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2009
Feminizing Capital: A Corporate Imperative
Darren Rosenblum
Elisabeth Haub School of Law at Pace University, [email protected]
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Feminizing Capital:
Capital: A Corporate Imperative
Feminizing
Darren Rosenblumt
Rosenblum t
I.
II.
III.
IV.
V.
Contextualizing
............................... 61
Contextualizing Norway's
Norway's Corporate Board Quota ....................................
A. Norway's Gender Equality
............................................ 61
Equality Efforts .................................................
.............................................. 62
B. Norway's Corporate Board Quota ..................................................
62
C. Norway's Positioning in the Public/Private
Public/Private Spectrum
Spectrum ...............
.................... 67
67
Revisiting the Public/Private Dichotomy ...............................................
.................................................... 68
Gender Equality-Private
Equality-Private Means
.................................... 73
Means to a Public End ........................................
A. Market-Centered
Market-Centered Efforts May Make
Make Women's
Women's Economic
Transparent .................................................
Contributions More Transparent..
................................................... 74
74
1. Effects
"Women's Work"
1.
Effects of the Informal Nature of "Women's
Work"..........
................ 74
74
2. Moving
Moving Beyond Informality:
Informality: Efforts to Calculate
W
om en's W
ork ....................................................................
Women's
Work
......................................................................... 76
76
....................................................... 78
78
3. The Benefits of Estimating ..................................................
.............. 80
B. Cracking the Glass Ceiling and Trickle-Down
Trickle-Down Effects ...................
80
C. Private Efforts Define
Define Gender Equality ..........................................
85
...................................... 85
.......................................... 87
Equality as a Means
Means to Fortify Private
Private Ends ...............................................
87
Legitimization of Private Sector Goals through Gender
A. The Legitimization
Gender
E
quality .......................................................................................
Equality
........................................................................................... 89
89
Efficiency and Cost Benefit Analysis-Why
Analysis-Why Gender Equality
B. Efficiency
Equality
is "Good
"G ood for Growth"
G row th" .................................................................
90
...................................................................... 90
Conclusion-Gender Balance and the Public-Private
Public-Private Symbiosis
Conclusion-Gender
Symbiosis .............
................. 93
tt Associate
Associate Professor of Law, Pace Law School. Thanks
Thanks to Mary Anne Case, Bridget J. Crawford,
Crawford, Don
Don
J. Friedman, and Sonia Katyal. Thanks also to Martha A. Fineman and the
L. Doemberg,
Doemberg, Stephen
Stephen J.
Feminism
Scandinavian and Norwegian
Feminism and Legal Theory Workshop. For assistance with Scandinavian
Norwegian research,
Sid Serenson,
Sorenson, and to interviewees Dag Ekelberg, Catherine
thanks to Jami Weinstein, Ulrika Dahl and Siri
Catherine
H61st, Tiina Rosenberg, Aud Slettemoen
Research in Oslo,
Hiilst,
Slettemoen and Mari Teigen and the Institute
Institute for Social
Social Research
Norway. For extensive research
research support, thanks to Michael Stevens, Nonna Akopyan,
Akopyan, Angela Garrone,
Jody Frampton, Matthew
Matthew Collibee and Paul Humphreys.
55
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Berkeley Business Law Journal
Berkeley
6.1,2009
Vol. 6.1,
2009
Feminizing Capital: A Corporate Imperative
Feminizing
Recent economic
economic events
events have
have turned
turned the
the relationship
relationship between
between the
the public
public
Recent
sector and the corporate
corporate world
world upside-down.
upside-down. The as-yet-unnamed
as-yet-unnamed financial
sector
intervene in the private
private sector
sector at
at levels
levels not seen since
since
crisis led governments
governments to intervene
crisis
crisis has
has exposed
exposed the
the need
need for new leadership
leadership in
Depression. I This crisis
the Great Depression.'
the corporate
of public
public ideas in
in the
the private
private sector.
corporate world and aa new influx
influx of
of economic
economic relations
relations have surfaced,
surfaced, with
with some
some
Gendered understandings
understandings of
Gendered
arguing that
that testosterone
testosterone encourages
encourages excessive
excessive greed in boom cycles and fear in
arguing
of
bust cycles
cycles and that "the
"the meltdown's a guy thing."
thing.,,22 Beyond
Beyond allegations
allegations of
bust
causing the
the crisis, men have received
received the brunt
brunt of the trauma
trauma from the shrinking
shrinking
causing
economy. From March 2008 through February
February 2009,
2009, unemployment
unemployment for men in
irrespective of education. 3 Some
women, irrespective
Some
United States outpaced
outpaced that of women,
the United
estimates suggest that men have suffered 82% of the job losses in the U.S.
U.S.
estimates
4
during this economic
become the
economic crisis. Indeed, women appear poised to become
majority
majority of the work force for the first time in our nation's
nation's history. 5 However,
behind men in corporate
corporate boardrooms.
boardrooms. Not surprisingly,
surprisingly, in the
they still lag far behind
with female
called
for
fresh
management
some
have
of
financial
disaster,
wake
called
wake financial
6
universe," to take charge
charge of the situation. Iceland,
Iceland, for
for
"mistresses of the universe,"
faces, "mistresses
mess," along with the
"clean up [the]
example,
example, named
named two women
women to "clean
[the] male
male mess,"
the
world's
world's first openly
openly lesbian
lesbian prime
prime minister
minister to institute a recovery plan after its
its
7
gender equality
equality
unprecedented economic
economic slide. These events confirm the role gender
renewed interchange
interchange between the public and private
can play in the renewed
private sectors.
opportunities
Norway's Corporate Board Quota
Quota Law ("CBQ") exposes
exposes the opportunities
through
gender.
relationship
the
public/private
public/private
and complexities
complexities in rethinking
available
All Socialists
Socialists Now, NEWSWEEK,
NEWSWEEK, Feb. 7,
7, 2009, available
I. Jon Meacham & Evan Thomas, We Are All
at http://www.newsweek.com/id/183663.
http://www.newsweek.comlidl IS3663.
Thing, N.Y. TIMES,
Meltdown's a Guy Thing,
2.
Dobrzynski, Maybe the Meltdown's
TIMES, Nov. 16, 2008,
200S, at WK5;
WK5;
2. Judith H. Dobrzynski,
2008, available at
at
Apr. 14, 200S,
Hormones, FINANCIAL TIMES, Apr.
Their Hormones,
John Coates, Traders
Traders Should Track Their
=
1. Marianne
Id-Il dd-b5b I-0000779fd2ac.html?nclickcheck I.
htp://www.fl.com/cms/s/0/9973fb0a-Oa
http://www.ft.comlcms/slO/9973fbOa-Oald-lldd-b5bl-0000779fd2ac.html?nclick_check=
Marianne J.
medicine, has argued that in all previous ages, from caves up until
Legato, aa specialist in gender-specific medicine,
the Second World War, men excelled by taking risks, having short attention spans, and being driven by
at
ego. E. Kinney Zalesne, Guys Left Behind (GLBs), WALL ST. J., June 2, 2009, available at
skills can
24386767941072379.html. In the Information Age, these skills
http://online.wsj.com/article/SBI
http://online.wsj.comlarticle/SBI243S6767941072379.html.
counterproductive.
actually be counterproductive.
at
Jobs, N.Y. TIMES, Mar. 13, 2009, available at
InThis
This Recession,
3. Floyd Norris, In
Recession, Men Are Using Jobs,
http://www.nytimes.com/2009/03/14/business/economy/14charts.html?_r=3.
http://www.nytimes.coml2009/03/14/business/economy/14charts.html?_r= 3.
Id.
4. Id.
Id.
5. [d.
Universe, N.Y. TIMES, Feb. 7, 2009 available at
Kristof, Mistresses of the Universe,
6. Nicholas D. Kristof,
at
http://www.nytimes.coml2009/02/0S/opinionlOSkristof.html.
http://www.nytimes.com/2009/02/08/opinion/08kristof.html.
13, 2008,
Mess ",
",FINANCIAL TIMES, Oct. 13,
Women to Clean Up "Male Mess
7. Sarah O'Connor, Icelandic Women
200S,
http://www.ft.com/cms/s/0/c347a766-994b-Ildd-9d48-000077b07658.html. See John F.
available at http://www.ft.comlcms/s/0/c347a766-994b-lldd-9d4S-000077b0765S.html.
at
1, 2009, available at
Names New
New Prime Minister,
Bums, Iceland Names
Minister, N.Y. TIMES, Feb. I,
of first
http://www.nytimes.com/2009/02/02/world/europe/02iceland.html (noting Iceland's naming of
http://www.nytimes.coml2009/02/02/worldieurope/02iceland.html(noting
female, openly gay prime minister).
56
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Feminizing
Corporate Imperative
Feminizing Capital:
Capital: A Corporate
Imperative
The CBQ mandated that all publicly-listed
publicly-listed corporations
corporations in Norway repopulate
their boards to include
include at least forty percent
percent women by January 1,
I, 2008.8
2008. 8
Norway's dramatic intervention sought to feminize corporate
corporate leadership
leadership in one
one
9
fell swoop, and it succeeded
Noncompliance would result in
succeeded in doing so.
SO. Noncompliance
dissolution of the corporation. This draconian penalty induced all covered
covered
corporations
corporations to comply. Over twenty years ago, Scandinavian
Scandinavian countries
countries
adopted
l0 At the time, they were radical
adopted quotas to remedy electoral inequality. 10
radical
outliers, but now most of the world's countries
countries have followed. "1
II As the world's
world's
first law to mandate
representation on the boards of
of
mandate the percentage of female representation
publicly-traded
of
publicly-traded corporations,
corporations, the CBQ may again foretell the wider adoption of
what is now labeled a radical remedy.
Over the past few decades, the political
particularly in Anglophone
political state, particularly
Anglophone
countries, has adopted private
private sector values and methods. U.S. policies
policies
emphasized reducing the size of government, leaving increasingly substantive
emphasized
8. See infra Part I.B.
1.8. Public Limited Companies Act 1997.
Sid Linstad, A
A Story of Success, http://eng.kilden.forskningsradet.no/c52778/nyhetlvis.html?tid
http://eng.kilden.forskningsradet.no/c52778/nyhet/vis.html?tid
9. Siri
=57242 (last
5, 2009).
(last visited Nov. 5,
1972, the Swedish Liberal Party was the first Swedish
Swedish party to require a minimum level
of
10. In 1972,
level of
women's representation
representation of forty percent. During the 1980s and 1990s the rest of the Swedish parties
parties
represented in the parliament also
International Institute
also set numerical goals for women's participation. International
for Democracy
Democracy and Electoral
Electoral Assistance (IDEA),
(IDEA), Sweden: Women's Representation in Parliament,
http://www.idea.int/news/upload/sweden-women.pdf (last
(last visited Nov. 5, 2009). Norway's
other
http://www.idea.intlnewsluploadlsweden_women.pdf
Norway's other
(Socialist Left,
political parties (Socialist
Left, Centre, Christian People's,
People's, and Liberal)
Liberal) also have
have forty percent quotas
quotas
for electoral candidates
candidates of either
INTERNATIONAL IDEA AND STOCKHOLM
STOCKHOLM UNIVERSITY
either gender. THE INTERNATIONAL
UNIVERSITY
DATABASE
FOR
GLOBAL
DATABASE
OF
QUOTAS
FOR
WOMEN
(2007),
http://www.quotaproject.org/displayCountry.cfm?CountryCode=NO (last visited Nov. 5,
5, 2009). In
http://www.quotaproject.orgidisplayCountry.cfm?CountryCode=N0
In
Denmark, the Socialist People's
People's Party was the first party to introduce a forty percent
percent quota
quota in 1977;
candidate
candidate quotas for the European
European Parliament
Parliament were adopted in 1983 (of forty percent
percent for both sexes); the
Social Democratic
Democratic Party adopted party quotas of forty percent for women in 1983; and candidate
candidate quotas
for local and regional elections
elections in 1988 of forty percent for both sexes. Id.
11. Now over half of the signatories to the Convention for the Elimination
Elimination of All Forms of
of
II.
Discrimination against Women ("CEDAW"),
("CEDA W"), one of the most-widely
most-widely subscribed international treaties,
remedy political inequality. Women's political representation
representation is a theme
maintain some type of quota to remedy
Why
I have explored in previous
previous work. See generally Darren Rosenblum, Internalizing Gender: Why
International
International Law Theory Should Adopt Comparative Methods, 45 COLUM.
COLUM. J. TRANSNAT'L L. 759
759
(2007) [hereinafter
[hereinafter Rosenblum, Internalizing Gender]; Darren Rosenblum, Parity/Disparity: Electoral
Electoral
1119
REV. 1119
Gender Inequality on the Tightrope of Liberal Constitutional Traditions, 39 U.C. DAVIS L. REV.
[hereinafter Rosenblum, Parity/Disparity]. CEDA
CEDAW,
W, adopted in 1979 by the UN General
(2006) [hereinafter
Assembly, is often described as an international
international bill of rights for women. Consisting
Consisting of a preamble
preamble and
Assembly,
thirty articles, it defines
defines what constitutes
constitutes discrimination
discrimination against women and sets up an agenda
agenda for
for
national action to end such
such discrimination. By accepting
accepting the Convention, States commit themselves to
discrimination against women in all forms, including: to
undertake a series of measures to end discrimination
to
incorporate the principle of equality
equality of men and women in their
their legal system, abolish all discriminatory
discriminatory
laws and
appropriate ones prohibiting discrimination
discrimination against women; to establish tribunals
laws
and adopt
adopt appropriate
tribunals and
other public institutions to ensure the effective protection of women
women against discrimination;
discrimination; and to
ensure
ensure elimination
elimination of all acts of discrimination
discrimination against women by persons, organizations
organizations or enterprises.
enterprises.
Countries that have ratified
legally bound to put its provisions
provisions into
ratified or acceded to the Convention are legally
practice. They are also committed to submit national reports, at least every four years, on measures
measures they
Advancement of Women,
have taken to comply
comply with their treaty obligations. Division
Division for the Advancement
Convention
Convention on the Elimination
Elimination of All Forms of Discrimination against Women,
http://www.un.org/womenwatch/daw/cedaw (last
(last visited Nov. 5, 2007). As of November 2,
http://www.un.orglwomenwatchldaw/cedaw
2, 2008, 185
countries are part of the Convention. The United States is the largest
largest non-member.
57
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Berkeley
Berkeley Business Law Journal
Vol. 6.1,
6.1, 2009
I2
levels of regulation
regulation and execution to the private sector. 12 Outsourcing
Outsourcing became
became
commonplace in every aspect of government, from the Department of
of
contractors in Iraq to the Internal Revenue
Defense's use of private
private security contractors
collection agencies.
Service's use of collection
Equality efforts
efforts evolved in the wake of this privatization
privatization wave. U.S.
U.S.
antidiscrimination law and theory reflects
equality jurisprudence's
jurisprudence's emphasis on antidiscrimination
privatized world forces
the primacy
primacy of the private sector. The context of a privatized
Antidiscrimination work seeks to punish
gender justice efforts to play defense. Antidiscrimination
discriminatory conduct, rather than shift underlying
and prevent discriminatory
underlying inequities in
favor of broader
broader balance.
balance. These efforts fail to rectify
rectifY gender-based
gender-based power
power
disparities. Although U.S.
U.S. jurisprudence
jurisprudence eschews quotas,"
quotas,I33 the economic
economic crisis
crisis
government
has begun to diminish free-market proponents'
proponents' fear of government
14
intervention. I4
The CBQ's
CBQ's novel interaction between the public and private
impermeable divide between the state
sectors heralds the end
of the artificially impermeable
5
1
corporation.
the
corporation. 15
and
12. See,
100,000 Contractors in Iraq, WASH.
WASH. POST, Dec. 5, 2006,
See. e.g.,
e.g., Rene Merle, Census Counts 100.000
http://www.washingtonpost.com/wpdyn/content/article/2006/12/04/AR20061204013
available
at
http://www.washingtonpost.com!wpdyn/contentlarticle/2006/12/0
41 AR200612040 13
I I.html (exemplifying
II.html
(exemplifying the Department of Defense's outsourcing security in Iraq and elsewhere); Internal
Internal
Home
Debt
Revenue
Service
Home
Page-Private
Collection
Program,
http://www.irs.gov/businesses/small/article/0,,id=155136,00.html
(last visited Nov. 5, 2009)
http://www.irs.govlbusinesseslsmall/article/0.. id=155136.00.html(last
2009) (noting the
Internal Revenue Service may hire private
private collection agencies to go after negligent
negligent taxpayers); Alan
Cooperman
to Reimburse Faith Groups for Aid,
Aid, WASH.
Cooperman & Elizabeth Williamson, FEMA Plans 10
WASH. POST,
Sept.
27,
2005,
available
http://www.washingtonpost.com/wp2005,
at
http://www.washingtonpost.com!wpdyn/content/article/2005/09/26/AR2005092601799.html
dyn/contentlarticle/2005/09/26/AR2005092601799.html (noting the Federal
Federal Emergency Management
Management
Agency reimburses
reimburses churches that provide shelter and food in crises, such as the aftermath of Hurricane
Katrina).
13. Challenges properly raise questions of their efficacy and dangerous
13.
dangerous identitarian
identitarian effect in
in
reifying
colorblindness
reifying stereotypical identities.
identities. Rejection
Rejection of quotas unites the right, with its pretense of colorblindness
and the unbiased meritocracy
meritocracy myth, and the left, with its rigid anti-essentialism (which presumes group
identity cannot determine individual traits). "Feminist
"Feminist debate has raged over essentialism and
antiessentialism, whether women inherently differ from men.
men. Some feminists, many of them French,
argue that the sexes are fundamentally different. This fixed idea of womanhood fosters cohesion at the
cost of reducing the gender identity's fluidity.
fluidity. Anti-essentialist feminism holds that no essential notion of
of
'womanhood' exists."
exists." Rosenblum,
Rosenblum, Parity/Disparity,
II, at
1136-37. This theoretical
'womanhood'
Parity/Disparity, supra
supra note
note II,
at 1136-37.
theoretical
stalemate, along with the rise of the private, has led to an overreliance on antidiscrimination laws and
and
voluntary efforts such as diversity and corporate
corporate social responsibility that fail to foster equality. See
See
generally Darren
Darren Rosenblum, Loving Gender Balance: Refraining
Reframing Identity-Based Equality Remedies, 76
FORDHAM L. REV. 101 (2008)
(2008) [hereinafter Rosenblum, Loving Gender Balance].
FORDHAM
government intervention in the economy has long been a dominant
14. Fear
Fear of government
dominant concern in U.S.
laissez faire economic
economic regulation. Laissez-faire
Laissez-faire is the French
French expression which, literally translated,
means "allow
"allow them
means
them to
to do."
do." Political
Political economist
economist Adam Smith
Smith believed
believed that
that humans should be free to
govern their
own economic
govern
their own
economic affairs without state intrusion. His theory was that the market
market place would
naturally correct and regulate any economic
economic and social inequities and would in turn
tum produce
produce greater
greater
interference. ADAM SMITH, AN INQUIRY INTO THE
output when permitted
permitted to operate free of state interference.
NATURE AND
(1776), reprinted in TAKING SIDES:
NATURE
AND CAUSES
CAUSES OF THE
THE WEALTH OF NATIONS
NATIONS (1776),
SIDES: CLASHING
VIEWS ON
ON CONTROVERSIAL
VIEWS
CONTROVERSIAL ISSUES
ISSUES IN BUSINESS ETHICS AND SOCIETY 5-11 (Lisa H. Newton &
Maureen M. Ford eds., 9th ed.,
McGraw-Hill 2003). Although more recent mainstream economists have
ed., McGraw-Hili
accepted the need for governmental intervention to avert a worsening
worsening of the crisis, resistance still
surfaces as
2009's "tea
"tea parties"
parties" suggest.
Robbins, Tax
Tax Day
Met with
Tea Parties, N.Y. TIMES,
surfaces
as 2009's
suggest. See
See Liz
Liz Robbins,
Day is
is Met
with Tea
Apr. 15,2009,
15, 2009, available
at http://www.nytimes.com/2009/04/16/us/politics/I6taxday.html.
Apr.
available at
http://www.nytimes.com!2009/04/16/uslpoliticslI6taxday.html.
15. Although
some may
argue that
divide
or historical antidiscrimination laws bridge this divide
15.
Although some
may argue
that existing
existing or
as well,
well, these
these laws
regulate behavior by employers but do not mandate
as
laws regulate
mandate methods for choosing
58
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Feminizing Capital:
Capital: A
A Corporate
Corporate Imperative
Imperative
Feminizing
This Article
Article argues
argues that
that the
the CBQ
CBQ fosters
fosters aa productive
productive symbiosis
symbiosis between
between
This
the public
public and
and private
private spheres.
spheres. Recent
Recent studies
studies indicate
indicate that
that higher
higher numbers
numbers of
of
the
women
in
executive
positions
result
in
stronger
rates
of
corporate
return on
on
women in executive positions result in stronger rates of corporate return
equity ("ROE").
("ROE"). 1616 Countries
Countries with
with higher levels of
of women's political
political
equity
representation also
also tend
tend to
to have higher
higher levels of
of economic
economic growth.
growth. Increasing
representation
women's workforce
workforce participation
participation outside
outside the
the home
home can
can drive
drive overall economic
economic
women's
17
17
growth.
These
factors
prompted
the
CBQ's
to argue
argue for the
CBQ's proponents to
growth. These factors
economic imperative of
of women's
women's corporate
corporate leadership. The
The CBQ
CBQ will not
economic
not only
ameliorate gender
gender inequality, but will bring
bring new life
life to corporate
corporate leadership.
ameliorate
Norway feminized
feminized capital by engaging the private sector
sector in the public goal of
Norway
of
fostering women's corporate leadership. Such
Such policies, if
if universalized, would
would
fundamentally shift both
both corporate governance and gender governance. 18
18 The
fundamentally
resulting feminization
feminization of transnational corporations
corporations could actually reduce
reduce
resulting
19
·
I'
19
inequality.
gender
gen der mequa Ity.
This article
article proceeds
proceeds in four parts. Part One examines the Norwegian
Norwegian
This
Corporate Board Quota as a comparative
comparative endeavor in three subsections. First, it
Corporate
reviews
Norway's extensive
extensive gender equality legislation to explain the CBQ's
CBQ's
reviews Norway's
context.
Second,
it
discusses
the
origins
and
purpose
context. Second,
purpose of the law and assesses its
enforcement methods in contrast to political representation quotas. Finally, Part
enforcement
extensive public role in
One connects these gender equality efforts to Norway's extensive
matters
"private" in the United States. The CBQ serves as a
matters viewed as "private"
launching point to explore this public/private
launching
public/private symbiosis for the remainder
remainder of
of
the Article.
Article.
Part
Part Two
Two explores
explores the
the need to blur the public/private
public/private distinction in order
order to
to
support
the
public/private
symbiosis
in
the
corporate
context.
Governmental
support the public/private
corporate
20 Governmental
regulation
of aa traditionally
traditionally private
private business
business decision,
decision, such as
as a corporate
corporate
regulation of
board's
composition, evokes feminist
board's compOSItIon,
feminist debate over
over the public/private
public/private
dichotomy. 2 1 These
interrogated "the line drawn
dichotomy.21
These critiques
critiques interrogated
drawn between
between the
the 'public'
'public'
22
world of
government
of government and the 'private'
'private' world
world of the
the home,"
home,,,22 arguing
arguing for the
the
management.
management.
16.
16. See
See infra
infra p.
p. 53
53 and
and note
note 234.
234. Mixed-sex
Mixed-sex boards
boards had an
an average
average ROE
ROE of
of almost
almost four
four percent
percent
higher
higher than
than all-male
all-male boards
boards
17.
17. See
See infra Part
Part IV.B.
IV.B.
18.
18. This
This governance
governance takes
takes place
place on
on multiple
multiple levels
levels and
and through
through aa variety
variety of
of international
international
institutions,
and the
the Convention
Convention on
on the
the Elimination
Elimination of
of All
All
institutions, including
including international
international financial
financial institutions
institutions and
Forms
Forms of
ofDiscrimination
Discrimination against
against Women
Women ("CEDAW").
("CEDA W").
19.
