Monday, January 25, 2010

What a difference a continent makes (for corporations and quotas)

On January 21, 2010, Elaine L. Chao, the Secretary of Labor in the George W. Bush Administration, testified before the Republican members of the House Committee on Education and Labor and stated that the Obama Administration's agenda “constitutes a veritable Europeanization of America.” Yet, an action taken by the French National Assembly just hours before demonstrates Chao’s statement to be hyperbole, at least in terms of government control over the gender composition of corporate boards. On the evening of January 20, the French National Assembly passed legislation that will require large corporations to appoint women to 40 percent of their seats on their boards.

According to a January 21 blog by a correspondent for The Times newspaper in the United Kingdom (hat tip to the American Association for Affirmative Action blog), the bill has the backing of President Sarkozy's administration. The blog further notes:
“The quota is likely to reach the statue [sic] books, with amendments, later this year, making France the biggest state so far to use the law to break the boys only culture of the boardroom. Norway introduced a 40 percent rule in 2002 when women accounted for only 6 per cent of board seats there. Spain has also just passed a similar law.”

It’s hard, if not impossible, to imagine a similar law being passed in the United States, where the word “quota” is regarded as a piranha in the sea of politics. In contrast to the European nations cited above, quotas are prohibited under U.S. law. Executive Order 11246, issued by President Lyndon B. Johnson and kept in force by every succeeding president, requires covered federal contractors to take affirmative action to employ, and advance in employment women and minorities. However, OFCCP regulations implementing this order expressly forbid the use of quotas (see, 41 CFR 60-2.16(e)) and the U.S. Supreme Court has repeatedly held that quotas are unconstitutional (see, Grutter v Bollinger, 539 U.S. 306, 84 EPD ¶41,415 (2003); Gratz v Bollinger, 539 U.S. 244, 84 EPD ¶41,416 (2003); and Regents of the Univ of California v Bakke, 438 U.S. 265, 17 EPD ¶8402 (1978)). Moreover, the use of quotas would, with rare exceptions (such as a court-ordered remedy in an egregious case where discrimination has been proven in court), violate Title VII of the Civil Rights of 1964. Despite rhetoric to the contrary, there is no sign that the Obama Administration is planning to amend the Executive Order or its implementing regulations, or otherwise advocate a change in the existing law on quotas.

The United States government utilizes a less-aggressive approach in its efforts to break the barriers to women and minorities in advancing to senior executive positions. During the George H.W. Bush Administration, under the leadership of Secretary of Labor Elizabeth Dole and OFCCP Director Director Cari M. Dominguez, the OFCCP began conducting corporate management reviews, also know as “glass ceiling audits.” The term "glass ceiling" is commonly used to describe those artificial, invisible barriers that are based solely on attitudinal or organizational bias, which prevent qualified individuals from advancing upwardly into management level positions. In 1991, Congress established the Glass Ceiling Commission which issued its final report in November 1995.

An OFCCP corporate management review is an audit of a corporate headquarters that focuses on identifying barriers to women and minorities advancing to senior executive positions. The OFCCP conducted 41 corporate management compliance evaluations in fiscal year (FY) 2008. (The OFCCP has not yet released its enforcement data for FY 2009.) The EEOC has also engaged in efforts to break the glass ceiling. A recent EEOC glass ceiling settlement occurred in December 2009, when Outback Steakhouse agreed to pay $19 million and furnish significant remedial relief to a class of thousands of women at hundreds of its corporately owned restaurants nationwide where the EEOC found that women could not get promoted to the higher-level, profit-sharing management positions in the restaurants. In 2004, the EEOC issued a report, entitled "Glass Ceilings: Status of Women as Officials and Managers in the Private Sector," which showed that women represent about 36 percent of all officials and managers in private sector employment, a seven-percent increase over the 12-year period examined.

The American approach to the glass ceiling and quotas and the European approach are remarkably different. Although Chao’s January 21 statement focused primarily on union issues and did not specifically reference glass ceilings or quotas, her painting of the broader picture of the Obama agenda as one in which the American government exerts the same degree of control over corporations as is exercised by European governments is an overt exaggeration.

No comments:

Post a Comment