Existing law establishes various boards and commissions within state government. Under existing law, it is the policy of the State of California that the composition of these state boards and commissions broadly reflect the general public, including ethnic minorities and women. Under existing law, the Governor and other appointing authorities are responsible for nominating to these boards and commissions persons of different backgrounds, abilities, interests, and opinions.

This bill, on and after January 1, 2024, would require the composition of each appointed state board and commission to have a specified minimum number of women board members or commissioners based on the total number of board members or commissioners on that board. The bill would also require the office of the Governor to collect and release, annually, at a minimum, aggregated demographic data provided by state board and commission applicants, nominees, and appointees.

Existing law establishes various boards and commissions within state government. Under existing law, it is the policy of the State of California that the composition of these state boards and commissions broadly reflect the general public, including ethnic minorities and women. Under existing law, the Governor and other appointing authorities are responsible for nominating to these boards and commissions persons of different backgrounds, abilities, interests, and opinions.

This bill bill, on and after January 1, 2024, would require the composition of each appointed state board and commission to have a specified minimum number of women board members or commissioners based on the total number of board members or commissioners on that board. The bill would also require the office of the Governor to collect and release release, annually, at a minimum, aggregated demographic data provided by state board and commission applicants, nominees, and appointees.

Existing law establishes various boards and commissions within state government. Under existing law, it is the policy of the State of California that the composition of these state boards and commissions broadly reflect the general public, including ethnic minorities and women. Under existing law, the Governor and other appointing authorities are responsible for nominating to these boards and commissions persons of different backgrounds, abilities, interests, and opinions.

This bill would require the composition of each appointed state board and commission to have a specified minimum number of women board members or commissioners based on the total number of board members or commissioners on that board. The bill would also require the office of the Governor to collect and release aggregated demographic data provided by state board and commission applicants, nominees, and appointees.

Existing law establishes various boards and commissions within state government. Under existing law, it is the policy of the State of California that the composition of these state boards and commissions broadly reflect the general public, including ethnic minorities and women. Under existing law, the Governor and other appointing authorities are responsible for nominating to these boards and commissions persons of different backgrounds, abilities, interests, and opinions.

This bill would require the composition of each appointed state board and commission to have a specified minimum number of women directors board members or commissioners based on the total number of board or commission members. members or commissioners on that board. The bill would also require the office of the Governor to collect and release aggregated demographic data provided by state board and commission applicants, nominees, and appointees.

Existing law establishes various boards and commissions within state government. Under existing law, it is the policy of the State of California that the composition of these state boards and commissions broadly reflect the general public, including ethnic minorities and women. Under existing law, the Governor and other appointing authorities are responsible for nominating to these boards and commissions persons of different backgrounds, abilities, interests, and opinions.

This bill would require the composition of each appointed state boards board and commissions commission to be comprised of, at a minimum, 50% women. have a specified number of women directors based on the number of board or commission members. The bill would also require the Secretary of State to disclose on its Internet Web site the gender composition of each state board and commission. office of the Governor to collect and release aggregated demographic data provided by state board and commission applicants, nominees, and appointees.

Existing law establishes various boards and commissions within state government. Under existing law, it is the policy of the State of California that the composition of these state boards and commissions broadly reflect the general public, including ethnic minorities and women. Under existing law, the Governor and other appointing authorities are responsible for nominating to these boards and commissions persons of different backgrounds, abilities, interests, and opinions.

This bill would require the composition of state boards and commissions to be comprised of, at a minimum, 50% women. The bill would also require the Secretary of State to disclose on its Internet Web site the gender composition of each state board and commission.