19. This
This isis about
about feminization
feminization because
because of
of the
the current
current domination
domination of
of men
men and
and masculinity,
masculinity, reflecting
reflecting
aa deeply
of men/women,
men/women, male/female,
male/female, and
and masculine/feminine.
masculine/feminine. Although
Although we
we know
know
deeply entrenched
entrenched norm
norm of
from
from Judith
Judith Butler
Butler that
that all
all gender
gender isis performance,
performance, and
and that
that these
these binaries
binaries are
are inin fact
fact far
far more
more
complicated,
See generally
generally
complicated, itit isis clear
clear that
that the
the masculine,
masculine, in
in whatever
whatever form,
form, dominates
dominates the
the feminine.
feminine. See
JUDITH
JUDITH BUTLER,
BUTLER, GENDER
GENDERTROUBLE
TROUBLE (1999);
(1999); JUDITH
JUDITH BUTLER,
BUTLER, UNDOING
UNDOING GENDER
GENDER (2004).
(2004).
20.
20.
21.
21.
22.
22.
(1999)
(1999)
See
See infra
infra Parts
Parts ILA,
II.A, I.B,
II.B, II.C.
II.C.
See
See infra
infra Parts
Parts IC,
I.C, 11.
II.
Hilary
Hilary Charlesworth,
Charlesworth, Feminist
Feminist Methods
Methods in
in International
International Law,
Law, 93
93 AM.
AM. J.
J. INT'L
INT'L L.
L. 379,
379, 382-83
382-83
(internal
Feminist Methods].
Methods]. See
See also
also Hilary
Hilary
(internal citations
citations omitted)
omitted) [hereinafter
[hereinafter Charlesworth,
Charlesworth, Feminist
59
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Berkeley
Berkeley Business Law Journal
Vol. 6.l,
6.1, 2009
elimination
distinctions because they relegate women to the "private"
"private"
elimination of such distinctions
23
in which men controlled the domestic sphere. Despite critical
sphere,23
sphere,
differences
"private" corporate
context
differences between the two non-state spheres, the "private"
corporate context
and the "private"
"private" family context, the state's role in each is contested. This
public/private theory supports
supports thinking of the CBQ as a primary example of the
relationships
within
two
public/private dichotomies, governmentlbusiness
government/business 24
and
relationships
public/private
effective
develop
simultaneously
which
market/family,
market/family,
simultaneously develop effective inequality
inequality remedies.
remedies. 24
Part Three explores
explores how private means
means of capital foster and define
define the
Bolstering women's role in economic
public goal of gender equality. Bolstering
development benefits gender equality
equality by clarifying
clarifying their contribution to the
public economy.
economy.255 The CBQ breaches the much-decried
much-decried "glass ceiling.,,26
ceiling. 26
While such private
private efforts may advance gender
gender equality,
equality, they may also come to
define gender equality, arousing
criticism
of
the
commodification and reduction
arousing criticism ofthe commodification
27
work. Societies in pursuit of greater equality must account for
of women's work.27
such costs.
Part Four explores
explores how public
public norms influence
influence private action. Private
corporations and international
corporations
international financial institutions ("IFIs")
("IFls") benefit from
promoting and managing gender equality. These institutions derive moral
28
calculus. 28
their policy
into their
gender equality
legitimacy from the introduction of
of gender
equality into
policy calculus.
legitimacy
Corporations attempt
attempt to develop similar legitimacy
legitimacy through Corporate Social
Responsibility
Responsibility ("CSR")
("CSR") efforts. Women, men, and capital all benefit
benefit from this
29
corporations and IFIs
change, fortifying the corporations
IFls that steer the world economy.
economy.29
A
productive
productive public/private
pUblic/private symbiosis requires
requires "public"
"public" values, such as economic
economic
empowerment for women and men, to institute rules and regulations like the
empowerment
"private" sector.
CBQ in the "private"
Feminizing capital
corporate governance and
capital brings women to corporate
Charlesworth,
Charlesworth, Worlds Apart: Public/Private Distinctions in International Law,
Law. in PUBLIC AND PRIVATE:
PRIVATE:
FEMINIST LEGAL
LEGAL DEBATES
DEBATES 243, 256-59 (Margaret
(Margaret Thornton ed., 1995).
FEMINIST
1995).
ILA, II.B.
lI.B.
23. See infra Parts II.A,
24. But see Kerry
Kerry Rittich, The Future of Law and Development:
and
Development: Second Generation Reforms and
Social, 26 MICH. 1.
J. INT'L L. 199,
200 (2004)
of
199,200
(2004) [hereinafter Rittich, The Future of
the Incorporation of the Social,
Law and Development].
25. See infra Part Ill.
III. The liberal economic model
model suggests that when the market assigns a
a value to
women's
women provide
to childcare
childcare and housework by performing
women's work,
work, it
it reduces
reduces the
the subsidy
subsidy that
that women
provide to
this work without monetary compensation.
26. See infra Part II.B.
IlI.B.
Rittich, Engendering Development/Marketing
Development/Marketing Equality, 67 ALB. L. REV.
27. See generally Kerry
Kerry Rittich,
(2003).
575 (2003).
28. See
IV.A. The
The most
well known
known examples
financial institutions
28.
See infra
infra Part
Part IV.A.
most well
examples of
of international
international financial
institutions are
the World
World Bank and the International Monetary
Monetary Fund ("IMF"). These institutions devote enormous
resources
to advocating
social and
and economic
economic changes
changes in
the various
resources to
advocating social
in the
various countries to which they lend. These
institutions were established under the 1944 Bretton Woods Agreement, which sought to lift post-war
post-war
Europe out
of ruin.
ruin. See
See generally
Europe
out of
generally Michael
Michael D.
D. Bordo,
Bordo, Is There a Good Case for a New Bretton Woods
AMER. ECON.
REV. 317 (1995).
International Monetary System?, 85
85 AMER.
ECON. REV.
(\ 995). Now however, the World Bank's
Bank's
and IMF
focus their
their activities
on assisting
assisting developing
and reducing
developing nations
reducing poverty.
poverty. See generally
and
IMF focus
activities on
nations and
Rittich, The Future ofLaw and Development, supra note
note 24.
24.
Rittich,
29. See infra Part IV.B.
IV.B.
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Feminizing Capital: A Corporate Imperative
Feminizing
demasculinizes the corporate
demasculinizes
corporate world. This article
article concludes by asserting the
value of the public/private
pUblic/private symbiosis
symbiosis to policy issues beyond gender, in which
a fruitful balance
balance of each
each would ameliorate a broad range of group inequalities.
economically-efficient and sociallyThe rise of this and other innovative
innovative economically-efficient
sociallyoptimal remedies
entrenched inequity
purchase of this
remedies to entrenched
inequity point to the rising purchase
public/private
public/private symbiosis.
I.
CONTEXTUALIZING NORWAY'S
CONTEXTUALIZING
NORWAY'S CORPORATE
CORPORATE BOARD QUOTA
equality efforts
This Part situates the CBQ in the context of broader gender
gender equality
and explores
explores Norway's distinctive engagement
engagement in public and private problems.
Gender Equality
A. Norway's
Norway's Gender
Equality Efforts
The CBQ is not Nonvay's
Notray's only attempt to regulate gender
gender inequality by
by
of
intervening in the market. Norway's legal system possesses a broad range
range of
gender
inequality
remedies
gender
remedies that address family inequities, domestic violence,
and political discrimination. In 1993, Norway
Norway reinforced prior legislation
enforcement
regarding parental leave for fathers, thus remedying an enforcement
30
shortcoming. 3o
Few men had exercised
exercised this right previously, but following the
leave. 3311
to parental
right to
their right
revision, eight out of ten men take
take advantage
advantage of
of their
parental leave.
This action reflects
of
reflects Norway's
Norway's focus not on simply improving the status of
1998, Norway instituted
women, but rather on gender equality in general. In 1998,
instituted a
32 This plan
cash benefit scheme to permit families greater choice in childcare. 32
guaranteed approximately
approximately $420 a month to the families of every
every child between
between
the ages of one and three, so long as the child did not attend a subsidized day
care center.
In April 2002, Norway's
1978
Norway's Parliament, the Storting, amended
amended the 1978
Gender Equality Act, renamed the Act Relating
Relating to Gender
Gender Equality
Equality ("Act") in
"promote gender equality.,,33
equality." 33 Particular
Particular attention
2005, which sought to "promote
centered on "equal
"equal opportunities in education,
education, employment, and cultural and
34
professional
advancement."
The
2002
amendments to the Act intended
professional advancement.,,34
amendments
intended to
already-existing duties of public
public
promote workplace equality
equality by extending already-existing
officials to private employers,
employers, such as equal pay for work of equal value, longer
longer
maternity leave, affirmative action, and sexual harassment
pregnancy and maternity
harassment
35
protections. 35
The Act requires employers
employers to implement
implement concrete steps towards
towards
MINISTRY OF
THE AcT
GENDER EQUALITY
30. MINISTRY
OF CHILDREN
CHILDREN AND
AND EQUALITY,
EQUALITY, THE
ACT RELATING
RELATING TO GENDER
EQUALITY (2007),
http://www.regjeringen.no/en/doc/Laws/Acts/The-Act-relating-to-Gender-Equality-the-.html?id=454568
http://www.regjeringen.no/en!doclLawslActslThe-Act-relating-to-Gender-Equality-the-.html?id=4 54568
(last visited Nov. 6, 2009).
Id.
31. [d.
Id.
32. [d.
Id.
33. [d.
34. [d.
Id.
34.
35. See Kristine Nergaard, Gender Equality Act to be Strengthened (2002),
61
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Berkeley Business
Business Law
Law Journal
Journal
Berkeley
Vol.
Vol. 6.1,
6.1, 2009
2009
36
SO.36
compliance and
and to report
report on
on their
their progress
progress in
in doing
doing so.
compliance
Norway stated
stated in its
its Fifth
Fifth and Sixth Periodic
Periodic Reports
Reports to the
the Convention
Convention
As Norway
the Elimination
Elimination of All
All Forms
Forms of Discrimination
Discrimination Against
Against Women
Women
on the
("CEDA W"), domestic violence
violence remains the primary
primary source
source of inequality
inequality
("CEDAW"),
37
between Norwegian
Norwegian men and women. 37
response to
to this disparity, Norway
Norway
In response
between
developed measures
measures to prevent
prevent violence
violence against women,
women, including
including providing
providing
developed
services, shelter,
shelter, and
and support
support to casualties
casualties of
of gender-related
gender-related violence. 38 Norway
Norway
services,
Procedure Act to provide
also
also amended
amended its 2004
2004 Criminal
Criminal Procedure
provide leverage
leverage to victims of
of
violence
violence and sexual
sexual offenses.
offenses.
Amidst these
these equality
equality efforts,
efforts, Norway's
Norway's level of women's
women's political
39
Norway's
participation consistently
consistently ranks near
near the
the highest
highest in the world. 39
Norway's
participation
political
political party quota mandates that women
women and men each
each hold at least forty
forty
4o
percent of party positions.
positions.40 Female
Female representation
representation in the Storting is higher than
41
it is in municipal councils.
councils.4' This strong representation
representation of political
political parity
parity
reveals the political
political quota's success. In an effort to extend these results to the
private sector, Norway
Norway instituted the CBQ.
private
Quota
Board Quota
B. Norway's
Norway's Corporate
Corporate Board
The Storting passed
passed the CBQ in November
November 2003,
2003, requiring
requiring that the boards
boards
42
non-privately owned
owned companies
companies be comprised
comprised of at least
least thirty-three
thirty-three to
to
of non-privately
http://eurofound.europa.euieiro/2002/04/inbrief/no020410In.html;
Committee on the
http://eurofound.europa.eu/eiro/2002/04/inbrief/noO20410n.html; Press Release, Committee
Equality,'
Elimination of Discrimination against Women [CEDAW],
[CEDA W), Norway Called 'Haven
'Haven for Gender
Gender Equality,'
Convention, U.N.
Committee Examines Reports on Compliance with Convention.
As Women's
Women's Anti-Discrimination Committee
(2003), http://www.un.orglnews/press/docs/2003/wom1377.doc.htm
http://www.un.org/news/press/docs/2003/woml37 7.doc.htm (last
Doc. WOM/1377,
(last visited
WOMIl377, (2003),
5, 2009).
Nov. 5,
2009).
36. See Norwegian
Norwegian Ministry for Children and Equality, Measures and Methods in Gender Equality
(last visited Nov. 5,
5, 2009).
2009).
Efforts, http://www.norway.gov.er/policy/gender/policy/policy.htm
http://www.norway.gov.er/policy/gender/policy/policy.htm (last
37. /d.
Id.
38. Id.
39. Id.
Id.
Company
40. Norwegian
Norwegian Ministry of Children and Equality, Representation of Both Sexes on Company
http://www.regjeringen.no/en/dep/bld/Topics/Equality/ruies-on-gender-representation-onBoards,
http://www.regjeringen.no/enideplbldITopics/Equality/rules-on-gender-representation-on·
Nov. 5,
5, 2009).
compan.html?id=416864
compan.html?id=416864 (last visited Nov.
41. Norwegian Ministry for Children and Equality, Measures and Methods in Gender Equality
41.
Efforts, supra note 36.
42. The law covers state-owned limited liability companies, state-owned
state-owned enterprises, companies
public limited
incorporated by special litigation, inter-municipal companies, and privately owned public
five hundred on the Norwegian stock exchange. Norwegian
companies, of which there are about five
Ministry of Children and Equality, Representation of Both Sexes on Company
Company Boards, supra note 40.
With regard to public limited companies in the private sector, an agreement was signed with the
if the desired gender
business sector stipulating that these regulations would not come into effect if
gender
Id. "According
"According to figures from Statistics
balance was achieved voluntarily during the course of 2005. Id.
Ist, 2005. Of these, 68 (13.1%)
Norway, there were 519 public limited companies in Norway as of July 1st,
(13.1%)
in
satisfied the legal provisions relating to gender representation. The average women's representation in
public limited
the permanent board appointments (owner and employed elected) in Norwegian
Norwegian public
Government decided the implement the
Stoltenberg Government
companies was 15.5%. In light of this, the Stoltenberg
in
Equality, Women in
Children and Equality,
2006." Norwegian Ministry of Children
as from
from [sic)
[sic] I January 2006."
regulations as
http://www.regjeringen.no/en/dep/bldfropics/equality/women-inNorwegian
Politics,
http://www.regjeringen.no/enideplbldITopicsiequality/women-inlaw does not
not apply to
to privately-owned, nonNov. 5,
5, 2009). The law
visited Nov.
politics.html?id=437166 (last visited
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Feminizing Capital: A Corporate
Imperative
Feminizing
Corporate Imperative
43 The exact percentage
fifty percent of each
each gender.43
percentage of gender representation
required for each company
company varies proportionally
proportionally to the size of the board, but
boards with over ten members
members must maintain a forty percent ratio for each
4
gender.
gender. 44
The forty percent requirement
requirement does not apply to boards of nine or
fewer members because it would practically
practically result in a representational
requirement
requirement of fifty percent. If the board is between
between two and nine members, the
"If the
law proscribes that individuals
individuals of both genders must hold positions: "If
board has two or three members,
represented. 4 5
members, both sexes must be represented.,,45
Interestingly,
(the Public
Interestingly, Norway enacted the CBQ under its business law (the
discrimination legislation (like the
Limited Companies
Companies Act) rather
rather than as anti discrimination
Act Relating to Gender Equality).46
Equality). 46 The forty percent
requirement creates
percent requirement
creates and
maintains gender balance, preventing
preventing either sex from sinking far below a level
proportionate
1, 2006, every newly listed company
proportionate to population. As of January 1,
that seeks to register on the Oslo Stock Exchange (OSE) must satisfy the
47
CBQ's requirements
requirements upon the formation of its initial
initial board.4 7 The CBQ
provided
provided a two-year
two-year transitional
transitional period; existing companies
companies were not required
48
January 2008.
2008. 48
However, for any company formed after
after
to comply until January
49
January
January 1,
I, 2006, the punishment for noncompliance
noncompliance is company dissolution. 49
listed companies,
companies, which comprise the majority
majorIty of Norwegian
Norwegian companies. European Professional
Women's Network. Women on Boards: the Inside Story on Norway's 40% Target,
http://www.europeanpwn.net/index.phparticleid=150 (last visited Nov. 5,
5, 2007). "No
"No gender
gender
http://www.europeanpwn.netiindex.php?article_id=150
representation rules have been proposed for private limited liability companies. Most private limited
liability companies in Norway are small family companies
companies where the owners are physical person who
personally attends the board. The legislation on gender representation does not fit very well for this kind
of companies. In public limited companies, on the other hand, the shares are generally more widely
widely
spread, and the company's management
feature." Norwegian
management has aa less personal feature."
Norwegian Ministry of Children
and
Equality,
Balanced
on
Company
Boards,
Balanced
Gender
Representation
http://www.regjeringen.no/en/dep/bid/Topics/andre/Balanced-gender-representation-onhttp://www.regjeringen.no/en/deplbld/Topics/andre/Balanced-gender-representation-oncompan.html?id= 1250 (last
2009).
compan.html?id=1250
(last visited Nov. 5,
5,2009).
43. See Norwegian Ministry
Ministry of Children and Equality, Representation of Both Sexes on Company
Company
Boards, supra
supra note 40.
44. Id.
Id.
45. In other words, ifif there are only two board members, one must be male and one must be female.
gender and the third member
member must be of the other
other
IIff there are three board members, two must be of one gender
gender. The ratio may be 2:1
Id. "If
"If the board has four or five members, each sex
sex
2: I female or 2:1
2: I male. Id.
shall be represented by at least two representatives.
If the board has six to eight members, each sex shall
representatives. If
be represented by at least three representatives. If
If the board has nine members,
members, each sex shall be
representatives.....
. ."
represented by at least four representatives
" Id.
Id. These statistics require categorizing individuals in
one or the other sex, raising deeper problems with the gender binarism
binarism essential to the operation of the
Corporate
of
Corporate Board Quota (CBQ).
(CBQ). The challenge of how to count transgender people in the evaluation of
adherence to the CBQ
CBQ reflects the problem of underlying gender binarism.
46. Id.
Id.
46.
47. Norwegian Ministry of Children and Equality, Balanced Gender
Gender Representation
Representation on Company
Company
Boards,
supra note 42; Norwegian
Norwegian Ministry
Ministry of Children
Children and Equality, Representation
Representation of
oj Both Sexes on
Boards, supra
Company Boards,
Boards, supra
"[c]ompanies that were
were not registered by 1I January 2006,
Company
supra note 40 (stating that "[c]ompanies
had to fulfil [sic] the demands to be registered.").
48. Norwegian Ministry of Children and Equality, Representation of Both Sexes on Company
Company
supra note 40.
Boards, supra
49. Id.
Id. Experience shows that most companies
in
companies where discrepancies are pointed out correct these in
due time. Therefore,
Therefore, it is unlikely that any companies will be dissolved by the court on account of the
63
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Journal
Berkeley
Vol. 6.1,
2009
6.1,2009
Although every
every corporation
corporation falling
falling under the CBQ's
CBQ's mandate
mandate met
met the
the
Although
As
of
challenging.
January
1,
2008
deadline,
the
compliance
process
proved
challenging.
As
of
proved
process
compliance
the
2008
deadline,
January
2006, only
only 29.6%
29.6% (151
(151 out
out of 510)
510) of
of OSE companies
companies achieved
achieved
July 2006,
public companies
companies lacked
lacked any women
women on
on their
their
compliance, nearly 33%
33% of public
compliance,
50
women who
who serve
serve as board
corporate boards. 50
Further, out of the 562 women
corporate
Norway, only eleven
eleven served
served as chair, suggesting
suggesting the exclusion
exclusion of
of
members in Norway,
members
51
5
women board
board members
members from leadership
leadership positions. 1 As
As of December, 2007, the
women
"women board members
members at listed
listed companies"
companies" had risen
risen
overall percentage
percentage of "women
overall
37%.,,52 The "scramble
"scramble for talent"
talent" to achieve
achieve compliance
compliance
"6% in 2001
2001 to 37%.,52
from "6%
with
with the CBQ led "to
"to the best
best qualified women taking up multiple
multiple
53
directorships.,,53 While
While some
some companies
companies chose
chose women
women from this "small
"small cadre
directorships."
representation rule. According
According to the Public Limited Companies Act, the King (the
(the Ministry)
Ministry) can
gender representation
decide that a forced dissolution shall not be executed because of "substantial
"substantial public interests."
interests." In such
such
pay aa compulsory fine until the conditions are
are in accordance with the
company will have to pay
cases, the company
regarding the board of directors,
law. This regulation applies to different situations such as requirements regarding
the general
Id. Aud Slettemoen,
Slettemoen, one of the drafters of the
general manager, the auditor, and the annual accounts. Id.
may
legislation at the Ministry of Justice, points out that this dissolution penalty is not as severe as it may
appear to non-Norwegians:
About these sanctions, that has been kind of misrepresented in the media, to a
a large extent,
if you don't
because it is the system
system of the company laws in Norway, that if
don't fulfill the
the
requirements for the board
board and the managing director and the accountants, you will be
dissolved. So it is not something new, so every year some companies do not give in their
their
accounts and they are dissolved, and that would be companies that are not operating anymore.
anymore.
Anyway, and so it happens every year that some companies are dissolved because they don't
don't
....
submit their accounts to the company
company registry ....
19, 2008).
(March 19,2008).
Interview with Aud Slettemoen, Senior Counsel, Ministry of Justice, Oslo, Norway (March
50. Chris Noon, A Woman's Place is in the Boardroom,
Boardroom, http://www.forbes.com/corporate
http://www.forbes.com/corporate
governance/2006/09/2 I/leadership-norway-women-lead-govem-cxcn0921 norway.html.
govemance/2006/09/21I1eadership-norway-women-lead-govem-cx_cn_092I
norway.html.
51.
51. Id.
[d. In the summer of 2006, aa Swedish governmental advisor on sex equality proposed that
companies listed on the Stockholm Stock Exchange whose corporate boards are not at least forty percent
percent
to
Id. In order to facilitate the recruitment of women to
female by 2010 should be fined until they comply. Id.
boards of directors, several ministries have been involved in the development of Kvinnebasen, a
where women wishing to become
become board members may register their interest. See Statistics
database where
of
5, 2008). As of
Norway: Focus on Gender Equality, http://www.ssb.no/likestilling-en
http://www.ssb.nollikestillin&-en (last visited Nov. 5,2008).
August 2006, 4,200 women were registered in the database, and it is helping to focus attention on
women's
women's competence: sixty-three percent of the women who have registered have board experience and
Id. Databases have also been established by the
eighty percent have management experience. Id.
of
Confederation
Confederation of Norwegian Business and Industry (NHO), Innovation Norway and the Association of
Equality,
Focus
Statistics
Norwegian
Lawyers.
See
Statistics
Norway:
on
Gender
5, 2009). The Ministry of Trade and Industry has
http://www.ssb.no/likestilling-en (last visited Nov. 5,
http://www.ssb.nollikestillin&-en
also worked closely with the NHO in its efforts to draw attention to women candidates for board
for the development
membership through the Female
Female Future project, and assistance has been provided for
(a meeting place for candidates for board membership and
Styrefaglig moteplass (a
and implementation of StyreJaglig
business leaders). [d.
Id. In cooperation with the Norwegian School of Management (BI), Innovation
(Board Candidates) program to improve the competence
Norway has implemented the Styrekandidater (Board
and raise awareness of both male and female candidates. The Ministry of Trade and Industry has also
of PLCs.
on the
the boards
boards of
financed annual surveys to monitor the development of women's representation on
PLCs.
Id.
Id.
Directors
Shutdown as
as Female
of Norway's Firms Face Shutdown
52. Gwladys Fouche Oslo, Quarter oj
Female Directors
at
GUARDIAN, Dec. 27, 2007, at
Quota By Monday,
Monday, THE GUARDIAN,
Deadline Approaches: Companies must meet 40% Quota
http://www.guardian.co.uk/business/2007/dec/27/norway.female.director.
39, available at http://www.guardian.co.uklbusinessl2007/dec/27/norway.female.director.
Id.
53. [d.
