Article | Anti-Discrimination Law
A Glimmer of Hope for California’s “Well-Intentioned” Attempt to Put More Women in the Boardroom
by Jacqueline Concilla*
From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 603 (2020)
Keywords: Senate Bill 826, Equal Protection Doctrine
This Note necessarily hones in on the intersection between the principles underlying discrimination on the basis of gender and those animating the racial affirmative action cases. Part I of this Note explores the development of the Court’s equal protection doctrine, especially as it pertains to gender classifications. It then turns to the development of intermediate scrutiny as the standard of review for gender distinctions. Next, it examines how the Court has applied the equal protection doctrine in cases involving quotas and affirmative action programs designed to increase diversity, and how an anomaly has arisen between its treatment of race and gender. Finally, it introduces SB 826, California’s attempt at mandating gender diversity in the corporate boardroom. Part II of this Note then argues that the race/gender anomaly has left a narrow path for SB 826 to prevail against an equal protection claim, even within the Court’s current equal protection doctrine. Specifically, a colorable case exists that SB 826 will survive intermediate scrutiny because remedying past discrimination and dismantling gender stereotypes are important government interests to which the Act is substantially related. Finally, Part III concludes that although its success is unlikely given the makeup of the Supreme Court in 2020, SB 826 advances the goals of the Equal Protection Clause and that the Court would not have to alter its existing framework to uphold it.
*. J.D. Candidate, University of Southern California Gould School of Law, 2020. Many thanks to Professor Sam Erman for his guidance in developing this piece. Thank you to the entire Southern California Law Review team for their invaluable editing and insights, particularly Alix Lotty and Jason Rooindej. This Note would not have been possible without you. Finally, my deepest gratitude to my family for their unconditional support.