Date of Hearing: August 8, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 984

Author:(Skinner) – As Amended Ver:July 3, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the composition of each appointed state board and commission to have a specified number of women directors and requires the office of the governor to collect and release aggregated demographic data provided by state board and commission applicants, nominees, and appointees. Specifically, this bill:

1. Mandates, beginning on and after January 1, 2024, the composition of each appointed state board and commission comply with the following:
   1. If the number of board members or commissioners is five or more, the board or commission must have a minimum of 40% women board members or commissioners.
   2. If the number of board members or commissioners is four or fewer, the board or commission must have a minimum of one woman board member or commissioner.
2. Defines “woman” as an individual who self-identifies her gender as a woman, without regard to the individual’s designated sex at birth.
3. Requires the office of the governor to collect and release, annually, at a minimum, and on an aggregate basis, demographic data provided by all state board and commission applicants, nominees, and appointees relative to ethnicity, race, gender, gender identity, and sexual orientation.
4. Provides that demographic data disclosed or released pursuant to this subdivision not identify any individual applicant, nominee, or appointed board member or commissioner.

FISCAL EFFECT:

1. Unknown, potentially significant costs (GF) for the governor’s office to annually collect and report aggregated demographic data. The Department of Finance (DOF) indicates the cost to collect and release data regarding only the gubernatorial appointees would be minor and absorbable. However, DOF notes the bill includes all appointees to boards and commissions, many of whom are appointed by the Legislature, other state and local entities, and statutorily, and can include elected officials. The cost to gather data regarding non-gubernatorial appointees could be substantial given the complexity of the composition of the boards and commissions.
2. Unknown, potentially significant costs (GF) for litigation due to constitutional challenges that may arise.

COMMENTS:

1. Purpose. This bill seeks to increase the representation of women on California’s appointed boards and commissions. According to the author:

Women remain woefully underrepresented on California’s appointed boards and commissions. My hope is that by setting an example, California state government will inspire private companies to diversify their leadership. The legislature can’t pick who wins government or corporate elections, but we can create better opportunities for women to get involved and have a say in public policy and industry. More women in the boardroom will translate to more policies that level the playing field for women.

1. Background. Existing law establishes various boards, commissions, and task forces within state government. Existing law also establishes an appointment process for each of these various boards, commissions, and task forces that sets parameters around the qualifications for board members or commissioners, as well as who is responsible for their appointment. Additionally, existing law states that it is the policy of the State of California that the composition of state boards and commissions be broadly reflective of the general public including ethnic minorities and women. In making appointments to state boards and commissions, the governor and every other appointing authority is responsible for nominating a variety of persons of different backgrounds, abilities, interests, and opinions. However, statute explicitly states it is not the intent of the Legislature that formulas or specific ratios be utilized to achieve more diverse boards and commissions. This bill expressly creates a specific ratio for meeting gender diversity. The Legislature, of course, is not bound by the intent of a prior legislature.

Census data (2016) indicates that women account for 50.3% of the state’s population. The overall gender composition of state boards and commissions is unknown as is the number of entities currently meeting the requirements of this bill. A review of the governor's announcements of 81 appointments to state boards and commissions for the first five months of this year showed that 42% of those appointed were women and 58% were men. However, there were wide variations in these appointments on individual boards. For example, some boards have no women, while on one, women constituted 80% of the appointees.

The governor has the responsibility to appoint the majority of the members (approximately 2,000) to approximately 320 state boards and commissions. However, some members are appointed by the Legislature, state agencies, local entities, and statutorily. For example, one commission has 27 commissioners, only five of which are appointed by the governor and the remainder by various other entities. Because the bill’s requirements apply to each board and commission, when a board has multiple appointing entities, the appointing entities will need to coordinate their appointment efforts and decisions to achieve the composition required by this bill.

1. Constitutional Considerations: Equal protection. As noted in the analysis prepared by the Assembly Committee on Judiciary:

Because this bill creates an express gender classification, it would be subjected to heightened scrutiny under the equal protection clause of the 14^th Amendment of the U.S. Constitution and Article I, Section 7 of the California Constitution…it seems likely that if this bill became a law, it could face a constitutional challenge. Were that to happen, the state would need to show that the measure was justified by a "compelling" or "important" interest (depending upon whether strict or intermediate scrutiny applied) and the means would need to be narrowly tailored or substantially related to that interest. To defend this bill as an attempt to address past discrimination, it would not be enough to cite statistics showing that women are unrepresented on state boards and commissions. The defenders of this bill would most likely need to show specific evidence of discriminatory behavior, rather than simply inferring discrimination from the disproportionate numbers. Nonetheless, the courts have held in some cases that past discrimination and differences in opportunity, when demonstrated with specificity, can justify gender classification.