64
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Feminizing Capital:
Capital: A
A Corporate
Corporate Imperative
Imperative
Feminizing
of very
very powerful
powerful and
and influential
influential women,,,54
women," 54 others
others relinquished
relinquished their
of
their public
public
listing to
to circumvent
circumvent the
the CBQ
CBQ altogether.
altogether. 5555 Although most
most firms
firms had
had hired
hired
listing
56
female
members
leading
up
to the
the January
January I,1, 2008
2008 deadline,
deadline, 56 twenty-two
female members leading up to
twenty-two
percent of firms
firms had
had not
not reached
reached the
the compliance mark.
mark.57
percent
57 Despite these
these
difficulties, Norway now
now leads
leads the
the world in
in its
its percentage
percentage of female
female corporate
corporate
difficulties,
board members
members as
as a result
result of
of its
its unique Corporate
Corporate Board
Board Quota.
Quota.5588
public policy goal
goal of
of the
the CBQ is primarily
primarily to increase
increase competitiveness.
The public
competitiveness.
one of
of the
the drafters stated,
stated, "many
"many people also
also think
think that the
the reasoning
reasoning behind
As one
behind
these gender equality
equality rules is gender
gender equality,
equality, but
but in
in fact itit isn't,
isn't, it's
it's aa side
side
effect .. .. .. the point is
is that you need to use all the best people, and
and the
competence, and
and when
when you
you have all these
these kind of
of invisible things
things that keep half
half
competence,
population out of
of the board room,
room, something
something needs
needs to be done, to
of the population
to get
get the
54. Id.
Id. International
International media
media outlets
outlets have been
been reporting that this select group
group of highly
highly qualified
qualified
54.
women has
has been
been (unfortunately)
(unfortunately) dubbed
dubbed the
the "golden
"golden skirts."
skirts." Amir
Amir Maki,
Maki, Norway's
Norway's "Golden
"Golden Skirts
Skirts ",
",
women
RISK
&
GOVERNANCE
BLOG,
Feb.
22,
2008,
RISK
&
GOVERNANCE
BLOG,
Feb.
22,
200S,
http://blog.riskmetrics.com/2008/02/norways-golden-skirtssubmitted.html.
http://blog.riskmetrics.coml200S/02/norways~0Iden_skirtssubmitted.htm!.
55. Vibeke
Vibeke Laroi
Laroi &
& Robin
Robin Wigglesworth,
Norsk Hydra
Orkla Rush
Rush to Add Women Directors Under
55.
Wigglesworth, Norsk
Hydro Orkla
Norway
Law,
BLOOMBERG.COM,
31,
2007,
Norway
Law,
BLOOMBERG.COM,
Dec.
31,
2007,
http://www.bloomberg.com/apps/news?pid=20601085&sid=aS.J0gCborKs&refer-europe.
http://www.bloomberg.comlapps/news?pid=2060
I OS5&sid=aS.JOgCborKs&refer=europe.
56. Stephanie
Holmes, Smashing
the Glass Ceiling, BBC
I1, 2008,
56.
Stephanie Holmes,
Smashing the
BBC NEWS,
NEWS, Jan. II,
200S,
http://news.bbc.co.uk/2/hi/business/7176879.stm.
http://news.bbc.co.ukl2/hilbusinessl7l
76S79.stm.
57. Statistics
Gender Representation
Representation in
Public Limited
in Public
Limited Companies: Four in Five Fulfill
57.
Statistics Norway,
Norway, Gender
Gender
(2008), http://www.ssb.no/englishisubjects/IOIO
http://www.ssb.no/english/subjects/10/01/1/ neren/arkiv/art-2008-01-14Gender Requirements,
Requirements, (200S),
necenlarkiv/art-200S-0 1-1401
-en.html.
Ol-en.htm!.
58. Holmes,
note 56.
The issue
5S.
Holmes, supra
supra note
56. The
issue of
of low female corporate board representation is widespread.
When
CBQ, women
seven percent
and
Norwegian corporate board
board and
When Norway
Norway passed
passed the
the CBQ,
women held
held only
only seven
percent of Norwegian
executive
positions. "[W]hat
was ...
... it's never
executive positions.
"[W]hat actually
actually happened
happened was
never more
more than 40%
40% women
women in boards...
boards ...
."
Sin Sorenson,
Ph. D.
and Mari
." Interview
Interview with
with Siri
Sorenson, Ph.
D. candidate
candidate and
Mari Teigen,
Teigen, Director, Norwegian Institute for
for
Social
Social Research,
Research, in
in Oslo
Oslo Norway
Norway (March
(March 18,
IS, 2008).
200S). By
By comparison,
comparison, women
women constituted
constituted twelve
twelve percent
percent
of
at that time. Carrie Seim Medill, Closing
of United
United States'
States' corporate
corporate board
board positions
positions at
Closing the
the Corporation
Corporation
Gender
(2003), http://www.norway.org/News/archive/2003/200303gender.htm.
http://www.norway.orglNews/archive/2003/200303gender.htm. Other countries
countries
Gender Gap,
Gap, (2003),
have
to enact
enact aa corporate
corporate quota
quota in June 2006,
2006,
have considered
considered a
a corporate
corporate board
board quota.
quota. Spain
Spain intended
intended to
requiring
requiring that
that neither
neither gender
gender comprise
comprise more
more than
than sixty percent
percent of
of board
board members.
members. Renwick McLean,
McLean, In
In
Spain,
Spain. the
the 40%
40% Solution,
Solution. INTERNATIONAL
INTERNATIONAL HERALD
HERALD TRIBUNE,
TRIBUNE, May
May 5,
5, 2006, available at
at
http://www.iht.com/articles/2006/05/04/news/spain.php.
However, this legislation was
http://www.iht.comlarticles/2006/05/04/news/spain.php.However.this
was delayed
delayed by the
the
2006
2006 elections,
elections, and
and has
has not
not yet
yet been
been passed.
passed. The
The Associated
Associated Press,
Press. Spanish Women
Women Struggle to Rise
Rise in
the
the Corporate
Corporate World
World of
of Modernizing
Modernizing but
but Still
Still Macho
Macho Society,
Society, INTERNATIONAL
INTERNATIONAL HERALD
HERALD TRIBUNE,
TRIBUNE, Dec.
Dec.
30,
2006,
available
at
http://www.iht.com/articles/
30,
2006,
available
at
http://www.iht.comlarticles/
ap/2006/12/3
FEAGENSpains_GlassCeiling.php. As
ap/2006112/3 I/europe/EU
I1europe/EUJEA_GEN_Spains_Glass_Ceiling.php.
As of
of January 2008,
200S, the
the legislation
had
had not
not passed.
passed. ESADE,
ESADE, Second
Second of
of ESADE
ESADE -- Department
Department of
of Labour
Labour and
and Women's
Women's Affairs
Affairs of Madrid
Madrid
Cycle
of
Conferences,
http://www.esade.edu/web/newsevents/news?
Cycle
of
Conferences,
http://www.esade.edulweb/news_events/news?
action-page=/p/CMSView/noticias.do&method=viewExecute&elementold=7508
1.
Denmark
and
action_page=/p/CMSView/noticias.do&method=viewExecute&elementold=750SI.
Denmark
and
France
France also
also approved
approved quota
quota requirements,
requirements, which
which they
they have
have yet
yet to
to enact.
enact. S.
S. Murlidharan,
Murlidharan, Reservations
Reservations
about
about Quotas
Quotas for
for Women
Women on
on Boards,
Boards, (2006),
(2006), http://www.thehindubusinessline.com
http://www.thehindubusinessline.com
/2006/10/12/stories/2006101200091
100.htm. In
12006110112/stories/2006101200091100.htm.
In February
February 2006,
2006, the
the French
French government
government took
took aa similar
similar
step
step to
to impose
impose aa mandatory
mandatory 20
20 percent
percent representation
representation by
by women
women on
on corporate
corporate boards
boards by 2011.
2011. Id.
Id.
However,
a
However, a recent
recent decision
decision by
by the
the Constitutional
Constitutional Court
Court overturned
overturned this
this law.
law. Id.
Id. Although
Although Sweden
Sweden
considered
considered the
the idea,
idea, itit currently
currently has
has no
no corporate
corporate gender
gender quota.
quota. In
In 2002,
2002, the
the now-former
now-former equality
equality
minister
of Sweden,
Sweden, Margareta
Margareta Winberg,
Winberg, threatened
threatened to
to introduce
introduce legislation
legislation requiring
requiring quotas
quotas ififcorporate
corporate
minister of
boards
boards did
did not
not meet
meet aa goal
goal of
of twenty-five
twenty-five percent
percent women
women representation
representation by
by the
the end
end of
of 2004.
2004. The
The Local,
Local,
The
The Great
Great Equality
Equality Debate
Debate -- Whither
Whither Swedish
Swedish Women?,
Women?, (2004),
(2004), http://www.thelocal.se/230/20040618.
http://www.theloca!.se/230/200406IS.
Statistics
2006, reveal
Statisticscompiled
compiled by
by the
the European
European Professional
Professional Women's
Women's Network
Network on
on June
June 12,
12,2006,
reveal an
an overall
overall
stagnation
stagnation of
ofthe
the levels
levels of
ofwomen's
women's representation
representation on
on European
European corporate
corporate boards.
boards.
65
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Berkeley Business Law Journal
Vol. 6.1,2009
6.1, 2009
59
most competent people."
people.,,59
gender equality
The CBQ strives to "secure
"secure greater gender
... strengthen management
management in the business sector and boost
boost
and democracy and ...
the companies'
companies' competitive ability.,,6o
ability. '' 6° Those who support the CBQ argue that
Norway's position in the world market could be severely limited by the underwomen on corporate
corporate boards. 61 In a report prepared
prepared for
representation
representation of women
Children and Equality described the
Norwegian companies,
companies, the Ministry of Children
government's motivation to be the first country
government's
country in the world to enact
enact a genderbased quota law for corporate
corporate boards:
Reaching
Government
Reaching a balanced participation
participation is a question of democracy. The Government
regards the legislation
legislation on women in boards
boards as an important step towards equality
between the sexes, a fairer society and a more even distribution of power, and as an
important factor in
the creation
creation of
of wealth
wealth in society.
society. The legislation will secure
in the
important
women's influence in decision making processes
processes of great importance for the
economy
in the society. It is
is 62important to make use of all the human resources
in
economy in
resources in
of it.
half of
not just
our country, not
just half
it. 62
The CBQ reflects
reflects Norway's
Norway's respect for CEDAW,
CEDA W, the primary international
convention
convention regarding
regarding women's rights. CEDAW's strongest rationale for
for
corporate quotas lies in Article
corporate
Article 11,63 which states that men and women shall
64
have the right to "the
"the same employment
employment opportunities,"
opportunities,,,64
"promotion,,,65
and
"promotion," 65 and
66
"equal
treatment
in
respect
of
work
of
equal
value."
Prior
to
CBQ's
CBQ's adoption,
"equal treatment in respect of work of equal value.,,66
Norway's Sixth Periodic
recognized the dearth of women in corporate
corporate
Periodic Report recognized
67
The more general language
language of CEDA
CEDAW
W Article 3
leadership positions. 67
Company
59. Norwegian Ministry
Ministry of Children
Children and Equality,
Equality, Balanced Gender Representation on Company
Boards, supra note 42. According
According to Aud Slettemoen, a drafter of the CBQ and counsel at the Ministry
of Justice, placing the most qualified people on corporate boards is the primary
primary motivation for the CBQ:
disappeared
[An article] actually said that the result has been
been that the least competent men has disappeared
from the corporate boards and the most competent
competent women
women got in, so it actually did have this
affect concerning the competence
competence of the boards, which is the main objective. So that is why it
is different from the rules concerning workers because that is about their interests being
being
represented. Women on the boards, it's not about having the female interests being
represented
represented in the boards, its about having the most competent people
people so its different.
Interview with Aud
Slettemoen. This opinion
Interview
Aud Sletternoen.
opinion is supported
supported by Siri Sorenson, Ph.D. Candidate
Candidate and Mari
Teigen, Director,
& Mari
Mari Teigen.
Teigen.
Director, Norwegian
Norwegian Institute for Social Research. Interview with Siri Sorenson
Sorenson &
60. Norwegian
Norwegian Ministry
Company
Ministry of Children and Equality, Representation of Both Sexes on Company
Boards, supra note 40.
61. See generally Seim
Seim Medill, supra note 58.
Norwegian Ministry
62. Norwegian
Ministry of Children and Equality, Representation of Both Sexes on Company
Company
Boards, supra note 40.
63. United Nations Convention
Women
Convention on the Elimination of All Forms of Discrimination against Women
I I(1)(b), Dec. 19, 1979, 1249 U.N.T.S.
art. 11(1)(b),
U.N.T.S. 13.
13.
Id.
64. Id.
Id. art. 1I(I)(c).
II(I)(c).
65. Id.
Id. art. II
I I(1)(d).
66. /d.
(1)( d).
67. Sixth
Sixth Periodic Report of
of Norway
Norway on the United Nation's Convention on the Elimination
67.
Elimination of All
Forms
Discrimination
against
Women
(2002),
of
Discrimination
Women
34-35
(2002),
http://daccessdds.un.org/doc/UNDOC/GEN/N02/426/55/PDFN0242655.pd.OpenElement.
Finland
http://daccessdds.un.org/doc/UNDOC/GENIN02/426/55/PDFIN0242655.pdf?OpenElement.
Finland
states that one of the concerns of
of
also acknowledged
acknowledged this concern. In its Fifth Periodic Report, Finland states
its CEDA
CEDAW
Committee with
with respect to Article II has been
its
W Committee
been the "low
"low presence of women in high-ranking
high-ranking
specifically discussed). The Fifth Periodic
(although no quota is specifically
Periodic Report of the
positions in many areas" (although
Government of Finland on the Implementation
Government
Implementation of the Convention on the Elimination of All Forms of
of
66
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Feminizing
Corporate Imperative
Imperative
Feminizing Capital: A Corporate
recommended appropriate
appropriate economic measures
of
recommended
measures to ensure the advancement
advancement of
68
women,68
women, a goal fostered by the CBQ.
Despite these public goals, the CBQ met with substantial resistance
resistance in
Norway's
business
Critics
argue
that
the
state
should
not interfere
community.
Norway's business
argue
with a corporation's determination
determination of which candidates should hold positions
positions
on corporate
boards, 6 9 that the CBQ is disproportionately
corporate boards,69
disproportionately severe
severe in relation to
to
70
constitute an onerous burden on
its goal,
goal,70
and that the quota requirements
requirements constitute
71
corporations
interests. 71
Indeed, in
corporations that actually fails to advance women's interests.
investigation into
January 2006, the European Free Trade Association began an investigation
January
whether
whether the CBQ violated European Union law on the grounds
grounds of positive, or
72
Some corporations
corporations insist that they will maintain
maintain
reverse, discrimination. 72
representation on their boards because
because it is bad business policy to
female representation
exclude
exclude half73of the population from their leadership
leadership roles, but that it should not
be regulated 73
C. Norway's
Spectrum
C.
Norway's Positioning
Positioning in the Public/Private
Public/Private Spectrum
The CBQ reflects the deeper public/private
public/private symbiosis
symbiosis that typifies
Scandinavian countries, which, according to the World Economic Forum, rank
Scandinavian
74
as some of the most competitive economies. 74
Strong institutions and
and
competent
competent macroeconomic
macroeconomic management, coupled
coupled with world-class
world-class education
and a focus on technology and innovation,
innovation, explain this consistently
consistently high
75
ranking.
ran k ·mg. 75
(2004),
Discrimination
against
Women
54
(2004),
http://daccessdds.un.org/doc/UNDOC/GEN/NO4/257/97/PDF/NO425797.pdf?OpenElement.
http://daccessdds.un.org/doc/UNDOC/GENIN04/257/97/PDFIN0425797.pdf?OpenElement.
68. In
In its
its Sixth
Sixth Periodic Report, France discusses its Equality Charter, which promotes as one of its
its
goals "[pJarity
"[p]arity in the political and social spheres and women's
responsibility";
women's access to positions of responsibility";
"[p]rofessional
isanother goal mentioned. France: Sixth Periodic Report on Implementation
"[pJrofessional equality"
equality" is
Implementation of
the Convention on the Elimination of all Fonns
Forms of Discrimination against Women 14 (2006),
http://daccessdds.un.org/doc/UNDOC/GEN/NO6/304/02/PDF/NO630402.pdf?OpenElement.
http://daccessdds.un.org/doc/UNDOC/GENIN06/304/02/PDFIN0630
402.pdf?OpenElement.
69.
Interview with
Dag Ekelberg,
Director, Civita,
Norway, Mar.
Mar. 16,
16, 2008.
69. Interview
with Dag
Ekelberg, Director,
Civita, Oslo,
Oslo, Norway,
2008. See also Seim
Seim
Medill,
Medill, supra
supra note 58.
Susie Mesure,
Mesure, Norway
Shatters the
the Glass
Glass Ceiling
Ceiling - But Will it Promote Women's Cause?, THE
70. Susie
THE
Norway Shatters
70.
INDEPENDENT,
Mar.
8,
2006,
available
at
INDEPENDENT,
http://news.independent.co.uk/business/analysis-andjfeatures/article349927.ece.
http://news. independent .co.uklbus inesslanal ysis_andJeatures/artic le34992 7.ece.
Directors, BBC
BBC NEWS,
71. Oslo Push for Women Directors,
NEWS, June 13, 2003, available at
http://news.bbc.co.uk/2/hi/business/2988992.stm. However, according to Aud Slettemoen,
http://news.bbc.co.ukl2/hi/business/2988992.stm.
Slettemoen, vocal
vocal
opposition to the CBQ has dissipated:
[B]ut there has been quite aa clear development
[BJut
development where the criticism has decreased more and
more, and more and more people are positive because, I guess because the experience is aa
good one, they see that it works and the resources are good for the companies and they get
get
good boards.
Interview with Aud
Aud Slettemoen,
Senior Counsel, Ministry of Justice, Oslo, Norway (March 20, 2008).
Interview
Slettemoen, Senior
Female Quota Can be Halted, AFTENPOSTEN,
available at
72. Female
AFfENPOSTEN, Jan. 4, 2006, available
http://www.aftenposten.no/english/Ilocal/article
.ece.
http://www.afienposten.no/englishllocal/articlel1190571
190571.ece.
73. Seim Medill, supra note 58.
74. WORLD
WORLD ECONOMIC
COMPETITIVENESS REPORT 2006-2007,
2006-2007, Sept.
Sept. 26,
26,
74.
ECONOMIC FORUM,
FORUM, THE GLOBAL COMPETITIVENESS
2006, available
availableat http://www.gcr.weforum.org.
http://www.gcr.weforum.org.
Video Interview with
with Augusto
Augusto Lopez-Claros,
Lopez-Claros, Chief Economist and Director, Global
75. See Video
67
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Berkeley
Business Law Journal
Vol. 6.1,
6.1, 2009
Scandinavia also embraces a particularly
particularly social form of democracy. Due to
Scandinavia
its economic wealth and high levels of corporate and individual taxation,76
taxation, 76 its
citizens
citizens receive substantial
substantial state support for every aspect of life such as health,
education,
education, unemployment, retirement, and parental responsibilities. 77 The
combination
Scandinavia's competitive
competitive economies and socially conscious
conscious
combination of Scandinavia's
programs
interrelationship between government,
programs reflect the region's distinctive
distinctive interrelationship
market, and individuals.
The CBQ applies public policy to one of the most private of private sector
sector
contexts, the corporate
board.
This
new
formulation
of
the
relationship
between
relationship between
corporate
the public and the private evokes feminist debates
debates concerning the nature of this
dichotomy.
II.
REVISITING THE PUBLIC/PRIVATE
DICHOTOMY
REVISITING
PUBLIC/PRIVATE DICHOTOMY
Until recently, public intervention in the market was anathema. Then,
suddenly, during the financial crisis that began in 2007, governments
throughout the world began taking direct stakes in some of the world's largest
banks. Nationalization
Nationalization is on the lips of even relatively conservative
conservative economists.
opening for new thinking about the relationship between
between
This shift creates an opening
the public and private sectors. Norway's
Norway's CBQ blurs the public/private
temporal moment.
distinction and highlights the transformative
transformative potential of this temporal
In the early 1960's, women's
women's role in family life became
became a subject
subject for
78 The "private"
"private" family context exposed women to
examination and critique. 78
in
forced labor, violence,
violence, and other ills. Many social justice projects developed in
Competitiveness Network, http://www.weforum.org/en/fp/gcr2006-07interviews/index.htm.
http://www.weforum.orgJenlfp/gcr2006-07interviews/index.htm.
76. As
noted in Internalizing Gender, the establishment
As II noted
establishment of a
a social system depends largely on
76.
development, and
and may
have broad
broad impacts
development,
may have
impacts on the construction of gender itself.
itself. See generally
Rosenblum, Internalizing Gender, supra note II.
11.
77. See,
e.g., Stephen D. Sugarman,
Sugarman, A Comparative Law Look at Pain and Suffering Awards, 55
55
77.
See. e.g.,
DEPAUL L. REV.
REV. 399,
(2006) (remarking
DEPAUL
399, 411,
411, n.15
n.15 (2006)
(remarking that Norway
Norway and other Scandinavian
Scandinavian countries are
known
their social welfare
welfare programs and systems). See also ledediah
Jedediah Purdy, The New Biopolitics:
known for
for their
Autonomy, Demography
2006 BYU
BYU L. REV.
REV. 889, 947 (2006)
(2006) (describing examples of
of
Autonomy.
Demography and Nationhood, 2006
social welfare
in Norway
Norway such
extensive maternity
and paternity
social
welfare programs
programs in
such as
as extensive
maternity and
paternity leave). "The Nordic
countries, Denmark, Finland, Iceland, Norway, and Sweden,
Sweden, are the most gender-equal in the world. The
countries,
Nordic countries are also the most advanced social welfare states in the world, but Nordic advances in
social
welfare and
and gender
gender equality
equality are
under threat."
threat." Maria
Grahn-Farley, A Ghost is Haunting Europe,
social welfare
are under
Maria Grahn-Farley,
24 MICH.
J. INT'L L. 169,
(2002) (reviewing KEVA
MICH. 1.
169, 170 (2002)
KEVA NOUSIAINEN
NOUSIAINEN ET AL., RESPONSIBLE SELVES:
WOMEN
INTHE NORDIC LEGAL CULTURES
CULTURES (1990)).
WOMEN IN
(1990».
78. Feminism's
Feminism's Second Wave began in the post-World
post-World War
War II era and lasted through the 1980s.
I 980s.
Betty Friedan's
book, THE
THE FEMININE
FEMININE MYSTIQUE
fast became
symbol of
early second
second wave.
MYSTIQUE (1963),
(I 963), fast
became aa symbol
of the
the early
Betty
Friedan's book,
Friedan, aa housewife
"former labor
union journalist"
labor union
journalist" conducted interviews with women who had
Friedan,
housewife and
and "former
attended her
HOW THE MODERN
THE WORLD SPLIT OPEN: How
MODERN
attended
her alma
alma mater, Smith College. RUTH ROSEN, THE
WOMEN'S
investigation exposed the misery of educated
Her investigation
WOMEN'S MOVEMENT
MOVEMENT CHANGED
CHANGED AMERICA
AMERICA 44 (2000).
(2000). Her
housewives
that was
their exclusion
exclusion from
from work
work outside
outside the
individual fulfillment
the
to their
the home
home and
and individual
fulfillment in the
housewives that
was due
due to
"public"
domain. Id.
