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Good news for gender equality as court green lights Meland v. Padilla

Good news for gender equality as court green lights Meland v. Padilla

One California law unconstitutionally forces people to make decisions on the basis of sex, patronizes women by disregarding their individual preferences, and makes it harder for everyone to succeed in the workplace. But there’s good news: The law may be on its way out.

This summer, the Ninth Circuit Court of Appeals gave the green light to Meland v. Padilla, a lawsuit challenging California’s Senate Bill 826, the nation’s first state law to force corporate shareholders to take a candidate’s sex into account when they vote for board members. Enacted in 2018, SB 826 requires all publicly traded companies incorporated or even just headquartered in California to have at least one female board member, a quota that increases depending on the board’s size. Corporations that violate the quota face hundreds of thousands of dollars in fines and will be publicly chastened on the Secretary of State’s list of non-compliant corporations.

But SB 826 imposes a solution in search of a problem. There are reasons women may not have parity on corporate boards that have nothing to do with institutional discrimination but rather 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 why women are increasingly choosing to work in the “gig” economy.

While the law may be well-intentioned, it disrespects the fact that women are unique individuals who make unique choices. It treats women as incapable of choosing their professions or negotiating the terms of their employment—and as victims if they choose flexibility or other benefits over jobs with more traditional hours or responsibilities, or higher pay.

And it fits with a larger pattern: Throughout America’s history, male-dominated governments (like the California legislature) have condescendingly replaced individual women’s decisions with one-size-fits-all standards.

Back in the early 20th century, for example, many states imposed minimum wage laws on women workers, purporting to benefit women by ensuring higher pay. But rather than giving women greater opportunities, those laws put many of them out of work altogether.

As Supreme Court Justice Ruth Bader Ginsburg (who spent her legal career fighting gender discrimination) once noted, laws aimed at “helping” women frequently result in depriving them of their freedom of choice. Based “on the notion that women could not cope with the world beyond hearth and home without a father, husband, or big brother to guide them,” she wrote, “the state impeded both men and women from pursuit of the very opportunities and styles of life that could enable them to break away from traditional patterns and develop their full, human capacities.”

Indeed, the National Woman’s Party, the original champion of the Equal Rights Amendment, wholeheartedly rejected “protective” legislation that singled women out for what they considered to be restrictive and discriminatory treatment.

At that time, California law prohibited businesses from employing women over 8 hours a day or 48 hours a week, or hiring women for jobs that required them to carry objects weighing 10 pounds or more up stairways rising more than 5 feet—supposedly to “protect” them. Those laws, NWP argued, were actually “used to deny women the right to earn their own livelihoods and to support their dependents.”

By dictating how many women should serve on a company’s board, SB 826 similarly ignores the preferences of women to pursue the career paths of their choice, supplanting those decisions with the economic choices that bureaucrats think women should make.

Government-mandated gender quotas 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.”

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.

That’s why Angela Ahrendts, former CEO of Burberry and Senior Vice President of retail at Apple, called mandates like SB 826 “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.

Laws that force people to make decisions on the basis of sex are discriminatory and harm the women they purport to help, so it’s good that the courts will be taking up the challenge to SB 826.

Some women prefer flexible working conditions and are willing to trade that for higher wages. Others are happy to keep regular office hours in exchange for career growth.

Women are not homogenous—and one-size-fits-all government regulations prevent individuals from making the decisions that work best for them.

Christina Sandefur is the executive vice president at the Goldwater Institute.


Press Enterprise