1. Related Legislation. SB 826 (Jackson), of this legislative session, would require a publicly held corporation with its executive office located in California to have a minimum of one woman on its board of directors by the end of 2019. It would also require an increase in the minimum number of women required by the end of 2021 and would mandate that the secretary of state compile a report detailing the numbers of companies leaving or entering the state. That bill is pending in this committee.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: June 28, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 984

Author:(Skinner) – As Amended Ver:June 21, 2018

As Proposed to be Amended

SENATE VOTE: 28-9

SUBJECT: STATE BOARDS AND COMMISSIONS: REPRESENTATION: APPOINTMENTS

KEY ISSUE: SHALL STATE BOARDS AND COMMISSIONS with four or fewer members have at least ONE woman beginning in 2024; and shall all other boards and commissions have a minimum of 40 percent WOMEN beginning in 2024?

SYNOPSIS

Since 1975, it has been the declared policy objective of the California Legislature to ensure that the composition of state boards and commissions reflect the diversity of the California population. Beyond this declaration of policy, however, the state has done relatively little, at least legislatively, to meet this goal. Instead, the state has largely depended upon the Governor to attempt to achieve this goal through the power of appointment. This bill, however, would attempt to achieve greater gender diversity by requiring that each state board and commission have a minimum number (or percentage) of women by 2024. If the board or commission has five or more members, women must constitute 40% of the membership. If the board or commission has four or fewer members, at least one member must be female. The bill also requires the Governor's Office to collect and release, at least annually, aggregate data relating to the race, ethnicity, gender identity, and sex of applicants, nominees, and appointees of the boards and commissions. Because this bill relies on both a gender classification and a quota system, it raises substantial equal protection concerns and would be subject to heightened scrutiny if challenged in the courts. The bill is supported by Equal Rights Advocates, Women’s Foundation of California, and Watermark. There is no known opposition to this bill. This bill will be heard by the Assembly Committee on Accountability and Administrative Review on the day prior to its hearing in this Committee. The author will take clarifying amendments, which are reflected in the summary and analysis below.

SUMMARY: Requires a minimum percentage or number of women to serve on each state board or commission beginning on January 1, 2024 and requires the Secretary of State to publish aggregate reports on the composition of each state board or commission. Specifically, this bill:

1. Mandates that beginning on and after January 1, 2024, the composition of each appointed state board and commission shall comply with the following:
   1. If the number of board members or commissioners is five or more, the state board or commission shall have a minimum of 40 percent women board members or commissioners.
   2. If the number of board members or commissioners is four or fewer, the state board or commission shall have a minimum of one woman board member or commissioner.
2. Defines “woman” as an individual who self-identifies her gender as a woman, without regard to the individual’s designated sex at birth.
3. Requires the office of the Governor to collect and release, annually, at a minimum, and on an aggregate basis, the following:
   1. Demographic data provided by all state board and commission applicants relative to ethnicity, race, gender, gender identity, and sexual orientation.
   2. Demographic data provided by all state board and commission nominees or appointees relative to ethnicity, race, gender, gender identity, and sexual orientation.
4. Provides that demographic data disclosed or released pursuant to this subdivision shall disclose only aggregated statistical data and shall not identify any individual applicant, nominee, or appointed board member or commissioner.
5. Requires that any demographic data disclosed or released pursuant to this subdivision shall also indicate the percentage of respondents who declined to respond.
6. Includes a severability clause which states that the provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

EXISTING LAW:

1. Declares that it is the policy of the State of California that the composition of state boards and commissions shall be broadly reflective of the general public including ethnic minorities and women. (Government Code Section 11140. All further statutory references are to the Government Code unless otherwise stated.)
2. Provides that in making appointments to state boards and commissions, the Governor and every other appointing authority shall be responsible for nominating a variety of persons of different backgrounds, abilities, interests, and opinions. Specifies that it is not the intent of the Legislature that formulas or specific ratios be utilized in complying with this article. (Section 11141.)
3. Provides under the United States Constitution that no State shall deny any person within its jurisdiction the equal protection of the laws. (U.S. Const., Amend. XIV, Sec. 1.)
4. Provides under the State Constitution that a person may not be denied equal protection of the laws. (Cal. Const., Art. 1, Sec. 7(a).)
5. States that a person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin. (Cal. Const., Art. 1, Sec. 8.)
6. Provides that the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (Cal. Const., Art. 1, Sec. 31.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Women tend to be vastly underrepresented in leadership roles across the private and public sectors. A 2017 report from the Center for American Progress notes that “the United States ranks first in women’s educational attainment on the World Economic Forum’s 2016 Global Gender Gap Index of 144 countries. But it ranks 26^th in women’s economic participation and opportunity and 73^rd in women’s political empowerment.” (https://www.americanprogress.

org/issues/women/reports/2017/05/21/432758/womens-leadership-gap/)

In terms of women’s lack of representation in private sector leadership roles, according to a 2015 news article, there are more men named “John” than women amongst CEOs of S&P 1500 companies. (“Fewer Women Run Big Companies than Men Named John,” New York Times, March 3, 1015, at https://www.nytimes.com/2015/03/03/upshot/fewer-women-run-big-companies-than-men-named-john.html) Likewise, in the political sphere women are greatly outnumbered by men – out of the 120 California State legislators who started the 2017-2018 legislative session, only 22 percent were women. (January 6, 2017. “California legislators: just like you?” (https://calmatters.org/articles/new-california-legislators-just-like-you.) Indeed, this Assembly Committee on Judiciary currently has eight men, one woman, and one vacancy, which means that it has a worse record than private corporation boards or appointed state boards and commissions in terms of gender parity. We cannot force voters to elect women to office, of course, but the author and sponsor of this measure nonetheless believe that we can increase women's presence in government and the policy-making process in other ways.

The State as Example: This measure would take a step toward narrowing existing gender disparities by requiring that appointed boards and commission in California have a minimum number of women. Specifically, this bill would require that, as of January 1, 2024, each appointed state board and commission have a specified number of women. Specifically, a board or commission with five or more members would be required to have 40% women, while a board or commission with four or fewer members must have at least one woman. The author and sponsor cite studies showing that women bring to the decision-making process different perspectives and styles of communication that can lead to better outcomes. The author believes that it is particularly important that the state lead the way in this regard. The author hopes that "by setting an example, California state government will inspire private companies to diversify their leadership. The legislature can't pick who wins government or corporate elections, but we can create better opportunities for women to get involved and have a say in public policy and industry."

Recent Appointments: According to the analysis of this bill prepared by the Assembly Committee on Accountability and Administrative Review, the Governor and Legislature have primary responsibility for appointing members to serve on state boards and commissions. At least in the aggregate, the current Governor has approached, but still fallen short, of reaching complete equality. A review of the Governor's 81 appointments to state boards and commissions for the first five months of this year shows that 42% of those appointed were women, while 58% were men, which is slightly better than the 40% minimum required by this bill. However, if one looks at individual boards, there appears to be more disparity. For example, some boards have no women, while on one, women constituted 80% of the appointees. This bill seeks to ensure that all boards and commissions reap the benefits of gender diversity by requiring a minimum number of women on each board or commission, not simply in the aggregate. Moreover, requiring a minimum number in statute will ensure that board and commission membership does not depend upon the inclinations of a particular Governor.