Id. It
It must
be noted
that Friedan,
like years
of media
media coverage,
scholarship, and
and the
"public" domain.
must be
noted that
Friedan, like
years of
coverage, scholarship,
women's liberation
movement itself,
itself, ignored
that women
women of
of color and lower
lower class women had
women's
liberation movement
ignored the
the fact
fact that
always
outside of
the home
of necessity).
foundational critique
critique effectively
always worked
worked outside
of the
home (out
(out of
necessity). Friedan's
Friedan's foundational
effectively
targeted
of housework
housework and
and childrearing,
childrearing, as
as well
well as
as of
of the
the general
of opportunity
opportunity for
general lack
lack of
for
targeted the
the devaluation
devaluation of
success outside
of traditionally
female occupations.
traditionally female
success
outside of
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Feminizing
79
marital rape.
criminalize marital
to criminalize
the endeavor
reaction to this situation, including
including the
endeavor to
rape. 79
"private" spaces as beyond
Despite these efforts, the law viewed
viewed "private"
beyond its protection,
privately-suffered and sexist oppression
forcing women to frame their privately-suffered
oppression as
"public" regulation. The feminist slogan "the personal
political"
matters for "public"
personal is political"
reflected the importance of exposing
the
private
exposing80
private world to the scrutiny
scrutiny
concerns. 80
public concerns.
previously reserved for
for public
Following
public/private distinction arguments,
Following the early Second
Second Wave public/private
legal scholars elucidated crucial components
components of the dichotomy between the
81
Beyond
public and private spheres. 81
Beyond tropes of good and bad, the public/private
public/private
dichotomy merits deconstruction,
dichotomy
deconstruction, both in the market and in the family. The
public/private dichotomy
public/private
dichotomy applies both to the market and to the family. Frances
Frances
Olsen's landmark
landmark work articulates
articulates a parallel between
between the two public/private
public/private
dichotomies most relevant to feminist analyses: the state/civil society division
82 The former "distinguishes
market/family division. 82
'the state'
and the market/family
"distinguishes 'the
state' from the
groups," 83
and nongovernmental
society-public, including individuals
individuals and
nongovernmental groups,,,83
rest of society-public,
while the latter separates the public world of the market, work, and commerce
commerce
84 The use of "public/private"
from the private world of the family and home. 84
"public/private"
suggests the dichotomy between
between state and non-state actors, as well was the
market and the family. The CBQ crosses each
each dichotomy. For state/civil
society, it applies
publicly-owned corporations,
applies both to publicly-owned
corporations, as state actors, and to
79. Before Diana
"pioneering book"
book" THE POLITICS
(1984), the
Diana Russell published her "pioneering
POLITICS OF RAPE (1984),
"marital rape" was virtually unknown to Americans. Id.
"[T]he law, as well as
Id. at 183.
183. "[T)he
as
concept of "marital
Id. At a 1979 meeting of the National
conventional wisdom"
wisdom" held that a man could not rape his wife. Id.
Senate
Jewish Women, Bob Wilson, the chair of the Judiciary Committee of the California
California Senate
Council of Jewish
"joked," "If you can't
Id. Rosen notes that "by
'naming' such
can't rape your
your wife, then who can you rape?"
rape?" Id.
"by 'naming'
such
turn a 'custom'
debate that could tum
'custom' into a
hidden crimes, (second
(second wave)
wave) feminists generated the kind of debate
crime." Id.
Id. at 184.
crime."
80. Much debate surrounds the origin of this widely-used
widely-used phrase. Many commentators
commentators refer to
to
Political" that appeared
Carol Hanisch's
Hanisch's essay titled "The Personal
Personal is Political"
appeared in a radical feminist document
document
undetermined.
called The Redstocking Manifesto, published in 1969,
1969, but the origin of the phrase remains
remains undetennined.
"The Personal is Political
Political,. .." Attacking
Women, Carnival of Feminists 17.
17, and What the
Carol Hanisch, "The
Attacking Women.
Heck, WOMEN'S
WOMEN'S SPACE,
Heck,
SPACE, Jun. 22,
22, 2006, http://womensspace.wordpress.com/2006/06/22/carol-hanischhttp://womensspace.wordpress.coml2006/06/22/carol-hanischthe-personal-is-political-attacking-women-camival-of-feminists- 17-and-what-the-heck.
the-personal-is-political-attacking-women-carnival-of-feminists-17-and-what-the-heck.
81.
accompanying text.
81. See supra note 71 and accompanying
82. Frances
in
Frances E. Olsen,
Olsen, International Law: Feminist Critiques of the Public/Private Distinction, in
RECONCEIVING
WOMEN AND INTERNATIONAL
1993).
RECONCEIVING REALITY:
REALITY: WOMEN
INTERNATIONAL LAW 157 (Dorinda
(Dorinda G. Dallmeyer ed., 1993).
83. Id.
Id. at 157. Olsen draws a parallel
parallel between the state/civil
state/civil society dichotomy domestically
domestically and
Id. at 157-58.
157-58. She argues that the state/civil
that between international/national
international/national law on a global scale. Id.
society division is gendered on two levels: attacks on this dichotomy
dichotomy are attacks
attacks on the status quo (and
for women's position in society to improve, a change in the status quo is required) and this dichotomy
can be seen as a male/female
male/female division (men dominate the state and women
women are relegated
relegated to civil society).
Id. at 158.
Id.
associated with the
84. Id.
Id. This distinction is clearly gendered,
gendered, because
because women have long been associated
private sphere of the home, both ideologically
ideologically and practically, as they do most of the work which takes
takes
place in the home. Id. at 159. The distinction is also gendered
gendered internationally. Domestic
Domestic abuse and
scrutiny" on two levels: international law
violence toward women are "immunized
"immunized from international
international scrutiny"
governs the dealings
dealings between nation states and international law can be used to prevent abuse of
of
individuals only when committed by a nation
nation state. Id. Since neither women nor their domestic abusers
Id.
are nation states, international
international human rights law offers insufficient protection
protection to women.
women. /d.
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publicly-traded
corporations, as non-state
publicly-traded corporations,
non-state actors. The CBQ also applies
applies to the
market and families, transferring the benefits
benefits of each to the other, as nonmarket
market actors become integrated into the market.
The public/private dichotomy
dichotomy
dichotomy requires more clarity. Olsen's dichotomy
formulation, as depicted below, situates the market on both sides, (1)
(!)as in
opposition
state/non-state dichotomy and (2)
(2) as part of the
opposition to the public in the state/non-state
public in the market/family
market/family dichotomy.
PUBLIC
[-
PRIVATE
PRIVATE
]
State
[
I
State
I
I
I
I
I
I
I
"-
•
Market
-
/'"
I
"
[
Non-stae
I
Non-state
I
I
./'
I
I
~
I
Family
Family
I
In this graphic, the market and the family figure as elements of the non-state,
hence the line linking non-state to both market and family. The chart's arrows
arrows
depict the power
power held by the state
state over the non-state,
non-state, market, and family actors,
and power of the market over the family. While the market views itself as
external
construction of the state, a point
external from the state, it actually
actually exists as a construction
85
85
"Nothing is really private,"
addressing
Ruth Gavison
Gavison has argued. "Nothing
private," she asserts, addressing
three formulations:
"private as self-regarding;
formulations: "private
self-regarding; private institutions
institutions based on
norms of contract and property (the more voluntary parts of which are called
86
'private law');
law'); and
and private
private as
as free."
Of these
these all are public--even
public-even contract
'private
free."s6 Of
contract and
and
85. Ruth
Ruth Gavison
Gavison focuses
focuses on
on the
challenge to
to the
the distinction and the
the many "senses"
85.
the external
external challenge
"senses" of the
public/private distinction
distinction in Feminism
and the Public/Private
Distinction, 45 STAN. L. REV. 1,
(1992).
public/private
Feminism and
Public/Private Distinction,
1,66 (1992).
In particular,
particular, she discusses
discusses (I)
(1)the private,
private, unobservable and the public, observable; (2)
(2) the private
In
freedom to
act and the public state action; and (3)
(3) individual versus group activity.ld.
activity. Id. She asserts that itit
freedom
to act
is helpful
to use
use these
for discussion
discussion purposes
purposes but
but that
that often
often they
they cluster
cluster together
define a
is
helpful to
these distinctions
distinctions for
together to
to define
a
more complex
public versus
versus private.
private. Id.
Id. at
at 7.
her analysis
analysis through
through a
7. Gavison
Gavison continues
continues her
a
more
complex meaning
meaning for
for public
normative/descriptive approach
approach and
and seeks
to determine
determine the
the extent
of distinctiveness
distinctiveness or
or sameness
sameness in
in the
the
extent of
normative/descriptive
seeks to
terms. Id. at 710.
terms.ld.
7-10.
Id.
86. She asserts that false beliefs result when society invokes these three privacy formulations. Id.
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property rights, including
including those within the family, exist under state
88 State laws
87
regulation,87
decisions. 88
regulation, so that the state influences "personal"
"personal" decisions.
corporate formation and market investment
govern corporate
investment structure,
structure, hence the line
exert power
power over
over
linking state and market. Conversely,
Conversely, the market is starting to exert
developing countries.
the state in developing
Olsen articulates the parallels between the classic arguments against
intervention in the private
private sphere by the public sphere, which are:
1) Intervention
Intervention would be wrong because the intervening
1)
intervening agency
agency would be
be
exceeding
exceeding its proper authority;
2)
2) Intervention
Intervention would be futile, with no lasting effect; and/or
and/or
3) Intervention
Intervention would be counterproductive,
counterproductive, creating a dramatic
3)
dramatic or
or
89
89
.
I
result.
negative
unexpected
unexpecte d negative resu t.
Olsen divides the available
available responses to these anti-interventionist
antI-mterventionist arguments
arguments
"moderate" and "radicai"
"radical" categories. The CBQ is an example of a radical
into "moderate"
"soft" response would be
response, the type that Olsen endorses. 99o0 A moderate,
moderate, "soft"
state intervention to protect weak citizens from isolated incidents of domestic
domestic
violence. A moderate,
moderate, "hard"
"hard" response
response would be continuous,
continuous, systematic
systematic state
intervention
could
intervention to protect victims of naturally oppressive
oppressive families. 9911 One could
extend this moderate, "hard"
"hard" remedy to the international
international level and argue that
the international
international human rights regime should act to prevent
prevent isolated or common
common
violations
violations of women's rights, even those committed
committed by non-state actors. 92 Civil
Gavison bases her definition of self-regarding on John Stuart Mills'
Liberty that there is
Mills' theory from On Liberty
self- and other-regarding
other-regarding activities. Id.
a distinction between selfId.
87. See id.
id. at 16.
88. Id.
Id. at 14,
88.
14, 19, 43. Feminists suggest collapsing the dichotomy between personal and political
because the overlap between the two is often great. Gavison also presents several claims that the
distinction results in too much of a difference between the public and private spheres. Id.
fd. at 21-29. Some
Some
of these criticisms include: the privatization of women leads to their marginalization;
marginalization; that the differences
between
of
between the public and private spheres have been exaggerated, resulting in the further oppression of
women;
women; the myth that decisions made in the private sphere do not affect the public sphere;
sphere; that the value
of the public and private spheres are often assessed differently; and the myth that the division into public
and private is inevitable. Id.
Id. Gavison directly addresses the role of language in the distinction, her basic
argument
"the distinction 'keeps
'keeps the
argument being that the public/private dichotomy is not gender-neutral: "the
private beyond public redress and depoliticizes women's
it."'
women's subjection within it.
", Id.
Id. at 29-30. Here, the
public is both a "source
"source of power"
power" as well as a "fundamental
"fundamental structuring concept that affects beliefs and
expectations."
public/private language leads to undesirable
Id. at 30. This critique complains that using pUblic/private
expectations." Id.
consequences
consequences because those who use this language are misstating the problems and devise solutions
which "systematically
women." Id. Gavison develops this hypothesis with regard to
"systematically disadvantage women."
abortion, domestic violence, and pornography. See id.
id. at 30-41.
161.
supra note 82, at 161.
89. Olsen, supra
90. fd.
Id. at 161-62.
161-62.
91. Id.
91.
Id. Olsen also points out that Karen Engle's articulation of the argument that the public/private
dichotomy should be abolished because it oppresses
oppresses women
women is an example of the hard version of aa
moderate
critique. Id. at 163-65.
163-65.
moderate critique.ld.
92. Id.
92.
Id. at 162.
162. The radical response to that same argument
argument is that because state policies define the
"[t]he ground rules set up by the
family and sometimes empower certain family members
members over others, "[tJhe
state inevitably affect the power between individuals."
individuals." /d.
Id. at 162-63.
162-63. Olsen then looks at whether the
international community
community sets ground rules and has an influence on the relationships between the state
and
individuals (or
and individuals
(or between
between individuals)
individuals) to
to the
the extent that "non-intervention"
"non-intervention" is aa "meaningless
"meaningless
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and political human rights are viewed as residing in the public sphere,
leading
sphere, leading
to a failure to protect women in their familial relationships.93
relationships. 93 The state's role is
"gendered because
in all
societies men
"gendered
because in
all societies
men dominate
dominate the
the public sphere of politics
and government and women
women are associated
associated with the private sphere of home and
and
94
family."
characterization
of
the
risks
of
family.,,94
Other theorists
resist
this
characterization
and
warn
of
95
..
h
.
95
private.
the
demonizing
demonIzmg t e prIvate.
The CBQ crosses
crosses so many of the lines of this re-envisioned relationship
relationship
between
between the public and private sectors. The resistance
resistance arising
arising from the state
mandate
widely-used tropes
gender proportion on corporate
corporate boards reflects widely-used
mandate of gender
against public intervention into the private sphere. CBQ critics contend
contend that the
state is exceeding
exceeding its authority
authority and that the private sector
sector should be left to its
at
concept," although she primarily summarizes
summarizes her fellow authors in the collection on this topic. Id.
Id. at
"mushy-liberal approach and a
163. Ultimately, Olsen argues that there is a distinction between a "mushy-liberal
a
163. While the former views the
realistic-radical approach to social change and gender relations."
relations." Id. at 163.
"oversight to be corrected,"
corrected," the
exclusion of women as mere neglect and the lack of women's
women's rights an "oversight
latter recognizes that there is aa "power
"power imbalance between men
men and women
women and believe that changing
this power imbalance involves an important political struggle."
struggle." Id.
93. A
al., Feminist
A leading feminist analysis of international law is Hilary Charlesworth
Charlesworth et a!.,
Feminist
Approaches to International Law, 85 AM. J.
J. lNT'L
INT'L L. 613 (1991).
(1991). See also Charlesworth,
Charlesworth, Feminist
Feminist
silence
Methods, supra note 22 (arguing both generally that the public/private distinction acts to silence
international
international law from fully addressing the repression and abuse of women, an issue which is generally
treated as aa private matter). Celina Romany, Women as Aliens: A Feminist Critique of the Public/Private
Public/Private
Distinction in International Human Rights Law, 6 HARV.
Romany
Distinction
HARV. HUM.
HUM. RTS. J.
J. 87(1993). Id.
Id. at 97. Romany
addresses these issues by looking at the state action requirement and how a feminist approach through
the state action requirement
requirement can improve
"State responsibility
responsibility. .
women's human rights. "State
improve the protection of women's
. ..is
is central to an expansive interpretation of human rights law which seeks to encompass women's
women's
rights. Id.
Id. at 106. Romany argues that women
women are aliens within their own states and within the
international
"[sitate responsibility norms for
international law community.
community. Id.
Id. Thus, Romany
Romany goes on to argue that, "[s)tate
the
law."
the protection
protection of aliens provide fertile ground for expanding state responsibility in human rights law."
Id.
"it will focus on
Id. Romany argues that a
a feminist analysis to human rights law is important because "it
on
building aa corpus of international customary law that recognizes violence against women as a violation
of traditional human rights as well as aa violation of state responsibility."
responsibility." Id.
Id. at 108. See also Celina
Romany, State Responsibility Goes Private:
in
Private: A Feminist Critique of the Public/Private Distinction in
International Human
INTERNATIONAL
Human Rights Law, in HUMAN RIGHTS OF WOMEN:
WOMEN: NATIONAL
NATIONAL AND INTERNATIONAL
PERSPECTIVES 85,
85, 99 (Rebecca
(Rebecca J.
1994) (distinguishing between public protection of gender
PERSPECTIVES
J. Cook ed.,
ed., 1994)
gender
equality and the enforcement of such equality in the private home. Focusing solely on the public realm
realm
[e.g., employment
employment equality, public violence, and equal opportunities)
opportunities] denounces domestic inequality and
and
relegates it to a
a category of harm that is within family, but not criminal, law). Some argue that domestic
violence should constitute aa human rights violation, moving human rights beyond the requirement
requirement for
for
direct state involvement.
involvement. Charlesworth,
Charlesworth, Feminist Methods, supra note 22, at 382-83.
direct
Id. at 383.
94. Id.
95. Karen Engle warns that an excessive focus on the public/private distinction overlooks the extent
to which women's lives fall within the public sphere, and erroneously assumes that the private sphere
somehow necessarily harms women. The automatic demonization
demonization of the private sphere
sphere risks
undermining aa source of liberation for women in sexual and reproductive agency. See generally Karen
Engle, After the Collapse of the Public/Private Distinction: Strategizing Women's Rights, in
Engle,
RECONCEIVING REALITY:
WOMEN AND INTERNATIONAL LAW
1993).
RECONCEIVING
REALITY: WOMEN
LAW 146 (Dorinda
(Dorinda G. Dallmeyer ed., 1993).
Engle argues that while feminist scholars criticize international law for excluding the private sphere
(when they
(when
they really
really mean that women
women are excluded), they are often the very people who "attach
"attach the label
'private' to
activity," that
that they
they perceive
to be
be omitted.
Id. While
While women
do not
not necessarily
necessarily
women do
'private'
to women's
women's activity,"
perceive to
omitted. Id.
live their
lives entirely
in the
sphere, the
the private sphere
sphere itself
itself can be seen to offer women
live
their lives
entirely in
the private
private sphere,
women
protection that the public cannot. Id. at 148. Engle argues that the idea of a private sphere can be
liberating in the
the areas of abortion,
abortion, battery, prostitution, or "alternative"
"alternative" sexual
lifestyles. Id. at 148-49.
sexuallifestyles.ld.
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96
own devices and self-regulate. 96
Public institutions should only regulate state
actors and other
other public entities, such as state-owned
state-owned corporations. The market
should
supports the private sector, maintaining
maintaining that corporations themselves should
determine who sits on corporate
boards
and
that
such
decisions
are
not
the
corporate
decisions
the
97
97
Certainly,
the
United
States
Certainly,
critics
within
States
proper subject of public regulation.
98
argument. 98
similar argument.
would make aa similar
Despite this call for strict separation, public institutions directly impact
private institutions. The law constructs
constructs the corporation and the family, as
as
enforcement mechanism
shown in the chart. As the CBQ's enforcement
mechanism emphasizes, the
corporation is an artificial person created
created by the force of law. Should a
corporation
corporation
fail
corporation
to comply with the CBQ mandate, it will be dissolved by the
law. The relationship between
between the public and the private is hotly contested in
feminist circles. Despite this conflict,
conflict, the dichotomy provides fertile terrain for
envisioning and applying future remedies to group inequality.
inequality.
III. GENDER
MEANS TO A
A PUBLIC
GENDER EQUALITY-PRIVATE
EQUALITY-PRIVATE MEANS
PUBLIC END
END
This Part explores how the public influences the private,
private, perhaps the more
demonstrates the several
obvious impact
impact of the CBQ. First, it demonstrates
several ways that the
exclusion of "women's
"women's work"
exclusion
work" from the public market
market harms women. Second, it
explains how requiring women's inclusion on corporate boards
boards not only creates
opportunities for individual women, but provides
opportunities
provides broader societal
societal and
leadership
economic effects beyond the symbolic role played by those leadership
positions. Finally, this Part articulates how the CBQ reflects
reflects the goals of gender
gender
equality present in international
international women's
women's rights law.
Women's
Women's corporate leadership
leadership serves the role as the public norm that finds
life in private
gender
private implementation. However, clarification of the meaning
meaning of gender
99
balance is necessary.
necessary.99
A simplified version
version centers
centers on the "enjoyment
"enjoyment of equal
choices
opportunities."'' 00 This definition
choices and opportunities."loo
definition moves beyond the Second
Second Wave
Wave
7, 2009).
96. Interview with Dag Ekelberg, Director, Civita, Oslo, Norway
Norway (Mar. 7,
Id.
rules.ld.
97. Economists may argue that aa regulated market simply inspires evasion of the rules.
98.
thinkers such
such as Lani Guinier question
question quotas
quotas for an emphasis on descriptive
descriptive
98. "Critical
"Critical thinkers
representation; liberal thinkers such as Bruce Ackerman
Ackerman attack quotas as undermining the neutrality of
of
the liberal state."
11,at 1127 n.28. "Critical
"Critical (and
race)
state." Rosenblum,
Rosenblum, Parity/Disparity,
Parity/Disparity, supra
supra note II,
(and critical race)
theorists question quotas because they encourage tokenism and preserve essentialist understandings of
of
theorists
identity. Whereas
Whereas liberals view quotas as violating neutrality, critical theorists believe neutrality serves
quo." Id.
Id. at 1135.
1135.
to maintain
maintain the inequality of the status quo."
"'Gender equity', 'gender
'gender equality', 'sexual equality', or gender egalitarianism is the belief in
99. '''Gender
the equality of the genders or the sexes. Many followers of this philosophy would like to see this term
and
masculinism, when used to describe a
a belief in basic equal rights and
come to replace feminism or masculinism,
opportunities for members of both sexes within legal, social, or corporate establishments. They strive for
ultimate fairness,
fairness, and
and seek
cooperative solutions
solutions so as to make things better for both males, females, and
and
ultimate
seek cooperative
everything in between. They are opposed both to misogyny and misandry, pointing to aa gender
transformative perspective and the need for a rejection of all forms of gender oppression
oppression and
and
stereotypes." Gender Equality, http://en.wikipedia.orglwiki/Gender_equality
http://en.wikipedia.org/wiki/Gender-equality (last visited Nov. 6, 2009).
stereotypes."
CHINKIN, GENDER
GENDER MAINSTREAMING
MAINSTREAMING IN
IN LEGAL
LEGAL AND
AND CONSTITUTIONAL
AFFAIRS: A
100. CHRISTINE
CHRISTINE CHINKIN,
CONSTITUTIONAL AFFAIRS:
A
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Berkeley Business
Business Law
Law Journal
Journal
Berkeley
2009
Vol.
Vol. 6.1,
6.1,2009
fixation on
on women's
women's empowerment
empowerment to
to include
include aa broader
broader vision
vision of
of gender
gender
fixation
0
in
equality
101
The
CBQ
aims
to
enforce
greater
levels
of
gender
equality
in the
the
balance.
of
gender
levels
balance. ' The CBQ aims to enforce greater
fields of
of family
family life,
life, private
private work,
work, public
public work,
work, and
and politics
politics to enforce
enforce gender
gender
fields
balance in economic
economic stewardship.
stewardship.
balance
A. Market-Centered
Market-Centered Efforts May
May Make
Make Women's Economic
Economic Contributions
Contributions
A.
Transparent
More Transparent
Inclusion of women
women in market-related
market-related and other developmental
developmental activities
activItIes
Inclusion
the effort
effort to increase
increase gender
gender equality. The CBQ reflects
reflects aa radical
radical
furthers the
by
feminist
efforts
on
extensive
departure in this regard,
regard, but
but itit builds
builds on extensive efforts
feminist
departure
economists to
to quantify
quantify and
and promote
promote women's
women's work
work in
in the
the private
private and
and
economists
"uncounted"
CBQ's effort
effort to
to crack
crack the
the glass
glass ceiling
ceiling connects
connects to
to
"uncounted" economy.
economy. The
The CBQ's
work
women at the bottom of
of class
class
work that valorizes
valorizes the labor of the millions of women
hierarchies.
1.
1.
Work"
Effects
Effects of the Informal Nature
Nature of
of "Women's
"Women's Work"
Women's work often consists of labor in the informal economy and
Women's
°2
Many
estimation.'102
Many
therefore lacks a clear monetary value or an effective
effective estimation.
therefore
are
where
wages
economy
"formal"
to
the
women still do not contribute
contribute
"formal" economy where
informal economy
exchanged for labor. 103 Women's work in the informal
economy falls into four
exchanged
categories: 1) subsistence work
work involving production
production related
related directly
directly to a
categories:
05
10 4 2)
household work; 1105
3)
informal work
family's survival
survival needs; 104
3) informal
2) unpaid household
(2001).
REFERENCE
MANUAL FOR GOVERNMENTS
GOVERNMENTS AND
AND OTHER STAKEHOLDERS
STAKEHOLDERS 7 (2001).
REFERENCE MANUAL
"sex."
101.
"gender" possesses aa utility beyond serving as aa substitute for the word "sex."
101. The word "gender"
and
social identity as male or female, but also incorporates masculinity and
Gender not only refers to one's social
Transgendered
"Trapped" in Sing-Sing: Transgendered
femininity as personal traits. See generally Darren Rosenblum, "Trapped"
L. 499 (2000).
(2000). Such aa broad definition
J. GENDER & L.
Prisoners Caught in the Gender Binarism, 6 MICH. 1.
and other international law
of CEDA
CEDAW
of gender should be the subject of aa deeper evaluation of
Wand
law
What's Wrong
CEDA W
entitled Unsex CEDA
W: What's
institutions. This critique is the subject of aa forthcoming article, entitled
Women's Rights.
with Women's
and housecleaning,
housecleaning, which
such as street vending and
of activities, such
consists of
102. The informal economy consists
and unregulated
unregulated
precarious, and
evade efforts of
of economic data collection due to its underground, unstable, precarious,
136 (2003).
