California SB 826, which requires a woman to serve on every board of directors, was found to be unconstitutionally discriminatory


The Stanley Mosk Courthouse of Los Angeles Superior Court

A Los Angeles judge ruled Friday that California’s 2018 law requiring women to serve on all corporate boards violates the California state constitution. Supreme Court Judge Maureen Duffy Lewis struck down the law on the grounds that it violated the equal protections clause of the California constitution.

Conservative advocacy group Judicial Watch put forward that underlying legal challenge violated California law, alleging that the state illegally used taxpayers’ money to enforce a law that violates the California Constitution’s equal protections clause by imposing a gender quota.

The law in question is that of California Senate Act No. 826enacted by the then governor Jerry Brown (D) in 2018. Then Brown called that California passed the law against the backdrop of the #MeToo era — and that some companies “don’t get the message.”

The lawsuit quoted Brown as admitting that “serious legal concerns” had been raised about the legislation.

“I’m not minimizing the potential bugs that could actually prove fatal to its eventual implementation,” Brown said at the time, according to the lawsuit.

SB 826 requires that by 2021 all California-based corporations “must have at least one woman, as defined, on their board of directors.” The minimum number of women on the board would increase to two if the company has five directors and three if the company has six or more directors. The law also states that “female” for its purposes means a person who self-identifies her gender as a woman, regardless of the person’s sex as determined at birth.”

The Act authorized the Secretary of State to impose fines and penalties for violations, including a fine of up to $100,000 for failure to report the composition of the Board of Directors and up to $300,000 for multiple failures to report the required number of female board members.

The plaintiffs challenged the law, alleging that it violated California’s guarantee of equal protection under the law. Like the challenges of equal protection under the US Constitution, the challenges of gender classification under California law are analyzed with increased scrutiny. To pass the scrutiny, such legislation must be closely tailored to a compelling government interest.

SB 826 – like many legislative efforts to promote diversity and inclusion – faced court exposure for lack of targeted remedies. In general, laws that are supposed to stand up to closer scrutiny are only those that have been precisely designed to eliminate a specific history of discrimination.

Judge Duffy Lewis noticed in their decision that “the primary purpose of the legislature was gender equality, not the elimination of discrimination,” and that California failed to provide sufficient evidence that its statute constituted an appeal against specific discrimination against women on corporate boards.

Friday’s verdict against SB 826 was not entirely unexpected. In April 2022, Judicial Watch a to win in a companion case involving the same parties over a similar California law that required companies to have a board member from an “underrepresented community” including LGBT, Black, Latino, Asian, Native American or Pacific Islander. In April verdict, Judge of the Superior Court Terry Green wrote: “Only in very special cases should discrimination be remedied by more discrimination.”

Judge Maureen Duffy-Lewis is a former Assistant District Attorney and an Elected Judge of the Los Angeles Superior Court since 1987.

“The court gutted California’s unconstitutional gender quota mandate,” said the Judicial Watch president Tom Fitton said in a statement. “This is the second decision by a California court finding that quotas for corporate directors are unconstitutional.”

A representative of California’s Secretary of State did not respond to Law&Crime’s request for comment.

Read the verdict below:

[screengrab via YouTube]

Do you have a tip we should know? [email protected] California SB 826, which requires a woman to serve on every board of directors, was found to be unconstitutionally discriminatory

James Brien

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