Possible Conflict with Existing Law and Legislative Intent: This bill adds a new section to an existing article within the Government Code. Enacted in 1975 (AB 1455, Vasconcellos), Section 11140 of the Government Code declares that it is the policy of the State that membership of boards and commissions shall be representative of the general public by including ethnic minorities and women. However, Section 11141, in requiring the Governor and Legislature to take account of this policy goal when appointing and confirming nominees, added the following statement: "It is not the intent of the Legislature that formulas or specific ratios be utilized in complying with this article." (Government Code Section 11141.) This bill expressly creates a specific ratio for meeting gender diversity. The Legislature, of course, is not bound by the intent of a prior legislature. However, for the sake of consistency, if this bill moves forward, the author may wish to consider striking the sentence quoted above from Section 11141. Otherwise, Section 11141 would declare a legislative intent to not use ratios to achieve more diverse boards and commissions, while the immediately following section would create a ratio.

Constitutional Considerations: Equal protection. Because this bill creates an express gender classification, it would be subjected to heightened scrutiny under the equal protection clause of the 14^th Amendment of the U.S. Constitution and Article I, Section 7 of the California Constitution. Because all government classifications "discriminate" (that is, draw distinctions) between persons or groups of persons in some way, they create a potential equal protection problem. Government classifications, therefore, must be justified by some sufficient government interest. Most classifications, such as those based on age or type of business enterprise, are subject to a "rational basis test," meaning that the classification only needs to serve a "legitimate" government purpose and the means used to achieve that purpose must be "reasonably related" to that purpose. The rational basis test is highly deferential, and the courts will generally uphold the classification so long as it is not completely arbitrary.

However, some statutory classifications are deemed "suspect" – most notably race and gender – and are therefore subject to heightened scrutiny. Under federal law, racial classifications are subject to "strict scrutiny," meaning that the classification is only justified by a "compelling government interest" and the means used to achieve that interest must be "narrowly tailored," meaning that they must be the "least restrictive" or "least discriminatory" means of achieving the interest. Beginning in the 1970s the U.S. Supreme Court began to subject gender classifications to heightened scrutiny, though it turned out to be something less than the "strict scrutiny" applied to racial classifications. By 1976 the Court and commentators had labeled this new level "intermediate scrutiny." Under this test, the government must justify the classification by showing an "important" government interest (rather than "compelling") that is "substantially related" (rather than "narrowly tailored") to that interest. (Craig v. Boren (1976) 429 U.S. 190, 197.) In United States v. Virginia (1996) 581 U.S. 515, Justice Ginsburg seemingly raised the test for gender discrimination by requiring an "exceedingly persuasive justification," which presumably lies somewhere between "compelling" and "important." The California courts, perhaps wisely, reject the federal race-gender distinction and apply "strict scrutiny" to classifications based on race or sex, as well as sexual orientation, on the theory that all are "immutable" characteristics that are not chosen and cannot be easily changed. (In Re Marriage Cases (2008) 43 Cal. 4^th 757.) Therefore, whether the gender classification in this bill is subject to strict or intermediate scrutiny may depend upon whether a challenge is filed in state or federal court.

Gender classifications that benefit women: Many of the earliest equal protection cases considering gender classification involved laws that limited or restricted women's activities or, to the extent they "benefitted" women – such as protective labor laws or exemptions from civic duties like jury service – were based on stereotypes about women's "natural" domestic roles, physical weakness, or forced economic dependence upon men. (See, e.g., Bradwell v. Illinois (1873) 83 U.S. 130, upholding a state law that prohibited women from practicing law on the grounds that a woman's "paramount destiny" was to be a "wife and mother"; Muller v Oregon (1908) 208 U.S. 412, upholding a state maximum hours law for women; Hoyt Florida (1961) 368 U.S. 57, upholding a state law exempting women from jury service.)