(2003).
GLOBALIZATION 136
AND GLOBALIZATION
DEVELOPMENT AND
LOURDES BENERIA,
BENERIA, GENDER, DEVELOPMENT
nature. See LOURDES
and
managers and
as household
household managers
Id. at
at 136-38.
136-38. Beneria distinguishes between women's roles as
103. Id.
as regular
regular
work, as well as
subsistence and informal work,
She combines subsistence
women as producers. She
consumers and women
estimation
which therefore provides aa different estimation
producers," which
"women as producers,"
the expression "women
labor, when using the
of the overall
work. Id.
overall value of women's work.ld.
that poor
poor
statistics is
is that
economic statistics
from national
national economic
labor from
subsistence labor
of the exclusion of subsistence
104. One effect of
IN ECONOMIC
ECONOMIC
BOSERUP, WOMEN'S ROLE IN
135 (citing
(citing ESTER BOSERUP,
Id. at 135
be poorer. Id.
countries appear to be
163 (1970».
(1970)).
DEVELOPMENT 163
DEVELOPMENT
family functioning,
functioning,
maintaining family
includes maintaining
137-38. Domestic work includes
102, at 137-38.
Beneria, supra
supra note 102,
105. Beneria,
105.
value of
of
note that
that the
the value
important to
to note
Id. It isis important
and childcare. Id.
food and
cleaning to
to preparing
preparing food
and cleaning
from washing
washing and
from
an important
important
Non-market household production is an
to GOP.
GDP. Non-market
unpaid housework is substantial in relation to
unpaid
What IsIs
Chadeau, What
also Ann
Ann Chadeau,
Id. See also
and welfare.
welfare. Id.
income, consumption, and
of household income,
component
component of
at
available at
86-103 (1992),
(1992), available
STUD. 86,
86, 86-103
18 ECON.
ECON. STUD.
Worth?, 18
Non-Market Production Worth?,
Household's Non-Market
Household's
http://www.oecd.org/dataoecd/31/44/34252981 .pdf.
http://www.oecd.orgldataoecdl31144/34252981.pdf.
74
HeinOnline -- 6 Berkeley Bus. L.J. 74 2009
Feminizing
Feminizing Capital: A Corporate Imperative
. the market;
k 107 These
serving
106 and 4) volunteer work.l°7
servmg
mark et; 106
wor.
These four areas
areas expose the
"women's work"
economic calculation
calculation
reality that much of "women's
work" escapes both public economic
108
differences also
and familial financial decision making.'
making. 0 8 Global cultural differences
09
affect the relationship
relationship between
between women and men and their respective
respective work. 109
Traditional theory of supply and demand holds that where the supply of a
Traditional
service
service has no price, consumption
consumption increases
increases without regard to efficiency,
consuming
effort than necessary for the same output.
output."I 10
10 In this
consuming greater time and effort
sense it functions as a distorting subsidy. Women often perform
perform women's work
for family members or people of close personal relation
relation and, as a result, much
is informalIy
informally compensated
compensated or not compensated
all."'
compensated at all.
III Because such work is
not directly remunerated
"nonremunerated and difficult to value, economists
economists label it as "nonmarket" labor.ll2
labor." 2 Since economists ignore non-market women's work, it is not
market"
factored
calculations.' 1133 This is particularly
particularly true in
factored into gross domestic
domestic product
product calculations.
societies
societies where
where a woman's
woman's only work falls
falIs in one of the four categories
categories
described
cost-benefit
described above. Deprived
Deprived of this economic measure, familial cost-benefit
calculations
calculations become nearly impossible, leaving household choices
choices at best
uninformed
quantification of the
uninformed and at worst counterproductive.
counterproductive. Without any quantification
value of women's work, the woman
woman and her family cannot analyze the best use
use
of often-limited
resources.
As
a
result,
intuitive,
rather
than
rational,
decisionoften-limited
intuitive,
rational, decision-
102, at 136.
106. Beneria, supra note 102,
107. Id.
Id. at 138-40.
138-40. Volunteer
Volunteer work presents different issues because the beneficiary is not the
family of the worker. One question that arises is whether to count collective food kitchens (common in
some Sikh communities, for instance) as volunteer work or housework. Id.
Id.
108. It is also important to note that proportions of these categories may change considerably ifif
108.
characteristics of investment trade sectors change, especially in countries that depend on foreign
investment
women's roles because, depending on which
investment to aa greater
greater extent. This may
may further change women's
trade sectors will become emphasized. The employment
employment structure may also change, which would also
affect women's opportunities and exact roles. In aa wider perspective, such changes may have an impact
impact
on human development, transformation of traditional family models, and birth and death rates as well.
CULTURE AND
AND
See generally Aasha Kapur Mehta, Globalization and Women, in GLOBALIZATION,
GLOBALIZATION, CULTURE
WOMEN'S
DEVELOPMENT 55
55 (Raj
(Raj Mohini Sethi ed., 1999).
1999).
WOMEN'S DEVELOPMENT
differences between male and female labor is that women's
women's
One of the most obvious differences
109. One
traditional
the home (running
(running the
the household, caring
caring for children) while men's
traditional role is in the
men's work is outside
(earning money to support the family). At the same time, this traditional distribution of roles can cause
(earning
conflict between cultural
development. In
In those
cultural backgrounds and stunt economic development.
those countries with
traditional discrimination against women, cultural (and
(and sometimes legal)
legal) restrictions limit female
participation
public governance.
governance. It
It is
is interesting
interesting to
that cultural
cultural traditions
which
and public
to note
note that
traditions which
participation in
in labor
labor and
negatively
developing countries. In Japan,
Japan, for example, women
negatively impact
impact women's labor exist not only in developing
traditionally
manage the
household while
men are
work at
are
If women
women work
at all, they are
traditionally manage
the household
while men
are sole
sole breadwinners.
breadwinners. If
mostly employed
subject to strict and often unreasonable
unreasonable discriminative rules, mainly in subordinate or
or
employed subject
auxiliary positions.
positions. See generally Kiyoko Kamio Knapp, Still Office Flowers: Japanese Women
Betrayed by the Equal Employment Opportunity Law, 18 HARV.
In a
country
HARV. WOMEN'S L.J. 83 (1995).
(1995). In
a country
like Japan, if globalization were to provide more involvement for woman in labor and increase
participation
of
participation in areas which were previously dominated by men, the effect
effect could
could be both the easing
easing of
cultural burdens on men, as well as the overall
id.
overall equalization of gender roles. See generally id.
110. NANCY
ECONOMICS AND FAMILY VALUES
NANCY FOLBRE,
FOLBRE, THE INVISIBLE HEART: ECONOMICS
VALUES ix (2001).
(2001).
I11.
Ill. Id.
/d.
112. Id.
113. Id.
/d.
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Berkeley Business
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6.1, 2009
Vol. 6.1,
making that harms the interests
interests of the woman, her family, and society becomes
114
norm.
the norm.
Women's "free"
"free" labor creates a vast distortion of economic
economic potential.
potential. When
a good is provided
provided without cost, the marginal social costs shoot up as the
benefits
benefit that good
benefits plummet. The cost of a good or service is equal to the benefit
or service
supply
service provides. This equilibrium assumes
assumes an appropriate balance of supply
and demand. However, when exposed to free services the market
market changes
changes
drastically. Supply and Demand
Demand theory
theory asserts that when the supply of a good
good
or service is high, or the price is low, the demand
demand for it will go up. As the
increases and
and
demand increases,
increases, the marginal
marginal social cost of the good increases
concurrently reduces the marginal social benefit, making it less efficient to seek
seek
that free good or service.
The fact that much of women's work lacks monetary value distorts the
longer
demand for such work. It has no price; therefore,
therefore, women can work far longer
of
hours than men. The social costs and benefits
benefits of free services thus fall out of
balance. The fact that women's work falls within the informal economy
or
home, such
such as childcare or
deprives it of a clear price. The free price of work at home,
housekeeping, especially
housekeeping,
especially skews the cost/benefit
costlbenefit balance.
balance. The more time a
woman spends on this work, the higher the marginal social cost and the lower
lower
"cost" to the family for
the marginal
marginal social
social benefit
benefit received. Since there is no "cost"
excessive women's
excessive
women's work, the family demands it, thereby
thereby driving down the
benefit per hour spent. At some point, the hours spent reach a marginal benefit
benefit
I15
zero.
115
of
Because
Because of the destructive
destructive effects of women's exclusion
exclusion from the formal
economy, many
many economists have tried to assess the value of such work to
rationalize
rationalize its utility.
2.
Calculate Women's Work
Moving Beyond Informality:
Informality: Efforts to Calculate
Given the above economic challenges, many countries
countries simply omit
omit
women's work from their reported
economic
activity.
116
Thus,
reported
labor
reported
activity.116
actually
participation rates for women
women fail to accurately
accurately demonstrate
demonstrate the hours actually
worked by women. For this reason, economists
economists resort to estimating such
such
uncompensated work."1
uncompensated
work.1177 Economists have spent decades trying to ascertain
ascertain the
114. For example, in the formal manufacturing sector, women can often take material home and
and
114.
work on
on it,
it, thereby
formal work
with unpaid
unpaid household
While the
the value
of women's
work
thereby combining
combining formal
work with
household work.
work. While
value of
women's
work in
in this
this scenario
scenario might
might increase
increase (due
the flexible
time schedule),
schedule), Mehta
argues that
UNIDO data
data
work
(due to
to the
flexible time
Mehta argues
that UNIDO
demonstrates that the manufacturer benefits from lower overhead, less organized labor intervention, and
lower wages.
wages. Ultimately,
Ultimately, women's
women's work does not represent aa higher value or produce more income in
in
lower
this scenario. See generally Mehta, supra note 108.
108.
102, at 137-83.
DEFENSE OF
115. See Beneria, supra note 102,
137-83. See also JAGDISH BHAGWATI,
BHAGWATI, IN DEFENSE
OF
GLOBALIZATION 79
79 (2004).
102, at 136-37.
116. See Beneria,
Beneria, supra
supra note 102,
Id.
117. Id.
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Feminizing Capital: A Corporate
Corporate Imperative
Imperative
most effective
effective method to properly assign a value to "women's
"women's work,"
employing various methods, each possessing drawbacks. The two primary
methods, input and output, use different
different techniques to assess women's
women's
contribution to the economy. Overall,
Overall, these estimates reveal
reveal that women work
average. lIS
on average.
men on
far more hours than
than men
Input methods attempt to measure
measure the value of women's labor by the work
they perform. The focus is the effort expended
expended and the time spent by women in
measure by general substitutes,'
substitutes,120 specialized
their production. 119 Input models measure
specialized
122
2 or opportunity
substitutes,
input-based methods account for
While input-based
cost. 122
substitutes,1121
women's time and effort, they do not necessarily
necessarily provide
provide an accurate
accurate portrait of
of
social and familial welfare.
Output-based
estimates require imputing the value of domestic
domestic production
production
Output-based estimates
and then deducing
deducing the value of the production
production efforts. However, it is nearly
nearly
impossible
to
estimate
the
appropriate
value
of
women's
work
because
its
end
impossible
appropriate
women's
because
products have different quality or utility values. More significantly, a feminist
23
assessment.,123
beyond assessment.
value beyond
of work
critique posits
posits that certain kinds of
work have
have aa value
For example,
one-on-one
example, what is the value of childcare
childcare for one hour? Is one-on-one
childcare valued
of
childcare
valued the same
same as group childcare? These are examples of
work estimates.
substantive limitations to
substantive
to output-based
output-based work
estimates. 124
124
118. See A
A Guide to Womenomics: Women and the World Economy, THE ECONOMIST,
15,
ECONOMIST, Apr. 15,
2006, at Finance &
& Economics Section. See also The Importance
Importance of
Sex; Women in the WorkJorce.
Workforce, THE
oJSex;
ECONOMIST,
15, 2006, at Leader Section.
ECONOMIST, Apr. 15,2006,
119. See Beneria, supra note 102,
102, at 143-44.
143-44. Based on an OECD
OECD research
research elaborating
elaborating the
the
categories detailed below. See also A.
A. Sylvester Young,
from Households non-SNA production: A
Young. Income
IncomeJrom
Review, http://www.ilo.org/public/english/bureau/stat/download/articles/2000-22.pdf
(last visited Nov.
http://www.ilo.org/public/englishlbureau/stat/download/articles/2000-22.pdf (last
6, 2009).
6,2009).
120. The Global Substitute method uses the cost of a hired domestic worker assumed to be paid to
carry out all types of household tasks. This method
method underestimates the value of the work since the wages
102, at 143-44. Chadeau states that it is
assigned to domestic help are so low. See Beneria, supra note 102,
unlikely that all housework tasks could be performed
performed by an unqualified housekeeper because some
activities require specific skills and are not performed
performed equally in all households. See Chadeau, supra
note 105,
105, at 93.
121.
each
121. The Specialized Substitute method uses the average wage of a specialist with skills for each
household task. This method generally
generally is considered to account for a more accurate level of activity,
although it may overestimate the value of such work. See Beneria,
102, at 143-44. In
Beneria, supra note 102,
addition,
of
addition, Chadeau
Chadeau states that it is unlikely that households would in fact hire such a wide range of
specialized personnel.
personnel. See Chadeau, supra note 105,
105, at 93.
122.
122. The Opportunity Cost method, based on the wage that the person performing domestic work
could receive in the market, yields the broadest range of estimates. Educated
Educated people engaged
engaged in menial
labor
labor will have their time accounted
accounted for based on the value of the labor produced by employment that
that
utilizes
102, at 143-44. Chadeau
utilizes that education. See Beneria, supra note 102,
Chadeau criticizes
criticizes this method because
because
the work resulting in the production of a good or service
service in the home is estimated at the value of work
producing
105, at 93.
93.
producing a completely
completely different
different good or service on the market. See Chadeau, supra note 105,
Another
individuals are able to work on the labor market
assumption that individuals
Another criticism of the method is the assumption
for as many hours as they wish in jobs suiting their professional qualifications,
qualifications, when in reality many
many
individuals
individuals will be unemployed or working for minimum wage. See id.
123. See generally NANCY FOLBRE,
FOLBRE, THE INVISIBLE HEART: ECONOMICS
ECONOMICS AND
AND FAMILY
FAMILY VALUES
(2001).
(2001).
124.
UN International
124. The
The UN
International Research
Research and Training Institute for the Advancement
Advancement of Women
(INSTRAW)
(INSTRA W) argues
argues that there have been very few attempts to estimate
estimate the value of household output.
output.
77
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Vol.
Vol. 6.1,
6.1, 2009
Berkeley Business
Berkeley
Business Law Journal
3.
The Benefits ofEstimating
Because
complexity and ambiguity, the value of women's
women's
Because of its inherent
inherent complexity
25
estimate.'125
Despite this obstacle, estimating the value of
of
work is difficult to estimate.
women's work favors women in several ways. According to a liberal economic
economic
model, when
when the market assigns a value to women's work, it reduces
reduces the
126
126
As Jagdish
Jagdish
subsidy that women
women provide to childcare
childcare and housework.
Bhagwati
"care chain" is the
Bhagwati argues,
argues, one benefit of the growing global "care
27
monetization of women's work.'
monetization
work. 127
Bhagwati reasons that women entering the
the
"formal"
workforce
discard
their
subsidy
of
housework
and
childcare
childcare with real
"formal" workforce
28
effects. 128
"[O]ne
"[O]ne can argue that this traditional subsidy now must be replaced
replaced
by an explicit subsidy to child
.... [C]hild care's importance,
importance, its social
child care ....
value, is now visible, not hidden by the submerged
submerged and subsidized
subsidized provision
provision of
of
29
it by women
confined
to
the
home."'
Thus,
one
key
advantage
of
women's
women
home.,,129
advantage
women's
entering
entering the formal economy is that it exposes the value of childcare
childcare and home
management,
management, requiring
requiring families to make economic
economic decisions.
Social position often depends largely on wealth or potential wealth, the
ability to generate
generate income. At both the family and national levels, valuing
women's
suffer
women's work would shift women's social position. Much abuse women
women suffer
is tied to the presumption that they fail to significantly contribute to a country's
country's
compensated, the shift in resources toward
toward
economy. If women's work were compensated,
women
countries would
women would improve their social position. Women in certain
certain countries
would
utilize their familial position to sell
sen their labor and provide additional family
family
THE
INTERNATIONAL RESEARCH
ADVANCEMENT OF WOMEN
THE INTERNATIONAL
RESEARCH AND
AND TRAINING INSTITUTE
INSTITUTE FOR THE ADVANCEMENT
[INSTRAW], MEASUREMENT
MEASUREMENT AND VALUATION
CONTRIBUTION: ACCOUNTING THROUGH
[INSTRAW],
VALUATION OF UNPAID CONTRIBUTION:
THROUGH
TIME
AND OUTPUT
OUTPUT 66 (199S).
(1995). Output-based
Output-based methods
value added
See
TIME AND
methods include
include value
added and
and gross
gross output
output method.
method. See
Memorandum GA
GA SII
511 from Trevor
Memorandum
Trevor Cobbold
Cobbold on A Comparison
Comparison of Gross Output and Value-Added
Methods of
of Productivity
Productivity Estimation to Australian Government Productivity Commission, (Nov. 2003),
http://www.pc.gov.au/ data/assets/pdf-file/0010/72289/cgovam.pdf. Value added output
available at http://www.pc.gov.aul_dataiassets/pdCfile/0010172289/cgovam.pdf.
excludes intermediate
intermediate inputs
and services used up in the process of production),
excludes
inputs (materials, energy, and
while the
the gross
gross output
output measure
measure includes
factors. See
output measure
measure is
See id.
id. The
The value-added
value-added output
is related
related
while
includes these
these factors.
to capital and labor as inputs, while gross output is related to capital, labor, and intermediate inputs. See
id. The difference
difference between the two concepts of productivity growth is less pronounced at the aggregate
id.
id.
(or national)
national) level than it is at the sectoral or industry level. See id.
125. Feminist
Feminist economists have criticized the opportunity cost, global substitute, and specialized
12S.
substitute methods
methods currently used to assess the value of household work as perpetuating the problem of
of
substitute
women's
See
Posting
Pietild
to
femecon-l,
low-paid
labor.
of
Hilkka
Pietila
femecon-I,
http://www.listproc.bucknell.edu/archives/femecon-1/199906/msgOOO15.html
(June 2,
2, 1999).
1999). The
The
http://www.listproc.bucknell.eduiarchives/femecon-I/199906/msgOOOIS.html(June
output-based evaluation
evaluation method
method suggested by INSTRA
INSTRAW
output-based
W avoids the problem posed by these methods,
although itit obviously
gives different
values in
in different
countries related
to the
each country's
different countries
related to
the level
level of
of each
country's
although
obviously gives
different values
market prices
prices and
salaries. See
See id.
related, country-by-country
country-by-country analysis,
analysis, see
see Luisella
market
and salaries.
id. For
For aa related,
Luisella GoldschmidtGoldschmidtClermont & Elisabetta Pagnossin-Aligisakis, Measures
for Unrecorded Economic Activities in Fourteen
Measuresfor
Clermont
Countries,
HUMAN
DEV.
http://hdr.undp.org/en/reports/global/hdri 995/papers/luisella-goldschmidt-clermiont.pdf.
http://hdr.undp.orglenlreports/global/hdrI99S/papers/luisella~oldschmidt-clermont.pdf.
126.
126.
127.
128.
129.
Bhagwati, supra
note liS,
115, at
at 78.
78.
Bhagwati,
supra note
Id.
Id.
Id.
Id.
Id.
Id.
78
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REPORTS,
REPORTS,
Feminizing Capital: A Corporate Imperative
Imperative
Feminizing
30
household wealth.
income, leading to increased
increased household
wealth. 1130
Feminist
Feminist detractors
detractors of globalization
globalization argue that monetizing women's work
131
would make it seem unimportant, leading
Although
devaluation. 131
leading to its devaluation.
increased
women's
trade
and
participation
in the labor force provides
provides women
increased
with direct financial compensation,
compensation, for many women, formal and public work
seems more like an obligation
obligation rather than a choice. As anti-globalization
anti-globalization
feminists assert, such work victimizes women more than traditional economic
economic
32 To the
structures
therefore non-monetized. 132
structures where work is solely private and therefore
contrary, proponents argue that assigning some monetary value to women's
women's
labor, where
where none previously
previously existed, increases
increases women's social status and
33
women.1133
These benefits
benefits enable
enable more effective
effective intradecreases abuse against women.
130. Another important aspect of globalization
globalization is the social
social impact on women. Women's multiple
hamper participation
"public" labor force. See THE WORLD BANK, GENDER AND
burdens hamp"r
participation in the "public"
AND
DEVELOPMENT IN THE MIDDLE
SPHERE, (2003),
(2003),
DEVELOPMENT
MIDDLE EAST AND NORTH AFRICA: WOMEN AND THE PUBLIC SPHERE,
available
I8.worldbank.org/mna/mena.nsf/Attachments/GenderReportat
http://lnweb 18.worldbank.org/mna/mena.nsfl
Attachments/GenderReportoverview/$File/GENDER-REPORToverview.pdf.
overview/$File/GENDER-REPORToverview.pdf. This is particularly
particularly true for women in working class
households. In MENA countries, for example, in spite of the fact that sixty three percent of the
university students were women in 2000, they represented
represented only twenty
twenty eight percent
percent of the workforce,
workforce,
meaning that the MENA region is not capturing a large
large part of the return on investment
investment and that
women's presence in political
political and public policy areas
areas is still very low. See id.
id. However,
However, in spite of the
clear
latter, women's participation
participation in labor has increased
increased by fifty percent since
since the 1960s, which is a clear
id. This is a general notion relating not only to MENA countries,
other
improvement. See id.
countries, but to any other
country as well. Utilizing benefits
benefits of work by well-educated
well-educated women has a positive
positive impact to the
economy in general,
general, relates
relates to resolving social crises, and counterbalances
counterbalances the eventual negative effects
globalization as well. Dau-Schmidt
of globalization
Dau-Schmidt suggests
suggests that government
government programs
programs promoting
promoting female education
in all fields are required in order to make use of valuable labor resources of women. See generally
Kenneth G. Dau-Schmidt, Dividing the Surplus: Will Globalization Give Women a Larger
LarKer or Smaller
Smaller
Share of the Benefits of Cooperative Production?
Production?, 4 IND. J.
J. GLOBAL LEGAL STUD. 51 (1996).
(1996).
131. See Beneria, supra
supra note 102.
102.
131.
15, at 78.
132. Bhagwati,
Bhagwati, supra note I115,
78.
133. Globalization
"women often bear a disproportionate burden of the
the
133.
Globalization is a feminist issue because "women
costs of globalization."
globalization." Uche U.
U. Ewelukwa, Centuries of Globalization; Centuries of Exclusion: African
Women,
'New' International Trade Regime, 20 BERKELEY
BERKELEY J.
GENDER L. &
& JUST.
Women. Human Rights and the 'New'
J. GENDER
75, 80 (2005). "[Fleminists
"[FJeminists seek
seek to 'resist
'resist the practices of exploitation and division of people
people against
comparative advantage, free trade, and the
each other that are inherent in notions of competition, comparative
international division of labor.
labor."'
globalization is a "means
"means of
international
", Id.
/d. And with respect
respect to economics,
economics, globalization
of
imagining the world that is premised upon denigrating
denigrating that which is understood
'feminine."'
understood as 'feminine.
", Id.
Id.
Ewelukwa states,
phenomenon, that
Ewelukwa
states, in contrast with those who believe globalization
globalization is a beneficial
beneficial phenomenon,
developing
vulnerability of the agricultural
agricultural sector in the global economy,
economy, shrinking market share for developing
countries' exports, crisis in the commodity
countries'
commodity markets, and the market dominance of transnational
corporations are
are some of the factors that currently
currently account for the gap between theory
theory and practice. Id.
Id. at
83. Penelope
83.
