards.

"It's not my preferred way to legislate, but it did make a difference. I think it's hard for people to make a judgment about the right number in any category that should be represented, especially with the idea of a statute setting what purports to be the 'right' or 'magic' number," Fisch said. "A quota can be a floor or a ceiling, but the idea that there is some right number of women or minorities to have on a board doesn't make a whole lot of sense to me."

Olga V. Mack, a professor at UC Berkeley School of Law, helped draft SB 826 and testified before the Legislature about the benefits of gender diversity in boardrooms. Regardless of the success of the legal challenges, the law is already a success, she said.

"We're now discussing and debating the issues of diversity in the board composition that in the past was completely ignored," Mack said. "So from my perspective, there is no loss, and now I believe companies should diversify their corporate boards, period. Even if the law is declared unconstitutional, which I do not believe it will be, the discussion has entered public discourse, which accomplished our goal."

But Mack said she too has reservations about quotas. "Admittedly, I was initially not a supporter of what is seen as a gender quota. As an advocate who called out companies that did not have any women on their boards, I realized that this was not scalable.

"My effort was really a drop in the bucket, and I wouldn't see the change during my lifetime without the law," she said. "Quotas have been well implemented in other countries like France. I became convinced that sometimes laws are good at scaling justice, instead of going to a company one by one, asking them to do the right thing. The law requires you to do the right thing, so go do it."