In more recent decades, equal protection cases involving gender and racial classification have involved affirmative action programs that have sought to promote gender and racial diversity or remedy past discrimination. For example: Can public universities use "quotas" or use race as a "factor" in the admissions process in order to diversify their student body? Can state or local governments set aside a certain number of contracts for women-owned or minority-owned businesses, or otherwise favor women or minorities in public employment or public contracting? On the first question, the prevailing view of the courts is still the Bakke rule that using race as a "factor" to reap the benefits of diversity is permissible, but using a "quota," or anything like it, is not a narrowly tailored means. (Regents of University of California v. Bakke (1978) 438 U.S. 265; Grutter v Bollinger (2003) 539 U.S. 306; Gratz v Bollinger (2003) 539 U.S. 244.) On the second question, courts have looked askance at contractual "set asides" for women and minorities, and in California the use of race and gender as a factor in public education, public employment, and public contracting was prohibited by Proposition 209. (City of Richmond v J.A. Croson (1989) 488 U.S. 469.)

Classification, the meaning of "discrimination," and remedying past wrongs. Critics of the courts’ treatment of laws that benefit women and minorities as forms of "discrimination" – and thereby demanding heightened scrutiny – persuasively argue that there is a fundamental moral and political difference between discriminatory laws that seek to exclude groups of people, on the one hand, and, on the other hand, "benign" classifications that seek to redress past discrimination by making the centers of economic and political privilege more accessible to those who have been historically excluded. (See, e.g., Richard Lempert, "The Force of Irony: On the Morality of Affirmative Action and United Steelworks v. Weber," 95 Ethics 86-89 (1984); John Hart Ely, "The Constitutionality of Reverse Racial Discrimination," 41 U. Chi. L. Rev 723 (1974).) In the courts, this debate has often taken the form of whether "strict scrutiny" should apply to affirmative action programs that attempt to address historically-based inequality. For example, in Gratz v. Bollinger (2003) 539 U.S. 244, the U.S. Supreme Court invalidated a race-based preference at the University of Michigan graduate program. In her dissenting opinion, however, Justice Ginsburg criticized the Court's equal protection jurisprudence for failing to appreciate that the court began applying "strict scrutiny" to racial classifications not because race is an inherently suspect category, but because historically racial classifications were always drawn for the purpose of maintaining racial inequality and white supremacy. Ginsburg wrote that, "Where race is considered for 'the purpose of achieving equality,' no automatic proscription is in order." (Id. at 301, quoting from Norwalk C.O.R.E. v. Norwalk Redevelopment Agency (1968) 395 F. 2d 921.) Notwithstanding Justice Ginsburg’s dissent, the Court majority continues to maintain that all suspect classifications are subject to heightened scrutiny whether they are benign or insidious.

Closely related to the question of the appropriate level of scrutiny for benign discrimination is the extent to which remedying past discrimination is a sufficiently compelling or important justification for affirmative action or, as to this bill, whether laws that benefit women can be justified as a remedy to past discrimination and differences in opportunity. While the courts have held that in certain cases remedying past discrimination may be a valid justification for both race and gender classifications, they have generally construed this very narrowly. That is, the courts have generally not accepted broad assertions of generalized discrimination that permeate society at large; rather, race- or gender-conscious preferences are only justified, if at all, where they address specific examples of discrimination in specific industries or government institutions. (See e.g. Erwin Chemerinsky, Constitutional Law: Principles and Policies, 3d ed., pp. 760-765.)

Relevance (and Irrelevance) of Proposition of 209: In November of 1996 California voters approved Proposition 209, a constitutional amendment providing that government entities "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." (Cal. Const. Article 1, Section 31.) The measure's language prohibiting "discrimination" was largely superfluous, given that state and federal law, as well as the equal protection clause of the 14th Amendment, already prohibit such discrimination. What was new about Proposition 209, therefore, was the prohibition on "preferential treatment." While the measure did not define "preferential treatment," the courts generally hold that a constitutional amendment "should be construed in accordance with the natural and ordinary meaning of its words." To give a preference, the courts reason, means to give "priority or advantage to one person . . . over others." [Hi-Voltage Wire Works v. San Jose (2000) 24 Cal. 4th 537, 559; quoting Webster's New World Dictionary (3d Ed. 1988).]