Penelope Andrews states that globalization "has merely cemented
cemented women's unequal economic
economic
regulatory agents of
status" through the "structural
"structural adjustment" imperatives
imperatives imposed
imposed by the financial regulatory
of
globalization, the World
World Bank
Bank and the International
International Monetary
Monetary Fund, merely
merely reinforcing
reinforcing women's
women's
subordinate status. See Penelope
Penelope A. Andrews, Globalization,
Globalization. Human Rights and Critical Race
GENDER RACE &
& JUST. 373, 390 (2000). Saskia
Feminism: Voices from the Margins, 3 J. GENDER
Saskia Sassen argues
modem times, i.e. that women are often forced to
for a historically evident
evident tendency
tendency that still exists in modem
Towards a Feminist
take up low-paid
low-paid positions and occupations. See generally
generally Saskia Sassen, Towards
Feminist Analytics
of the Global
Global Economy,
Economy, 4 IND. J. GLOBAL LEGAL STUD. 7 (1996).
in
(1996). Dau-Schmidt adds that employers
employers in
global export
industries decidedly
prefer female employees, and provided that such jobs provide
global
export industries
decidedly prefer
opportunities and skills previously unavailable
unavailable to women, this is a benefit for women because itit
improves their bargaining position
position with respect to traditional economic and social relationships.
However, a negative
globalization may be destruction
negative impact
impact of globalization
destruction of some traditional
traditional cultural norms
norms
protecting women and meeting
meeting their needs. Dau-Schmidt, supra
supra note 130, at 56-57.
79
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6.1, 2009
familial financial decisions, increasing
increasing women's status within the family and
providing them with the agency needed to prevent abuse.
detennine women's role in the economy include
The goals of the studies to determine
establishing a more even distribution of power amongst men and women and
increasing
increasing the generation of wealth in society. The CBQ's effort to take
advantage of the resources
resources offered by Norway's
Norway's women, in combination
combination with
advantage
134
its men, is an important
important step in realizing these goals.'
goals. 34 Despite the possible
possible
contrary
statement, the actual level of women's participation
contrary inference of this statement,
35
in the Norwegian workforce
workforce is quite high. 1135
However, women's role in
corporate
corporate decision making is well below this level. 136 One potential reason for
this disparity is the historical connection between Scandinavian
Scandinavian feminist efforts
1
137
Th"
.
.
l'
and
socialist
movements.
37
This
connection
causes
an d socia 1St
IS connection causes many women to resist
contributing
anti-capitalist
contributing to capitalism
capitalism when their feminism suggests anti-capitalist
38
sentiments. 1
138
sentiments.
B. Cracking
Crackingthe Glass
Glass Ceiling
Ceiling and Trickle-Down
Trickle-Down Effects
"glass
As Hillary
Hillary Clinton's presidential
presidential bid helped
helped crack the political "glass
39 Breaching
ceiling,"
ceiling," the CBQ will achieve
achieve this effect in the corporate sector,
sector. 1139
Breaching
this glass ceiling, which prevents
executive
prevents women from attaining
attaining board
board or executive
obtaining
positions, has several effects. For women
women pressed
pressed against this ceiling, obtaining
elevated corporate positions would realize their professional dreams.
such elevated
Aside from satisfying
Aside
satisfying this small group of women, shattering
shattering the glass ceiling
corporate operations,
would have greater
greater effects on corporate
operations, national
national economy, and
.mternationa
.
I economy.
140
economy.140
international
Bringing women into corporate
corporate decision making positions
positions will lead to
134. Ministry of Children and Family Affairs, Rules on Gender Representation on Norwegian
(last
Company Boards, http://odin.dep.no/bld/english/topics/gendereq/004071-990149/dok-bn.html
http://odin.dep.nolbldienglishitopics/gendereq/004071-990149/dok-bn.html(last
visited Nov. 6, 2009).
2009).
135. "According
"According to the 2004 figures, seventy-five percent of all women aged 25-66 are on the
workforce ..... . . ."." Norway-Caribbean.org,
Norway-Caribbean.org, Education and Workforce, http://www.norwayhttp://www.norwaycaribbean.org/AboutNorway/policy/Equal-Opportunities/gender/workforce/
caribbean.org/AbouCNorway/policy/Equal-Opportunities/gend
er/workforcel (last visited Nov. 6, 2009).
2009).
id.
136. See id.
137. Thanks to Ulrika Dahl for this thought. One leader in the CBQ effort agreed that this link
137.
between feminism and socialism may be aa cause of the low numbers of women in corporate governance.
Interview
Interview with Siri Sorenson, Research Associate, and Mari
Mari Teigen, Research Director, Institute for
Social Research, Oslo, Norway (Mar.
(Mar. 17,
17, 2008).
138. Mari Teigen also posits, perhaps foreseeably, that "[i]n
"[iln Norway the main reason is that not
responsibilities." Id.
Id.
enough women come forth to take this kind of positions, they have too much caring responsibilities."
139. See generally LINDA R. HIRSHMAN,
HIRSHMAN, GET TO WORK: A MANIFESTO
THE
MANIFESTO FOR WOMEN OF THE
WORLD
WORLD (2006).
140. Feminist
Feminist analysis often relies on aa "bottom-up"
"bottom-up" analysis to understand how class and gender
gender
interact, with a focus on the impoverishment
women. Understanding the full implications of aa class
impoverishment of women.
analysis requires attention to inequalities at the top of society as well. The emphasis on corporate board
analysis
members
directly at
at women
women who
differentials. See.
benefit from
from class
See, e.g., Martha
Martha
members clearly
clearly looks
looks directly
who benefit
class differentials.
McCluskey, Subsidized Lives and the Ideology of Efficiency,
Efficiency, 8 AM. U.
POL'Y & L. 115
115
U. J.
J. GENDER
GENDER SOc.
SOc. POL'y
(2000).
(2000).
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Feminizing
Corporate Imperative
Imperative
Feminizing Capital: A Corporate
different corporate
corporate management
management styles and decision
decision making, as Lisa Nicholson
and others argue.
argue.141
141 Changing the makeup of those who govern
govem corporations
will strengthen
well as improve the career prospects
prospects
strengthen gender equality efforts as weB
for educated
educated women. Moreover, homogenous
homogenous group members often "avoid
"avoid
142
asking those tough questions likely to spark dissension,,,142
frequently
dissension,"
and frequently
"arrive
faulty judgments
judgments due
due to
to procedural
procedural defects
decision-making
"arrive at
at faulty
defects in their decision-making
143
processes."'
These homogenous
homogenous groups tend to have similar experiences and
and
processes." 143
opinions and "the opportunity
generate new ideas,
opportunity to generate
ideas, insights, and better
better
' 144
solutions is lost.'
Beyond
lost.',144
Beyond breaching
breaching the masculine
masculine homogeneity of the
board, significant
significant differences
differences exist between
between groups of men and women.
Gender-based
communication and teamwork wiB
will create
Gender-based differences in communication
create new
ways of solving problems, as feminists have argued for many years. 145
145 Some
feminists suggest
suggest that women
women use different standards and approaches
approaches than men
141.
"New" Corporate
Corporate Governance:
Governance: Making In-Roads to
141. Lisa Nicholson, Women and the "New"
Corporate
Counsel Positions:
Positions:It's Only a Matter
Corporate General
General Counsel
Matter of Time?, 65 MD. L. REV.
REV. 625, 634 (2006).
142. Id.
Groupthink, 71 U.
Id. at 636. See also Marleen O'Conner, The Enron
Enron Board:
Board: The Perils
Perils of Groupthink,
CIN.
L. REV.
1233 (2003)
"groupthink," which
ON. L.
REV. 1233
(2003) (arguing that the Enron debacle was due at least in part to "groupthink,"
results when
when aa cohesive and homogenous
homogenous group's desire for unanimity impedes the group's ability to
realistically evaluate other alternatives, causing them to make faulty judgments); Steven A. Ramirez, A
Flaw
Sarbanes-Oxley Reform: Can
Can Diversity in the Boardroom
Quell Corporate
CorporateCorruption?,
Corruption?,77
Flaw in the Sarbanes-Oxley
Boardroom Quell
77
ST. JOHN'S L. REV. 837, 844-45 (2003)
(2003) (arguing that corporate
board's
corporate diversity improves the corporate board's
overall functions and decision making, as well as enhancing the "independent
"independent thinking that could serve
as a
check on
on management prerogatives," and preventing corporate corruption before it happens); Lynne
a check
L. Dallas, Does
Does Corporate
CorporateLaw Protect
Shareholdersand Other
Other Stakeholders?:
Protect the Interests
Interests of Shareholders
Stakeholders?: The New
Managerialism
and Diversity
Diversity on Corporate
Boards of Directors,
Directors, 76 TUL L. REV. 1363, 1391 (2002)
(2002)
Managerialism and
Corporate Boards
(arguing that diverse groups have a tendency to make "higher
"higher quality decisions in matters involving
creative and
and judgmental
judgmental decision making,"
making," thus improving the quality of discussion in creative or
judgmental
judgmental decision making; Dallas cites "cognitive
"cognitive conflict"
conflict" to explain this phenomena: diverse groups
have "conflicting opinions, knowledge, and perspectives that result in a more
of
more thorough consideration of
a
a wide range of interpretations, alternatives, and consequences.").
143.
141, at 637. Nicholson argues that homogenous groups "stake
143. Nicholson, supra
supra note 141,
"stake out
extreme
extreme positions,"
positions," and often "limit
"limit [their] discussions to aa small number of alternative courses of action
without
surveying the
the full
alternatives." Id.
also O'Conner,
1240
without surveying
full range
range of
of alternatives."
Id. See also
O'Conner, supra
supra note 142,
142, at 1240
(discussing polarization [where like-minded
like-minded individuals in homogenous groups tend toward extreme
decisions]
cascades [where
[where an
decisions] and
and cascades
an entire
entire group
group quickly accepts a certain view because some group
members
"groupthink" reflected the
members appear
appear to accept that perspective]; O'Conner
O'Conner ultimately argues that "groupthink"
specific situation of Enron rather than polarization or cascades). Nicholson also cites (as
(as do many of the
sources she relies on)
"groupthink" idea. See,
See, e.g., IRVING L. JANIS,
on) the originator of the "groupthink"
JANIS, VICTIMS
VICTIMS OF
GROUPTHINK
(1972); IRVING
GROUPTHINK (1983).
GROUPTHINK (1972);
IRVING L. JANIS, GROUPTHINK
(1983). The problem with cohesive, homogenous
groups,
according to
to Janis, is that "the
"the greater aa group's cohesiveness[,] the more power
groups, according
power it has to bring
about conformity to its norms and to gain acceptance of its goals and assignment to tasks and roles."
roles." Id.
at 4-5.
144.
141, at 638; accord
supra note 143; Janis, supra
144. Nicholson, supra
supra note 141,
accord O'Conner, supra
supra note 144.
144.
See also
also Steven
Ramirez, Games CEOs
CEOs Play
Convergence Theory: Why
Lags in
Interest Convergence
Why Diversity Lags
in
Steven Ramirez,
Play and Interest
America's Boardrooms
It, 61 WASH.
1583, 1587 (2004)
WASH. &
& LEE L. REV. 1583,
America's
Boardrooms and What to Do About It,
("Diversity in the boardroom enhances corporate profitability, according to the consensus of scholars of
of
("Diversity
business
management, finance,
finance, and
economics. In
diversity seems
seems to add aa dimension of
of
business management,
and economics.
In addition,
addition, diversity
abrasion that
serve to
that can
mitigate groupthink
thereby heighten
heighten the
the cognitive
cognitive functioning of the
abrasion
can serve
to mitigate
groupthink and
and thereby
corporate boards").
145. Nicholson,
Nicholson, supra
141, at
at 638-39.
On the
the ability
ability of
of gender
diversity to
to "analyze
gender diversity
"analyze and
and
145.
supra note
note 141,
638-39. On
improve
our world,"
T. Bartlett,
Bartlett, Feminist
Legal Methods,
Methods, 103
HARV. L.
L. REV.
829, 835
835
improve our
world," see
see Katharine
Katharine T.
Feminist Legal
103 HARV.
REV. 829,
(1990).
(1990).
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dilemmas, 46 while others argue that women are more effective
to solve
solve moral
• . 147 dilemmas,146
147
Feminists further argue that women's experiences lead to more
negotiators.
48
productive relationships in the work setting.
of
setting.1148
Finally, women in positions of
power likely understand
understand more about women's household subsidies
subsidies and their
49
effects on the economy.
economy.149
women understand
understand the burden and cost of
of
Most women
household work, and can factor this50 into establishing
establishing corporate policies to
of labor.'
uses of
efficient uses
produce more efficient
labor. 150
Douglas
Branson's recent book No Seat
Seat at
at the Table:
Corporate
Douglas Branson's
Table: How Corporate
Governance
and Law Keep Women Out
Out of the Boardroom
Governance and
Boardroom addresses some
some key
151
especially tokenism.
corporate boards,
on corporate
role on
concerns
boards, especially
tokenism. 151
concerns about women's role
Branson's
concerns the behavior of the majority when confronted with
Branson's analysis concerns
146. Nicholson, supra note 141,
141, at 639. Nicholson mentions for example, the "Jake
"Jake and Amy"
Amy" case
studies of Carol Gilligan, where children are asked to solve moral problems, boys tended to balance
"individual
rights" while girls "used
'ethic of care'
"individual rights"
"used the 'ethic
care' to demand more information about the persons
principles." Id.
Id. See
involved in the scenario, rather than making abstract decisions based on universal principles."
also CAROL GILLIGAN, IN A
A DIFFERENT
DIFFERENT VOICE:
VOICE: PSYCHOLOGICAL
PSYCHOLOGICAL THEORY
THEORY AND
AND WOMEN'S
WOMEN'S
DEVELOPMENT 25-29 (1982);
DEVELOPMENT
(1982); Kingsley R. Browne, Biology, Equality, and the Law: The Legal
Legal
Significance of Biological Sex Differences, 38 SW.
Sw. L. J.
J. 617, 618-19 (suggesting that biological
differences significantly impact temperament
145, at 835.
temperament and cognitive thinking); Bartlett, supra note 145,
In India, for example, corporations have offered existing employees
employees bonuses of as much as 25
25
147. In
percent for referring a female employee. Corporate India Lures Women Employees, EXPRESS
EXPRESS INDIA,
INDIA,
Apr. 7,
7, 2008, available at http://www.expressindia.comlatest-news/Corporate-India-lures-womenhttp://www.expressindia.comllatest-news/Corporate-India-Iures-womenemployees/293583/. Indian companies are eager to apply female perspectives
perspectives to their business model,
and generally see women as better
better professionals than men. See id. For one study which contradicts the
stereotypical belief that men outperform
outperform women in competitive settings, see Charles Craver & David
Barnes,
Taking, and Negotiation Performance,
(1999).
Performance,S5 MICH.
MICH. J.
J. GENDER
GENDER & L. 299,
299, 302 (1999).
Barnes, Gender, Risk Taking,
141, at 639-40. See also Carrie
148. Nicholson, supra note 141,
Carrie Menkel-Meadow,
Menkel-Meadow, Excluded Voices:
New Voices in the Legal Profession Making New Voices in the Law, 42 U.
U. MIAMI L. REV.
REV. 29, 43-45
(1983) (arguing
(1983)
(arguing that women gain a unique perspective from exclusion and should use their perceived
"ethic of care"
differences [like Carol Gilligan's
Gilligan'S "ethic
care" idea] to explore new ways of contributing to the legal
[specifically mentioning "less
methods" of dispute resolution]). For similar
profession [specifically
"less adversarial methods"
arguments on the tendency of women in the legal profession to display less competitive and more
negotiation-oriented leadership styles, see Carrie
Culture Clash in the Quality of Life
Carrie Mendel-Meadow,
Mendel-Meadow, Culture
Life
in the Law: Changes in the Economics, Diversification
Diversification and Organization of Lawyering,
Lawyering, 44 CASE
CASE W.
RES.
621, 639-40 (1994);
(1994); Deborah
Rhode, Missing Questions: Feminist Perspectives on Legal
Legal
RES. L. REV.
REV. 621,639-40
Deborah Rhode,
Education, 45 STAN.
1550-51 (1993);
(1993); Cynthia
STAN. L. REV. 1547, 1550-51
Cynthia Grant Bowman,
Bowman, Bibliographical Essay:
SOC. POL'Y
& L. 149,
(1999). Finally, for aa
Women and the Legal Profession, 7 AM. U. J.
J. GENDER SOc.
POL'y &
149, 172 (1999).
discussion of
of the
the different approaches
approaches of women in corporate leadership positions in the popular press,
press,
discussion
WEEK, Nov. 20, 2000, available at
see Rochelle Sharpe, As Leaders Women Rule, BUSINESS
BUSINESS WEEK,
http://www.businessweek.com/2000/00_47/b3708145.htm
that
the
peoplehttp://www.businessweek.coml2000/00_47lb3708145.htm
(arguing
peopleand
communication-oriented, non-adversarial approaches of women make them invaluable in the business
world today).
149. DOUGLAS
BRANSON, No SEAT
AT THE TABLE:
GOVERNANCE AND LAW
DOUGLAS M. BRANSON,
SEAT ATTHE
TABLE: HOW
How CORPORATE GOVERNANCE
KEEP
BOARDROOM 109 (2007).
(2007).
KEEP WOMEN OUT
OUT OF THE
THE BOARDROOM
150.
"women's
150. However, according to Siri Sorenson, many women do not identify with this "women's
perspective":
perspective": "[B]ut
"[B]ut women within the corporate sector they have argued that they don't feel that they fit
into this
this gender
gender image
image that's
that's made
made or
formed thorough
debates and
and they're
into
or formed
thorough these
these debates
they're quite
quite uncomfortable
uncomfortable
that
be more
more focused
focused on
on ethics
ethics or
or whatever they're expected to be because they are
that they
they are
are expected
expected to
to be
women."
with Siri
women." Interview
Interview with
Siri Sorenson
Sorenson & Mari
Mari Teigen,
Teigen, supra note 58.
151.
description of women's token role on overwhelmingly male corporate boards
151. Branson's
Branson's description
parallels
Lani Guinier's
discussion of
of Black
Black political
political representatives in overwhelmingly white
parallels Lani
Guinier's discussion
legislatures. See
Guinier, The
The Triumph
Triumph of Tokenism, 89
MICH. L.
L. REV.
REV. 1077
(1991).
legislatures.
See generally
generally Lani
Lani Guinier,
89 MICH.
1077 (1991).
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Feminizing Capital: A Corporate
a single member of a minority group.152 The member is treated as a token and
53
becomes
Ridicule
criticism. 153
Ridicule increases
increases as additional
becomes the focus of jokes and criticism.
minority members join, increasing
increasing the perceived threat to the majority.154
majority. 154 For
For
promoted to senior
this reason, fewer women are promoted
senior management
management positions.
Corporations
senior
Corporations draw board positions from a pool largely composed
composed of senior
55
positions,'
board
for
available
are
women
eligible
few
Since
management.
management.
women are available for board positions,155
few women attain board positions. This treatment of women negatively impacts
their mental and physical health, resulting in job turnover, the use of sick leave,
and losses to individual and workgroup
workgroup productivity.156
productivity. 156 When
When there is a lack of
of
productivity, those women are least likely to advance in the company.
"token" and the fact that tokenism creates
creates
Branson analyzes the nature
nature of a "token"
157
157
heightened
visibility
within
an
organization.
heightened visibility
organization.
The dominant group tends to
circle together, focusing on its commonalities, while subjecting
subjecting the minority
58
group to increased scrutiny.'
performance
scrutiny.158
A female token faces various performance
pressures,
herself, or
pressures, such as being asked to speak for all women
women instead of herself,
being noticed more for her "female
"female status" rather than her achievements
achievements in the
workplace.
achievements
workplace. 159
159 The token must balance drawing attention to real achievements
male peers. 160 As a result, the token will do
with the risk of showing up her male
anything
anything from becoming socially invisible or outwardly reveling in her token
"glass cliff'
cliff' in which
which
status. 161 Women in leadership
leadership positions risk being on a "glass
women are placed
in
these
positions
in
desperate
situations,
when
the
risk
of
of
placed 6 2
desperate situations,
greatest.1
failure is greatest. 162
The token's presence
presence not only causes unwanted
unwanted focus on her actions, but
tends to strengthen the bonds and commonality
male
commonality among the dominant male
163
group.
approval, women may actually turn against
group.163
garner men's approval,
against other
164To gamer
hreatenmg
.
.
attain
0 kens
may accept
accept nont
stereotypes to attam
nonthreatening
stereotypes
Tokens
women. 164 T
152. See BRANSON,
supra note 149,at
149, at 109.
BRANSON,supra
153. Id.
Id.
154. Id.
Id.
155.
Id.
ISS. Id.
156. See National Women's
Workplace, Aug. 2000,
Women's Law Center, Sexual Harassment
Harassment in the Workplace,
2000,
http://www.nwlc.org/details.cfm?id=459&section=employment
http://www.nwlc.orgldetails.cfm?id=459&section=employment (last
(last visited Nov. 6, 2009).
157. See BRANSON,
supra note 149, at 111-12.
111-12.
BRANSON, supra
158. See id.
id. at Ill.
159. Id.
Id. at 113-14.
160. Seeid.
See id. at 114.
161.
Id.at 115.
161. Id.
lIS.
162.
Cliff. Evidence that Women are Over162. Michelle K. Ryan &
& S.
S. Alexander Haslam, The Glass Cliff:
Represented
MANAGEMENT 81 (2005),
Represented in Precarious Leadership
Leadership Positions, 16 BRIT. J. OF MANAGEMENT
(2005), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=734677#.
Clive Thompson, Women in Power are
are
http://papers.ssm.comlsoI3/papers.cfm?abstracUd=734677#.Clive
Set
to Fail, N.Y.
TIMES
80, Dec.
14,
Up
to
N.Y.
TIMES MAGAZINE
MAGAZINE 80,
14,
2008, available at
Set
http://www.nytimes.com/2008/12/14/magazine/141deas-section4B-thttp://www.nytimes.coml2008/12/ 14/magazinel 14Ideas-section4 B-t2
006.htmlscp=
&sq=glass %20cliff&st=cse.
006.html?scp=2&sq=glass%20clitT&st=cse.
163.
id. at 117.
163. See id.
117.
164. Id.
Id.
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2009
66 When
acceptance,165
becoming invisible. 1166
acceptance, 165 or may cope with her status by becoming
significantly increase the majority's fear of
of
women's numbers increase,
increase, it can significantly
67
that minority.1
minority.167 Many of these characteristics
characteristics described by Branson have
to
and Mitu Gulati with regard to
parallels in the work of Devon Carbado
68
1168
.
..
. .. in
minorities
mmorIties
m management
management positions.'
positIOns.
Corporations
Corporations may seek to reduce the presence
presence of tokenism by increasing the
critical mass of women. 169
169 Quotas are the most direct solution to this problem.
Tokenism reflects a political as well as a social problem, which affects efforts
efforts
to increase
increase women's representation
representation in the governmental
governmental sphere. Without
Without
increasing women's numbers beyond
beyond a token level,
level, it is difficult
difficult to conclude
that progress has been made in improving gender diversity. Change will come
come
if all corporations adopt provisions
that
conform
to
a
high
level
of
gender
provisions
conform
balance. Without it, corporate
corporate boards will continue to struggle with inclusion
issues.
Yet Branson's analysis of the role of women
women on corporate
corporate boards does not
of
address the key component
component of the CBQ, the regular and substantial presence of
each gender. His analysis
analysis centers on the identity group women, rather than the
17 When gender diversity is a
gender diversity, which is the focus of the CBQ.
CBQ.170
in group decisions there will be more positive effects on decision
factor in
making. Of course, individual women in such leadership positions may have no
greater comprehension
comprehension of such questions than men do. However, having
women who understand the full nature of public, private, formal, and informal
participate in the decision making process
work all participate
process would ameliorate
ameliorate both the
process and the results that ensue.
Men also benefit from the CBQ because
because it requires that 40%
40% of board
17 1
positions be held by each gender. 171 Given the rising majority percentage
percentage of
of
women in higher education,
education, and presuming that those who are educated will
corporations and government, more and more women
assume elite positions in corporations
172
gradually occupy positions of power.
power.172
majority in
will gradually
As women form a majority
165. Id.
119. When the token allows
Id. at 119.
allows herself to be encapsulated in a role she may feel comfort in
stereotype may delay or limit her ability to achieve promotions
promotions and
filling a specific role, but the stereotype
recognition.
Id. See also ROSABETH
(1977).
recognition. Id.
ROSA BETH Moss
Moss KANTER,
KANTER, MEN AND WOMEN
WOMEN OF
OF THE CORPORATION
CORPORA TlON (1977).
166. BRANSON,
149, at 119.
BRANSON, supra note 149,
167. See id.
id.
168.
W. Carbado &
& Mitu Gulati, Race to the Top of the Corporate
168. Devon
Devon W.
Corporate Ladder: What Minorities
Do When They Get There, 61
61 WASH.
1652-54 (2004). The impact of these
WASH. & LEE L. REV. 1645,
1645, 1647 1652-54
theories
theories in the gender
gender context surface in greater detail in Rosenblum,
Rosenblum, Loving Gender Balance, supra
note 13.
13.
169. Id.
Id. at 123.
170. See generally id.
id.
171. See Norwegian
Norwegian Ministry
Ministry of Children and Equality, Balanced
Balanced Gender Representation on
Boards, supra note 42.
Corporate Boards.
172. Podcast:
Women
Are
Winners,
N.Y.
July
20,
2007,
N.Y.
TIMES,
2007,
http://cityroom.blogs.nytimes.com/2007/07/20/podcast-women-are-winners/?scp=3http://cityroom.blogs.nytimes.coml2007/07/20/podcast-women-are-winnersl?scp=3b&sq=women%27s+men%27s+salary&st=nyt.
b&sq=women%27s+men%27s+salary&st=nyt.
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Corporate Imperative
executive positions, men will benefit from and be
higher education
education and executive
protected by the CBQ. Although the constituency denies any interest in such
73
accident. 173
no accident.
is no
the CBQ
with the
balance with
protection, the emphasis on gender
gender balance
CBQ is
Gender equality is not simply a device for women's empowerment; it is an
an
effort to achieve and maintain balance, both now when men play a
disproportionate role and in the future when women may find themselves in
disproportionate
that position.
C.
PrivateEfforts Define Gender
Gender Equality
Equality
C. Private
While efforts such as the CBQ foster gender equality, they also further a
particular
particular vision of gender
gender equality that emphasizes capital
capital as the principal
measure
measure of worth. The basic objection to this ideal is that lives matter more
than capital. Detractors
Detractors of economic
economic models assert that the models fail to reflect
reflect
4
human cooperation, empathy, and collective
collective well-being.
17
weIl-being. 174
Feminist
economists that follow
foIlow this logic believe
believe it is impossible
impossible to set a price on
economists
175
"women's
work," such
such as
as care-giving.
Although this calculation occurs
"women's work,"
care-giving. 175 Although
informally
expose
simple
informally within the family all the time, these critics
expose the risks of simple
76
1
work.
women's
to
applied
analyses
cost-benefit
applied to women's work. 176
cost-benefit
critique that
Feminist economists posit a broader
broader methodological
methodological cntIque
undermines
economics-the neoclassical
assumption
that
undermines a key principle
principle of economics-the
neoclassical
humans behave rationally.
rationaIly. In reality, humans respond to "a
"a complex set of
of
77
often contradictory
contradictory tendencies."
tendencies."' 1177
One result of women working more is that
women take on both market-based
market-based responsibilities
responsibilities and responsibilities at home,
effectively
structure, women
effectively doubling
doubling their workload. Within this economic
economic structure,
women
work more for far less than equal pay, and their work at home remains
178
uncompensated. 178
uncompensated.
Indeed, as The Economist reported, women work far more
173.
See, Norwegian Ministry
173. See.
Ministry of Children
Children and Equality, Balanced Gender Representation
Representation on
Corporate
Children and Equality, Representation
Representation of Both
Corporate Boards,
Boards. supra note 42; Norwegian Ministry of Children
Sexes on Company
40.
Company Boards, supra note 40.
174. See generally Ewelukwa, supra note 133.
133.
175.
175. See generally McCluskey, supra note 140.
176.
e.g., Linda Bosniak, Citizenship,
Noncitizenship, and
of
176. See,
See, e.g.,
Citizenship. Noncitizenship.
and the Transnationalization of
Domestic
IMMOBILITY (Seyla
Domestic Work, in CITIZENSHIP,
CITIZENSHIP, BORDERS
BORDERS AND GENDER: MOBILITY
MOBILITY AND IMMOBILITY
(Seyla Benhabib
et al. eds., forthcoming). See also LINDA BOSNIAK,
BOSNIAK, THE CITIZEN
CITIZEN AND THE ALIEN: DILEMMAS
DILEMMAS OF
CONTEMPORARY
MEMBERSHIP (2008).
CONTEMPORARY MEMBERSHIP
(2008).
177. Gerald
Ride. Does
Does Anyone Else?: Experiments on
177.
Gerald Marwell & Ruth Ames, Economists Free Ride,
J. PUB.
PuB. EcON.
(1981).
the Provision of Public Goods IV, 15 J.
ECON. 295 (1981).
178. Multiple duties place multiple
mUltiple burdens on women,
women, devaluing the actual, overall value of their
married women
women
work for a salary and work at home. Difficult working conditions and lower wages lead married
to work in the informal sector due to their limited options. See Beneria, supra note 102,
102, at I116-17.
16-17.
Women
circle." ld.
Id. This pattern limits their
Women tend to be tied to informal work, which creates aa "vicious
"vicious circle."
work in
in
choices, opportunities, and has an adverse impact on performing
performing household and childcare work
addition to their paid and informal work. Id.
Id. The
The result is a tension between
between traditional cultural
background and changed social and economic circumstance.
circumstance. Id.
Id. Privatization and restructuring the
and
women's work. Id.
!d. While this has long term benefits, traditional communities and
economy also impacts women's
women whose lives are largely integrated with natural resources subject to these newly concluded
concluded
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hours on average
average than men when one includes housework
housework and child-rearing
child-rearing in
179
79
that calculation.
In
addition
to
these
arguments,
other
critics
target the
calculation.
arguments,
gender equality efforts of international financial institutions ("IFI"). Kerry
Rittich addresses one example
example of the promotion of private
private growth as beneficial
beneficial
to gender
gender equality, a World Bank policy report entitled
entitled Engendering
Engendering
180
Voice. 180
and Voice.
Resources, and
in Rights,
Equality in
Gender Equality
Through Gender
Development. Through
Development:
Rights, Resources,
Rittich argues that the report "simultaneously
"simultaneously challenges the mainstream
international gender equality paradigm, incorporates
incorporates some of its arguments and
international
strategies, and reflects
omissions."' 181 In addition to
strategies,
reflects back its blind spots and omissions.,,181
constructing
strategy that rests
constructing a vision of gender equality, the report proposes a strategy
on the use of market
discrimination, rather than
market incentives to discourage gender discrimination,
the international
international law approach
approach of holding the state responsible for gender
gender
equality.182 In conclusion, the report suggests that the state enables rather than
equality.182
directly
market
directly institutes gender equality, and therefore
therefore puts much faith in market
'privatized' model
incentives to meet that end. "The net result is a significantly 'privatized'
of gender justice, one in which furthering gender equality becomes coextensive
subordinated to, the demands of growth and
extensive with,
and in some
some way subordinated
and
' 183
efficiency."
efficiency." 183
Private efforts to foster gender equality also serve to define
define it. As Rittich
states, the World
World Bank focuses on educational
educational levels and other factors rather
84
and wealth.'
income, and
than substantive
substantive economic equality measured
measured by
by wages,
wages, income,
wealth. 184
outcome is that gender equality
The outcome
equality benefits
benefits from efforts by institutions such as
the World Bank. However, these efforts also serve to define the meaning of
of
normative values of the authors rather than
gender equality itself, reflecting
reflecting the nonnative
those of women
women in developing countries or feminist movements. These
concession contracts will have aa hard time. [d.
Id. In many South East Asian countries, for example,
women's
women's wages
wages have increased; yet, others say that low female wages are practically incentives for
investment, making multi-national
multi-national corporations
keeping women's
id. at
corporations interested
interested in keeping
women's wages low. See id.
at
126. The adoption of codes of conduct and implementing minimum working standards may reduce
investment
countries; however,
however, aa lack
of such
such minimum
minimum standards
or rules
rules will
will not
not
developing countries;
investment from
from developing
lack of
standards or
improve the general working conditions for women
[d. The
women or the economies of developing countries. Id.
issue is how developing countries where outsourced or subcontracted work is done could participate in
some of the benefits gained by multi-national corporations, including economic growth and gendergenderspecific
if that
is possible
possible at
id. at
at 126;
126; see also
also Andrews,
supra note
note 133.
133.
specific development,
development, if
that is
at all.
all. See id.
Andrews, supra
Guide to Womenomics:
Womenomics: Women and
and the World Economy, supra
supra note 118. Alan B.
179. See A Guide
B.
Krueger
government's
Krueger and Andreas Mueller, economists, recently analyzed data from the U.S. government's
American
American Time Use Survey and found that, on average, employed women spend more time on child
care and housework than employed men do. See Catherine Rampell, As Layoffs
Surge, Women May Pass
Pass
Layoffs Surge.
Men
in
Job
Force,
N.Y.
Feb.
5,
available
in
Job
Force,
TIMES,
5,
2009,
available
at
http://www.nytimes.com/2009/02/06/business/06women.html?_r-.
http://www.nytimes.coml2009/02/06Ibusiness/06women.html? _r= I.
180. Rittich,
Development, supra
180.
Rittich, Engendering
Engendering Development,
supra note 27, at 576.
181. Id.
[d.
181.
182. [d.
Id. at
at 582-84.
582-84. Rittich
Rittich proposes
proposes that the
the list
list of
of essential rights the
the report
report lists
lists is
is "curious":
"curious": "with
182.
"with
the
exception of
rights, they
they do
do not
not relate
to the
the three
three axes
to measure
the exception
of political
political rights,
relate to
axes used
used to
measure progress
progress in gender
gender
equality-education, mortality,
way." [d.
Id. at 584.
mortality, and political participation-in any obvious way."
183. Id.
183.
[d. at 577.
184. Id.
[d. at 582.
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concerns
concerns raise appropriate questions that require
require deeper analysis of private
efforts for gender equality.
While Rittich argues
argues that the World Bank's gender equality
equality efforts are not
not
substantive,
the
CBQ
constitutes
a
substantive
move,
because
it
requires
a
substantive,
constitutes
substantive
because
significant
significant element
element of the market adopt gender equality. Arguments made in
favor of the CBQ reflect
reflect some of the gender equality efforts facilitated by free
markets
gender
markets as conveyed
conveyed by the World Bank. Norway
Norway not only sought gender
equality, but it also sought to "strengthen
management
in
"strengthen management
the business sector
185
companies' competitive
Those in favor of the CBQ
ability.,,185
and boost the companies'
competitive ability."
argued
under-representation of women on corporate
corporate boards would
would
argued that the under-representation
186
world economy.
in the
hamper
the world
economy. 186
hamper Norway's position
position in
Bank's
Norway's vision of gender
gender balance
balance moves beyond the World Bank's
corporate inclusion
inclusion
limited gender
gender equality
equality goals. Norway's specific target of corporate
of women
women in their power structure is a broader, more effective
effective solution. One
particular
particular comment by Rittich connects to the other side of the symbiosis. As
the public benefits from the private
private and gender equality from the market, the
market
Bank's
market also benefits from gender equality. As Rittich notes, the World Bank's
"mutually reinforcing"
reinforcing" theses: that "gender
"gender equality is
Report relies on two "mutually
87
88
good
"growth is good for gender equality."
equality."1188
good for growth,"1
growth," 187
and that "growth
Marketdirected
gender
directed efforts like the CBQ will further Norway's
Norway's broader vision of gender
equality and economic development.
development.
IV. EQUALITY
EQUALITY AS A MEANS TO FORTIFY
FORTIFY PRIVATE
PRIVATE ENDS
As gender equality benefits from the private sector's incorporation
incorporation of such
public
public norms, so does the private
private sector benefit from adopting these public
norms. In the recent financial crisis, women,
women, as actors largely excluded from
corporate
corporate management,
management, have been singled out for their potential
potential to save the
financial system. Indeed,
economies
and
corporations
from greater
greater
benefit
Indeed,
corporations
participation
participation of women in management.
management. This Part describes the extent to which
the private
corporations and IFIs
private influences the public by focusing on how corporations
derive legitimacy and economic
economic power by incorporating gender
gender equality
equality norms
norms
into their policy considerations.
This
private
sector-driven
policy
focus
considerations.
sector-driven
Norwegian Ministry of Children and Family
185. Norwegian
Family Affairs, Balanced Gender Representation on
Company Boards, supra
supra note 42.
42.
8.
186. Seim Medill, supra note 58, at 8.
187. Rittich,
"'investing in
in
Rittich, Engendering Development, supra note 27, at 580. This is because
because '''investing
women,'
'positive
women,' especially in the areas of health and education,
education, is likely to generate payoffs or 'positive
externalities'
Id.
economy as a whole."
whole." [d.
externalities' for the well-being
well-being of children, the household, and the economy
188. [d.
Id. The basic argument
development may introduce
argument here is that since economic development
introduce opportunities
opportunities
and incentives that have the result
entrenched economic gender
result of breaking
breaking down entrenched
gender roles, growth will
will
support
equality by generating
(from which women benefit
benefit more than men), providing
providing
support gender
gender equality
generating jobs (from
breakdown of the
incentive to invest in greater training and education of women, and leading to the breakdown
gendered
unpaid work).
gendered labor division within the household (thus resulting in the substitution of paid for unpaid
Id.
[d. at 580-81.
580-81.
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transforms
transforms women's corporate leadership
leadership into an economic
economic imperative. Across
the political spectrum,
spectrum, it is commonly
globalization victimizes
commonly assumed that globalization
victimizes
89
. . 1189
.
190 mail-order
·
trafficking,
prostitution,
190
brides,
women through
through tra
prostitutIOn,
sex tourism,
tourIsm,
mal'1 -order b'd
rI es,
ff!IC k mg,
91
and sweatshop
labor. 191 As international
international trade expands, so do these
sweatshop labor.1
192
phenomena. 192
Gender in international
international economic growth is not solely about victimizing
victimizing
corporate think-tanks,
women. IFIs, corporate
think-tanks, and others have marshaled evidence
evidence
connecting gender
connecting
gender equality
equality to growth, asserting
asserting that the more economic power
women have, the more an economy
economy will grow. This Part addresses the
economic growth arguments
economic
arguments behind the CBQ. As corporations
corporations legitimize
business practices through
through Corporate
Corporate Social Responsibility ("CSR") efforts,
IFIs appear
well-intentioned when enforcing
appear more well-intentioned
enforcing gender equality norms. The
corporations
corporations and IFIs driving the world economy can draw on gender equality
to fortify their profit and development
market-directed efforts benefit
benefit
development goals. As market-directed
gender
gender equality, so may gender equality fortify the market.
189. Prostitution
Prostitution has
swelled because of increased
increased travel and disparities in currency values that
IS9.
has swelled
permit tourists to obtain sexual services for far less than possible in their home countries. See Beneria,
supra
1.
supra note 102,
102, at 80-8
SO-SI.
190. See,
See. e.g.,
e.g., The Children in Gucci Shoes, THE ECONOMIST,
ECONOMIST, Nov. 22 2003. After police raided
brothels in the capital of Phnom Penh, after complaints concerning sex trafficking, pimps moved their
businesses to the smaller town of Krong Koh Kong, which is said to be at the lower end of the sex trade.
Id.
Krong Koh
respectable business is fishing,
fishing, is practically unpoliced, and the porous
Id. Krong
Koh Kong,
Kong, whose respectable
Thai and Vietnamese
Id. The town attracts many sex tourists from aa
Vietnamese borders make things even worse. Id.
wide area because sex there is cheaper than in Phnom Penh, and far cheaper than in neighboring
Thailand. Id. "The
"The girls, some of them children aged only 14 but looking older in their heavy make-up
and
fake Gucci
sandals, charge
of $2
charge the
the equivalent of
and fake
Gucci sandals,
$2 or $3,
$3, half of which goes to their boss. A girl can
make about
week, aa relatively
sum in an area
area of
of widespread
widespread poverty and
and unemployment."
Id.
unemployment." Id.
make
about $25
$25 aa week,
relatively big sum
These traffickers seem to have no trouble finding their young victims, who are often offered as debt
repayment. Id.
Id.
191. See Hussein
Hussein Sadruddin
et al.,
Victim
191.
Sadruddin et
a\., Human Trafficking in the United States: Expanding Victim
STAN. L. &
& POL'y
POL'Y REV. 379, 3S2
382 (2005). See generally
Protection Beyond Prosecution Witnesses, 16 STAN.
JENNIFER GORDON, SUBURBAN
SUBURBAN SWEATSHOPS (2005).
women's
192. See Sadruddin, supra note 191,
191, at 382.
382. On the right, Francis Fukuyama
Fukuyama argues that women's
increased participation
participation in
in the
the labor force gives men the message that because women now work, men
men
increased
can leave
leave their
their families, causing increased numbers of women-headed
can
women-headed households. See FRANCIS
FUKUYAMA,
THE RECONSTITUTION
RECONSTITUTION OF SOCIAL ORDER
FUKUYAMA, THE
THE GREAT
GREAT DISRUPTION:
DISRUPTION: HUMAN
HUMAN NATURE
NATURE AND THE
101-I I (1999).
On the left, aa wide range of women's
101-11
(1999). On
women's activists oppose globalization, asserting that its
primary effect
effect is
is to
worsen the
aforementioned problems.
CHUA, WORLD
ON FIRE:
FIRE:
primary
to worsen
the aforementioned
problems. See generally AMY
AMY CHUA,
WORLD ON
How
MARKET DEMOCRACY
DEMOCRACY BREEDS
HATRED AND GLOBAL
How EXPORTING
EXPORTING FREE
FREE MARKET
BREEDS ETHNIC HATRED
GLOBAL INSTABILITY
(2003). Now,
country and
extended families
families to
support their
families
(2003).
Now, women
women who
who leave
leave their
their home
home country
and extended
to support
their own
own families
MIGRATION, UNITED
SUSAN FORBES
FORBES MARTIN, WOMEN
WOMEN AND MIGRATION,
constitute aa broad sector of migrants. SUSAN
(DAW), CONSULTATIVE
CONSULTATIVE MEETING ON
NATIONS DIVISION
DIVISION FOR THE ADVANCEMENT
ADVANCEMENT OF WOMEN
WOMEN (DAW),
ON
"MIGRATION
AND MOBILITY AND How
MOVEMENT
AFFECTS
WOMEN"
(2003),
"MIGRATION
How THIS MOVEMENT
AFFECTS WOMEN"
(2003),
http://www.un.org/womenwatch/daw/meetings/consu
Linda Bosniak describes
describes
http://www.un.orglwomenwatchldaw/meetingslconsu lt/CM-DecO3-WPI.pdf.
ItlCM-Dec03-WPl.pdf. Linda
the cost
cost to women
women who engage
engage in transnational childcare work as providing aa form of citizenship to the
the
women who
depriving the
the workers
workers of
of their
their own
own citizenship.
citizenship. See BOSNIAK,
THE CITIZEN
CITIZEN
women
who employ
employ them
them by
by depriving
BOSNIAK, THE
AND THE
THE ALIEN,
176. Women
who hire
workers acquire
"citizenship"
AND
ALIEN, supra note
note 176.
Women who
hire childcare
childcare workers
acquire their
their "citizenship"
(meaning economic and thus political status) through hiring women of lower economic status who, at
at
(meaning
least
give up
up their
their national
national identity
identity to
come to
the United
United States
States for
Id.
least temporarily,
temporarily, give
to come
to the
for this
this work.
work. Id.
88
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Feminizing
Corporate Imperative
Feminizing Capital:
Capital: A Corporate
Imperative
Legitimization ofPrivate
Sector Goals
Goals through
through Gender
Gender Equality
Equality
A. The Legitimization
Private Sector
International Financial Institutions
Institutions and multinational corporations
corporations pursue
gender
legitimize IFIs by
gender equality out of self-interest. Gender equality efforts legitimize
widely-accepted social purpose. Although IFIs'
IFIs' support for
linking them to a widely-accepted
gender
play a role, such norms may be weak if set against
gender equality
equality policies may playa
against
93
market
forces.1193
Rittich examined
examined IFIs'
managing the "incorporation
of
market forces.
IFIs' role in managing
"incorporation of
social justice and greater participation
participation in the development
development agenda,"
agenda," as well as
governmental agendas as a whole affect
of
the ways in which governmental
affect the process of
94
1
.
.
I
b'
.
194
objectives.
social
pursuing
pursumg socia 0 ~echves.
International economic
economic reforms developed in two generations.
generations. The first
markets and protect
protect
generation focused on neo-liberal reforms to open markets
195
investments for multinational corporations
corporations and IFIs.
IFIs.195 The second-generation
second-generation
196
reforms moved beyond
beyond those efforts to achieve social objectives. 196 Non-state
actors receive a newly-important
newly-important role in generating
generating norms with respect to a
197
broad range of social
social issues beyond just gender. 197
To emphasize marketcentered types of social equality and inclusion,
inclusion, social justice is framed in
99
98
yield economic
that yield
changes that
those changes
with a focus on those
market terms,
terms,198
economic results.
results. 1
199
"[B]y articulating
articulating their relationship to economic
"[B]y
economic growth and managing the
effectively ranking and
processes by which they are incorporated, the IFIs are effectively
alternatively
ordering the importance
importance of different social objectives
objectives and alternatively
legitimizing and de-legitimizing
de-legitimizing the means and strategies
strategies by which they can be
2 °°
pursued. ,,200
IFIs and multinational
of
IFls
multinational corporations benefit from the incorporation of
maintaining
gender equality norms from the public sector into their purpose of maintaining
the status quo. France's
France's Parity Law demonstrates a parallel effort
effort in the context
context
of political representation. An all male legislature enacted
enacted the Parity Law,
which requires
requires half of all candidates
candidates for public office in France to be
2201
01
Economists
women.
Economists studying
studying this law found that the male legislators acted
193. Rittich,
193.
Rittich, Engendering Development, supra note 28, at 586-87.
Future of Law and Development, supra note 24, at 200. The World
194. Rittich,
Rittich, The Future
World Bank's
Bank's
Comprehensive Development Framework,
Framework, for example, identifies
identifies two different sides to the
"development agenda":
"macroeconomic and financial aspects
economic growth," and the
"development
agenda": the "macroeconomic
aspects of economic
"'social, structural,
and human'
the latter
latter can
"'social,
structural, and
human' dimensions";
dimensions"; the
can include
include issues like education, health, gender
equality, good governance,
governance, human rights, and the rule of law. Id.
Id. The CDF also suggests that the
is
development process should be maintained by the people; to impose a "one
"one size fits all agenda that is
orchestrated and imposed from above,
country-ownership of
orchestrated
above, second generation
generation reforms propose greater country-ownership
of
the reform process and a development agenda
agenda that is generated in a more
more inclusive and participatory
way." Id.
way."/d.
201.
195. Id.
Id. at 20
I.
196. Id.
Id. at 205.
Id.
197. Id.
198. Rittich, The Future
Future of Law and Development, supra note 24, at 243.
199. Id.
/d.
200. Id.
Id.
201. Guillaume R. Fr~chette,
201.
Frechette, Francois Maniquet &
& Massimo
Massimo Morelli,
Morelli, Incumbents'
Incumbents' Interests
Interests and
89
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Berkeley Business
Business Law
Law Journal
Journal
Berkeley
Vol.
Vol. 6.1,
6.1, 2009
2009
2
in order
order to
to preserve
preserve their
their own
own incumbency.
incumbency.202
Since female
female candidates
candidates prove
prove
2
Since
in
of female
female competitors
competitors
less popular
popular than
than male
male candidates,
candidates, aa higher
higher percentage
percentage of
less
20 3
of men
men maintaining
maintaining their
their political
political hegemony.
hegemony. 203
increases the
the likelihood
likelihood of
increases
Legislation requiring
requiring women's
women's participation
participation in managing
managing corporations
corporations
Legislation
4
2204
a corporate
men
on
term,
near
In
the
0
fashion.
in
a
similar
fashion.