However, whether the court finds that this bill grants a "preference" for purposes of Proposition 209 and Article 1, Section 31, of the California Constitution would not matter if the Court determines that appointment on a state board or commission does not fall within "the operation of public employment, public education, or public contracting." (Cal. Const. Article 1, Section 31.) Although board and commission members may or may not be compensated, members are political appointees and not strictly speaking public "employees." Proposition 209 did not define "public employment," nor did it define what it meant by the "operation" of public employment, public education, or public contracting. For example, is the California Board of Regents concerned with the "operation" of public education? One might read it that way, but the debate over Proposition 209 that the reference to "public education" concerned preferences in the process of student admissions. Although the courts have never addressed the application of Proposition 209 to membership on state boards and commissions, the debate surrounding Proposition 209 suggest that this was not an issue considered at the time. (For a fuller discussion of Proposition 209, see background paper prepared by this Committee for the informational hearing, "Government Contracting in California: Impact of Proposition 209," February 24, 2015, at http://ajud.assembly.ca.gov/sites/ajud.assembly.ca.gov/files/Background%20Paper%20-%20Affirmative%20Action%20in%20Public%20Contracting%20Since%20Proposition%20209.pdf.

Conclusion: In short, it seems likely that if this bill became a law, it could face a constitutional challenge, if not under the California Constitution, then under the equal protection clause of the 14^th Amendment to the U.S. Constitution. Were that to happen, the state would need to show that the measure was justified by a "compelling" or "important" interest (depending upon whether strict or intermediate scrutiny applied) and the means would need to be narrowly tailored or substantially related to that interest. To defend this bill as an attempt to address past discrimination, it would not be enough to cite statistics showing that women are unrepresented on state boards and commissions. The defenders of this bill would most likely need to show specific evidence of discriminatory behavior, rather than simply inferring discrimination from the disproportionate numbers. Nonetheless, the courts have held in some cases that past discrimination and differences in opportunity, when demonstrated with specificity, can justify gender classification. This may be, potentially, the most promising strategy for supporters of this measure. (On the other hand, because courts have rejected gender "stereotypes" as a justification for classifications, it may not be the best strategy to argue that women should be added to boards and commissions because they are better communicators or that they have "more compassion and empathy" than men, as these may run the risk of basing the classification on gender stereotypes.)

ARGUMENTS IN SUPPORT: According to the author, "Women remain woefully underrepresented on California’s appointed boards and commissions." The author's hope is that, "by setting an example, California state government will inspire private companies to diversify their leadership. The legislature can’t pick who wins government or corporate elections, but we can create better opportunities for women to get involved and have a say in public policy and industry. More women in the boardroom will translate to more policies that level the playing field for women."

According to the sponsor, Equal Rights Advocates (ERA), women make up slightly more than 50% of the population and they earned the majority of doctoral degrees in 2016, yet "they continue to be underrepresented in government and business and in leadership positions general." ERA claims that "evidence shows that female leaders typically have more compassion and empathy, and a more inclusive negotiation style, all of which are important to leadership both in and out of government." ERA contends that because state boards and commissions play such an important role in guiding policy decisions, "we need leaders with diverse skill sets and backgrounds. Moreover, increased leadership opportunities on state boards and commissions will increase opportunities, skills, and public recognition for women overall and may least to increased representation of women in leadership positions overall including on corporate boards and corporate leadership, where gender leadership is sorely lacking." ERA concludes by noting that this bill provides "an opportunity for this State of California to lead by example to include women in leadership and encourage other sectors as well as the rest of the country and world to follow."

Proposed Author Amendments:

• On page 2, line 6, change "six" to "five"
• On page 2, delete lines 9-11
• On page 2, line 12, change (C) to (B)

Pending Related Legislation: SB 826 (Jackson), recently heard by this Committee, would require a publicly held corporation with its executive office located in California to have a minimum of one woman on its board of directors by the end of 2019. It would also require an increase in the minimum number of women required by the end of 2021 and would mandate that the Secretary of State compile a report detailing the numbers of companies leaving or entering the state.