In
the
near
term,
men
corporate
could
function
a
similar
in
could
board would
would benefit
benefit from having
having other
other board
board members
members with
with less
less experience.
experience.
board
Board members
members with
with more
more experience
experience could
could manipulate
manipulate those
those with
with less
less
Board
management. In addition,
addition, a broader
broader vision
vision
experience to
to achieve
achieve their
their vision
vision of management.
experience
self-interest supports
supports the
the idea that
that men benefit
benefit from
from aa quota
quota that protects
protects
of self-interest
in the
the management
management of
of corporations,
corporations, albeit at
at aa lower level.
level.
their role in
Corporations follow
follow this reasoning,
reasoning, by
by integrating
integrating gender
gender issues into
into Corporate
Corporate
Corporations
05
Finally,
Finally, because
because much
much of
of women's
women's work
work is
Social Responsibility
Responsibility programs.
programs. 220S
Social
volunteer work
work or work in the
the home, for the
the public
public economy
economy women constitute
constitute
volunteer
untapped potential
potential resource.
an untapped
Benefit Analysis-Why Gender
Gender Equality
Equality is "Goodfor
for
B. Efficiency and Cost Benefit
Growth"
Growth"
economic
The rhetoric of the connection
connection between
between gender
gender equality
equality and economic
corporate
prominently in the evaluation
growth figures prominently
evaluation of the role
role of women
women on corporate
language used by Norway's Ministry
Ministry of
of
boards and in the economy. The language
references this connection,
connection,
Children and Family Affairs to promote the CBQ references
sexes,"
"equality between the sexes,"
stating that the legislation will not only lead to "equality
but also to "the
society." 20 6 As discussed in greater detail
"the creation of wealth in society.,,206
at
available
(2008),
SCI.
J.
4
AM.
Quotas,
AM.
J.
POL.
SCI.
891
at
Gender
http://homepages.nyu.edul-gf35/printlFrechette_2008b.pdf.
http://homepages.nyu.edu/-gf35/print/Frechette_-2008b.pdf.
Id.
202. [d.
Gender
Id. Additional comparison between
203. [d.
between the CBQ and Parity appears
appears in Rosenblum, Loving Gender
Balance, supra note 13.
204. It is worth noting that the Parity Law regulates candidates for political office whereas the CBQ
intervention.
legislates corporate board positions themselves, stepping to another level of intervention.
& Jeremy Moon, Gender Mainstreaming and Corporate Social Responsibility,
205. Kate Grosser &
analyzing
gender equality and analyzing
(investigating the contribution of CSR to gender
62 J. OF
OF Bus. ETHICS 4 (2005) (investigating
Robert J. Williams,
also Robert
CSR agenda).
agenda). See also
compatible with the CSR
mainstreaming is compatible
gender mainstreaming
whether
whether gender
Bus.
42 J.
J. Bus.
Their Influence on Corporate Philanthropy, 42
Boards of Directors and Their
Corporate Boards
Women on Corporate
Women
their
finding that those Fortune 500 companies with women on their
ETHICS
(2003) (analyzing a study finding
ETHICS II (2003)
U.S.
Roles on U.S.
Women's Roles
Philpot, Women's
& James Philpot,
Craig A. Peterson &
boards engaged in more charitable giving); Craig
(2006)
& Committee
Committee Memberships, 72 J. Bus. ETHICS 2 (2006)
Fortune 500 Boards, Director Expertise &
men are
are
for female and male directors and finding that men
(examining the trends in
appointments for
in committee
committee appointments
affairs
on public
public affairs
serve on
more likely
likely to serve
are more
to serve
serve on executive committees while women are
more likely to
the Few,
of the
Board Directors:
Directors: Characteristics of
Phyllis Tharenou, Women Board
committees); Zena Burgess && Phyllis
R.
corporate boards); John R.
gender diversity
diversity on corporate
discussion of gender
2002) (general discussion
J. Bus.
BuS. ETHICS I1 (Apr. 2002)
37 J.
(2001)
PROF. ETHICS J.J. Nos. 3 & 44 (2001)
20 Bus.
BuS. && PROF.
Responsibility, 20
Corporate Social Responsibility,
Boatright, The Future of Corporate
Boatright,
of women to corporate
and the
the appointment of
social responsibility and
of corporate
corporate social
the future of
(discussing the
the Corporate Boardroom, 79 ST.
Gender in the
Considering Race and Gender
boards); Janis
Class Act: Considering
Janis Sarra,
Sarra, Class
actions to
to correct lack of board diversity);
(discussing shareholder actions
1160 (2005)
(2005) (discussing
1121, 1160
L. REV. 1121,
JOHN'S L.
Bottom
Way up
up From
From the Bottom
our Way
Time to Find
Find our
Law: It's Time
Corporate Law:
Feminist Thought && Corporate
Cohen, Feminist
Ronnie Cohen,
Ronnie
(1994).
L. I1(1994).
U. 1.J. GENDER
GENDER && L.
(Line), 22 AM. U.
(Line),
Company
of Both
Both Sexes on Company
Representation of
Equality, Representation
Children and Equality,
Norwegian Ministry of Children
206. Norwegian
206.
90
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Imperative
Feminizing Capital: A Corporate
Corporate Imperative
below, several sources have produced data supporting
supporting this understanding.
understanding. This
This
economic architecture
data bolsters a reconfigured
reconfigured international
international economic
architecture that uses
gender equality to promote the fair
treatment of women and to further a vision
20 7
face. 207
human face.
of capital
capital as having aa human
Profits, the goal of the corporate
corporate sector, benefit from including women in
corporate boards and senior
senior corporate management. 208
208 Gender diversity's
diversity's
corporate culture will generate
offering of new ideas and a more responsive corporate
9
0
Several
compared the financial success of
greater profits. 2209
Several studies have compared
of
corporations with mixed-sex
corporations with all-male boards. The
corporations
mixed-sex boards to corporations
Female FTSE Report 2004
2004 analyzed
analyzed the gender diversity of British corporate
210
boards and found a correlation
correlation with positive business results. 21
0 The
corporations with women on their boards yielded higher profits
corporations
profits than those
21
To measure
measure the corporations'
corporations' financial success, the Report
without. 211
212
examined each corporation's
corporation's ROE.
ROE. 212
Corporations
examined
Corporations with mixed-sex
mixed-sex boards had
an average
average ROE almost four percent higher than those with all-male boards
21
(13.8% versus 9.9%).213
9.9%). 3 Although the study does not prove that gender
gender
(13.8%
demonstrates a correlation.
diversity causes higher ROEs, it demonstrates
Beyond the board, gender diversity in management
management also correlates with
higher ROEs. An American
Management
Association
American Management Association study found that firms
reporting a diverse management
management team had better overall financial
Investment Management
Management survey
survey of the
performance. 214 Similarly, a Covenant Investment
Standard
corporations confirmed
Standard and Poor's 500 corporations
confirmed this finding, reporting
reporting that
corporations with diverse
management had over ten percent higher ROEs
corporations
diverse management
ROEs than
Boards, supra note 40.
207. See, e.g.,
"New" Corporate Governance:
e.g., Lisa
Lisa M. Fairfax,
Fairfax, Women and the "New"
Governance: Clogs in the
Pipeline: The Mixed Data on Womell
Women Directors and Continued Barriers to Their Advancement,
Advancement, 65 MD.
L. REV.
REV. 579 (2006)
(2006) (discussing
(discussing a Fortune 100 study on women directors and finding that there
there are still
significant barriers to women
women achieving these positions and the positive impact that women have on the
board's conduct). See also Marleen A. O'Connor, The Enron
of Groupthink, 71 U.
Enron Board: The Perils o/Grollpthink,
U.
L. REV. 1233 (2003);
of Shareholders
CIN. L.
(2003); Lynne L. Dallas, Does Corporate
Corporate law Protect the Interests 0/
of Directors, 76
76
and Other Stakeholders?: The New Managerialism
Managerialism and Diversity on Corporate Boards
Boards 0/
TUL. L.
L. REV.
REV. 1363,
1363, 1403-05
1403-05 (2002)
(noting that diversity counters isolated focus on stock price); Steven
(2002) (noting
TuL.
J.L. Bus. & FIN. 85, 109-10
109-10 (2000) (discussing
A. Ramirez, Diversity and the Boardroom, 6 STAN. lL.
rationales for diversity on boards); Janis Sarra, The Gender
of Corporate
Gender Implications
Implications 0/
Corporate Governance
J. SOC.
(2002) (discussing that diversity enhances corporate
SOC. JUST. 457, 494 (2002)
Change, I SEATTLE J.
governance).
141, at 642-45.
208. Nicholson, supra note 141,
Id.
209. Id.
210. SUSAN
VINNICOMBE ET AL., THE FEMALE
FEMALE FTSE
210.
SUSAN VINNICOMBE
FTSE REPORT
REPORT 2004, CENTER
CENTER FOR DEVELOPING
DEVELOPING
WOMEN BUSINESS
WOMEN
BUSINESS LEADERS,
LEADERS, CRANFIELD
CRANFIELD SCHOOL
SCHOOL OF
OF MANAGEMENT
MANAGEMENT I (2004),
(2004), available at
at
http://www.som.cranfield.ac.uk/som/research/centres/cdwbl/downloads/FT2004FinalReport.pdf.
http://www.som.cranfield.ac.uklsomlresearchlcentres/cdwblldownloads/FT2004FinaIReport.pdf.
211.I. Id.
Id. The
The Report
indicators to
to measure the level of corporate
21
Report used thirteen indicators
corporate governance that each
corporation possessed.
possessed. Id.
Id. The
The report
report assigned
assigned one
successful compliance with each indicator,
one point for successful
corporation
so a
of thirteen
thirteen was
was the
the highest. Id.
Id. The average score for companies
companies with women directors was a
a
so
a score of
10.8, whereas companies
of 9. 1. Id.
companies with all-male directors had an average score of9.1.
Id.
Id.
212. Id.
213. Id.
Id.
Id. Sixty-nine boards
boards had women on their boards; thirty-one did not. Id.
214. Id.
{d.
91
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Berkeley
Berkeley Business Law Journal
Vol. 6.1,2009
6.1, 2009
firms that lack diversity
(18.3% versus 7.9%).215 The Female FTSE Report
finns
diversity (18.3%
2004 also confinns
confirms these findings, reporting that companies
companies with women on the
board
13.8%, compared
three-year ROE of 13.8%,
compared to all-male
all-male boards,
board had an average three-year
216
which had an average ROE of 9.9% for the same
same period. 216 The evidence
participation in corporate boards leads to a greater
shows that women's participation
greater return
2177
21
for both the company
and
its
investors.
These
statistics
reflect
a correlation,
correlation,
company
necessarily any causality. In many cases, it might be a coincidence
coincidence that
but not necessarily
industries may
higher ROE exists when more women sit on the board. Certain 218
of their
their nature.
nature. 218
be more diverse and have
have aa higher
higher ROEs
ROEs because
because of
A more recent study confinns
confirms these findings. Using data from top French
publicly-traded corporations,
corporations, Michel shows that 2008 stock market
publicly-traded
performance correlates
corporate management.
perfonnance
correlates to the number
number of women in corporate
Corporations with fewer women experienced
experienced a greater drop in share price than
corporations with more women
corporations
women in management. He concludes that
"feminization of management seems to be a protection
protection against financial crisis.
"feminization
Currently, financial
markets
firms that took less risk and are doing more
markets value finns
219
stable business."
business. ,,219
of
At the national level, studies
studies show that countries
countries with higher levels of
220
220
women's representation
have
higher
GDP
growth
rates.
In
addition
to
the
representation
GOP
direct economic benefits, diversity improves profits in an indirect fashion as
2 Corporations lacking gender diversity
well.2221
'
lacking gender
can lose new recruits to
215. Id.
Id.
Id.
216. Id.
217. It is worth noting that women board members
members may obtain their position through relationships
with powerful
LVMH,
powerful men. For example, the only woman on the board of L
VMH, the French conglomerate,
conglomerate, is
the daughter of the Chief
Chief Executive Officer, Bernard Amault.
Arnault. See Ten Women to Watch in Europe,
Europe. the
Middle
East
and
Africa,
WALL
ST.
J.,
Nov.
10,
2008,
available
at
J.,
at
http://online.wsj.com/article/SB122629166790613063.html. This reflects a commonplace
phenomenon
http://online.wsj.com/article/SBI22629166790613063.htmI.This
commonplace phenomenon
in the empowerment
empowerment of women in previously male sectors of society. In India, for instance, women
taking
taking on leadership roles in village councils often are relatives of men who previously held such
positions. Raghabendra Chattopadhyay & Esther Duflo, Women as Policy Makers: Evidence From
positions.
From a
ECONOMETRICA 1409 (2004), available at http://econRandomized Policy Experiment
Experiment in India, 72 ECONOMETRICA
http://econwww.mit.edu/faculty/downloadpdf.php?id=437.
www.mit.edulfaculty/download_pdf.php?id=437.
218. For example,
example, LVMH
LVMH has an ROE of 18.73%, a relatively high ROE,
ROE, and has one woman on
the Board, but it is in a more creative sector of the economy than other corporations.
corporations. Michel Ferrary,
Ferrary,
FINANCIAL TIMES,
Why Women Managers Shine in aa Downturn,
Downturn, FINANCIAL
TIMES, Mar. 2, 2009.
219. Of
crisis. Since January, its stock only
219.
Of French
French banks, BNP-Paribas
BNP-Paribas has best resisted the crisis.
decreased by 20%; 38.7%
38.7% of its managers are women. By comparison, Credit
Credit Agricole's
Agricole's stock
50% and only 16%
16% of its managers
decreased by 50%
managers are women. Firms with a highly feminized
management like
(56% female
female managers),
managers), Sanofi
management
like LVMH
LVMH (56%
Sanofi (44.8%)
(44.8%) have gone
gone down
down less than the
CAC40. While stocks of more male-managed
male-managed firms like Alcatel-Lucent
(8.68% women),
Alcatel-Lucent (8.68%
women), Renault
(21.77% women) have fallen more
"Several gender
(21.77%
more than the CAC40.
CAC40. "Several
gender studies have pointed out that
women behave
behave and
and manage
manage in a different way than
than men.
men. They tend to
to avoid
avoid risk and to focus more on a
women
behaviour of
of
long term
term perspective. A larger proportion
proportion of female managers balances the risk taking behaviour
their male
CERAM School
School of
of Business, Global Financial Crisis: Are Women the Antidote?
their
male colleagues."
colleagues." CERAM
CERAM Research,
CERAM
Research, http://www.ceram.edu/index.php/Latest-News/Latest/FinancaiI-Crisis-Are-Womenhttp://www.ceram.edulindex.php/Latest-NewsiLatestiFinancail-Crisis-Are-Womenthe-Antidote-CERAM-Research.html (last
See also
also Ferrary,
Ferrary, supra note 218.
the-Antidote-CERAM-Research.html
(last visited Nov.
Nov. 6,
6, 2009). See
220.
Inglehart et
et aI.,
al., Gender
Gender Equality
Soc. 321 (2002).
220. See
See Ronald
Ronald Inglehart
Equality and Democracy, I COMP.
COMPo SOC.
(2002).
221. Nicholson
Nicholson also
also addresses
221.
addresses the
the corporation's
corporation's costs
costs associated with
with the
the failure
failure to retain the
92
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Feminizing Capital: A Corporate Imperative
Feminizing
Imperative
competitors. 222 Perceptions
in
Perceptions of a lack of diversity
diversity could result in difficulties 223
practices.
hiring
unfair
for
litigation
to
rise
give
even
to litigation for unfair hiring practices. 223
recruiting or could
224
Conversely, the presence
Conversely,
presence of diversity programs
programs can have a positive impact.224
Extensive law and economics analyses have examined
examined the benefits
benefits of these
policies. These arguments, centering on statistical analyses of corporate profits
management theories,
and management
theories, reflect the important role that gender equality
legitimizing capital.
presently plays in legitimizing
V.
CONCLUSION-GENDER
SYMBIOSIS
CONCLUSION-GENDER BALANCE AND THE PUBLIC-PRIVATE
PUBLIC-PRIVATE SYMBIOSIS
happened to the dreams
of a girl
What happened
dreams oj
girl president?
president?
dancing in the video next to 50 Cent
She's dancing
- Pink, "Stupid
"Stupid Girls"
Girls"
People, women included, are less comfortable
comfortable with women in leadership
leadership
positions. We reflexively see women as more likely to play backup
backup dancer than
than
President
political and
President or Chief Executive Officer. The rarity of women's political
economic
economic leadership has substantial
substantial costs. It fosters an environment
environment in which
which
women's
leadership
is
not
only
but
a
source
of
derision
rare,
and
sexist
humor.
women's
It arises out of a presumption that leadership must be gendered
gendered masculine,
excluding
excluding those whose
whose gender expression is not male. Indeed, recent studies
indicate that the wage gap between men and women is really a gap between
between
non-egalitarian
non-egalitarian minded men and everyone
everyone else, in which men who believe
believe in
traditional
$8549 more than men who believed in a more
traditional roles for women made $8549
egalitarian
egalitarian role for women, and that women who believed
believed in a more egalitarian
role made
made more than women who believe
believe in traditional gender roles. This study
suggests
gendered constructions
constructions of power carry more weight than
suggests that gendered
225
biological
biological sex. 25
Such attitudes proliferate
proliferate by virtue of the liberal presumption
that individuals
individuals make leadership choices in a vacuum free of discriminatory
diverse workforce. Nicholson, supra note 141,
141, at 644. When
When an in-house lawyer leaves, or an associate
at the corporation's outside firm
finn leaves, the corporation will bear significant expenses to find aa
replacement. Id.
[d. In addition to the costs of recruiting aa new attorney, the loss causes aa lack of
of
productivity in
in the
the remaining
remaining attorneys
attorneys and
and an
an infonnation
information vacuum because the departing attorney takes
productivity
with her
her some
some infonnation
information and
firm. Id.
[d. Nicholson argues that
that
with
and knowledge
knowledge that cannot be translated to the finn.
the economic
economic losses continue even when a
experience,
a new attorney is hired because of her lack of experience,
different learning curve, and the risk that some knowledge can be lost forever because one person is not
not
a
Id.
a complete replacement for another. ld.
Id. at 643.
222. [d.
Id.
223. [d.
Id. at 645.
645. Nicholson argues that the presence of diversity programs conveys a
224. [d.
a perception
perception to
the public that the corporation sees value in its employees. Id.
[d. Nicholson sees this attitude manifested in
"Fortune's 100
Id.
aa corporation's desire to achieve accolades such as "Fortune's
100 Best Companies
Companies to Work For."
For." [d.
Institutional investors
begin to
that their
target investment corporations achieve those
Institutional
investors then
then begin
to demand
demand that
their target
listings, thus
thus driving
the corporation
corporation to
to pursue
diversity to
to boost
their attractiveness
investors. Id.
listings,
driving the
pursue diversity
boost their
attractiveness to
to investors.
ld.
225. Timothy
Beth A.
Livingston, [s
Is the Gap More Than Gender: A
Longitudinal
225.
Timothy A.
A. Judge
Judge & Beth
A. Livingston,
A Longitudinal
Analysis
93 1.
J. APPLIED
(2008),
Analysis of
of Gender,
Gender. Gender Role Orientation,
Orientation. and Earnings, 93
ApPLIED PSYCH.
PSYCH. 994 (2008),
available at http://www.apa.org/journals/releases/apl935994.pdf.
http://www.apa.orgljoumalslreleases/apI935994.pdf.
93
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Berkeley Business
Business Law
Law Journal
Journal
Berkeley
Vol.
Vol. 6.1,
6.1, 2009
2009
attitudes.
attitudes.
They do
do not.
not. Entrenched
Entrenched gender
gender hierarchies
hierarchies continue
continue to
to reduce
reduce half
half our
our
They
population to
to aa small
smalJ minority
minority of
of leaders
leaders in
in both
both government
government and
and industry.
industry.
population
Countries, like
like international
international financial
financial institutions,
institutions, benefit
benefit from
from fostering
fostering and
and
Countries,
managing
managing gender
gender equality.
equality. Sonia
Sonia Alvarez
Alvarez argues
argues that
that the global
global gender
gender agenda
agenda
226
Similarly, private-oriented
private-oriented
"disciplines and
and enables"
enables" feminist
feminist goals.
goals. 226 Similarly,
both "disciplines
efforts
efforts enable
enable gender
gender equality,
equality, as
as discussed
discussed in
in Part
Part Three,
Three, and
and they discipline
discipline
them
them by steering
steering gender
gender equality
equality movements
movements toward
toward market-oriented
market-oriented goals.
goals.
Many countries
countries have attempted
attempted to rectify this inequity
inequity by adopting
adopting quotas
Many
political representation.
representation. Until
Until the current
current economic
economic crisis,
crisis, the "public"
"public"
for political
world
world has been
been shrinking.
shrinking. Despite
Despite recent
recent reversals,
reversals, the world
world in which
which policypolicymakers, activists
activists and scholars
scholars pursue
pursue remedies
remedies for gender
gender and
and race
race inequities
inequities is
makers,
aa vastly different one from that which greeted the
the incipient
incipient civil
civil rights
rights and
and
movements decades
decades ago. Public
Public functions have
have been increasingly
increasingly
feminist movements
privatized
privatized and transnational
transnational corporations
corporations have come to wield more power
power than
than
nation-states.
most nation-states.
Here,
Here, Norway's
Norway's adoption
adoption of the
the CBQ reflects the
the symbiosis
symbiosis between
between the
acknowledges the private's
public and the private.
private. Norway acknowledges
private'S critical
critical and
increasingly central role in society. In adopting the CBQ, it pursues
pursues the
increasingly
integration
integration of the public norm of gender balance
balance into private
private goals of capital
accumulation. Exclusively
Exclusively public attempts to repair gender
gender inequity will
wilJ not
accumulation.
argued
Fudge
have
and
Judy
Cossman
Brenda
society.
in
transforming
succeed
succeed
Brenda
argued
"lost its privileged status as
that through the process of privatization,
privatization, the State "lost
' 227 This reduced
reduced
analysis.,,227
the central unit of political, economic, and cultural analysis.
"Privatization
role played by the state has hampered gender equality
equality efforts. "Privatization
228
theory and
feminist theory
to feminist
challenge to
presents a formidable chalJenge
and practice.
practice.,,228
presents
Outsourcing equality from the state to the market leaves weaker parties at the
will forsake fairness for profits.
mercy of forces that wilJ
partnerships
crisis has aroused a renewed interest in partnerships
financial
The current
enterprise recognizes the need
between the public and private sectors. Private enterprise
for legal regimes to organize economic structures. Norway's CBQ presaged
symbiotic
public/private dichotomy. The CBQ reflects a symbiotic
this blurring of the public/private
acquire
their
norms
in
which
public
private,
the
public
and
relationship between
sector, at the same time that private goals inform
force through the private sector,
public norms. Gender equality benefits the private, as corporations with greater
show higher returns. Feminizing capital does
levels of women's representation show
gain power from feminization.
emasculation. Rather, capital will gain
require its emasculation.
not require
with
file with
(2007) (manuscript on file
The Global Gender Agenda (2007)
generally Sonia Alvarez, The
226. See generally
226.
author).
author).
& Judy
Judy
(Brenda Cossman
Cossman &
403-20 (Brenda
TO FEMINISM
FEMINISM 403-20
THE CHALLENGE
CHALLENGE TO
PRIVATIZATION, LAW AND THE
227. PRIVATIZATION,
227.
Fudge eds.,
eds., 2002).
2002).
Fudge
228. [d.
Id. at 404.
404.
228.
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Feminizing Capital: A Corporate
Corporate Imperative
Feminizing
Imperative
Feminizing
Feminizing capital teaches a broader lesson: a public/private symbiosis
offers more effective
effective solutions to problems
problems of inequality, allowing public
norms to inform the private. The growing concern over corporate gender
"public values"
values" in informing
quality reveals the increased
increased normative role of "public
informing
"private
actions."
This
fluidity
of
ideas
from
the
public
to
the
private
"private actions." This fluidity of ideas from the public
demonstrates the tenuousness
demonstrates
tenuousness of the lines that divide these arenas. The
public/private symbiosis
symbiosis goes beyond gender. Merging
Merging the strengths of the
public/private
public and private sectors only serves to bolster gender, race, and class equality
endeavors
endeavors within each sphere. The CBQ marks a new direction in realizing
realizing this
symbiosis.
95
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