REGISTERED SUPPORT / OPPOSITION:

Support

Equal Rights Advocates

Women’s Foundation of California

Watermark

Opposition

None on file

Analysis Prepared by: Sandra Nakagawa and Thomas Clark / JUD. / (916) 319-2334

Date of Hearing: June 27, 2018

ASSEMBLY COMMITTEE ON ACCOUNTABILITY AND ADMINISTRATIVE REVIEW

Susan Talamantes Eggman, Chair

SBPCA Bill Id:SB 984

Author:(Skinner) – As Amended Ver:June 21, 2018

SENATE VOTE: 28-9

SUBJECT: State boards and commissions: representation: appointments

SUMMARY: Requires, by January, 1 2024, each appointed state board and commission has minimum percentages or numbers of women members. Specifically, this bill:

1. Requires a minimum percentage or number of women depending on the size of the entity.
2. Defines "woman" as someone who self identifies her gender as a woman, without regard to the person's designated sex at birth.
3. Requires the Governor to collect and report specified demographic data at least annually.

EXISTING LAW:

1. Sets state policy for boards and commissions to be reflective of the general public, including ethnic minorities and women.
2. States that it is not the intent of the Legislature for appointing authorities to use formulas or specific ratios.

FISCAL EFFECT: This bill, in its current form, has not yet been analyzed by a fiscal committee.

COMMENTS: This bill specifies the gender composition of state boards and commissions. Depending on the number of members in each entity, it requires minimum percentages or numbers to be women members by 2024.

For larger entities with six or more members, this bill requires at least 40% to be women. For those with five members, at least two must be women. For entities with four or fewer members, at least one must be a woman.

According to the author:

"Senate Bill 984 requires each of California’s appointed state boards and commissions to have a minimum amount of seats filled by women. Women remain woefully underrepresented on California’s appointed boards and commissions. My hope is that by setting an example, California state government will inspire private companies to diversify their leadership. The legislature can’t pick who wins government or corporate elections, but we can create better opportunities for women to get involved and have a say in public policy and industry. More women in the boardroom will translate to more policies that level the playing field for women."

The Governor and Legislature are primarily responsible for appointing members to serve on state boards and commissions.

The overall gender composition of these entities is unknown and it is also unknown how many entities currently meet the requirements of this bill. However, a review of the Governor's announcements of 81 appointments to state boards and commissions for the first five months of this year showed that 42% of those appointed were women and 58% were men.

Yet, there were wide variations in these appointments by board or commission. For those entities with five or more appointments during this period, one entity had no women and another had 80% women appointees.

Recent amendments to this bill delay implementation to January 1, 2024. This is intended to allow appointing authorities more time to better analyze compositions of boards and commissions and make changes to meet requirements as vacancies occur during the next several years.

This bill requires the Governor's Office to collect and release at least annually demographic data related to board and commission applicants and appointees' ethnicity, race, gender, gender identity, and sexual orientation. Demographic data must be reported in aggregate without identifying any individuals and reporting must also include the percentage of those who declined to provide the demographic information.

RELATED LEGISLATION:

SB 826 (Jackson) of the current legislative session, which is set to be heard June 25, 2018, in the Assembly Banking and Finance Committee, requires a publicly held corporation located in California to have a minimum number of women as specified on its board of directors.

DOUBLE REFERRAL: Should this bill pass this committee, it will be re-referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Equal Rights Advocates
Watermark

Women's Foundation of California

Opposition

None on file

Analysis Prepared by: Scott Herbstman / A. & A.R. / (916) 319-3600

 THIRD READING  

Bill No: SB 984

Author:

:

Vote:

SENATE GOVERNMENTAL ORG. COMMITTEE: 7-3, 4/10/18

AYES: Dodd, Bradford, Galgiani, Hill, Hueso, Lara, Portantino

NOES: Cannella, Gaines, Vidak

NO VOTE RECORDED: Wilk, Glazer

SENATE JUDICIARY COMMITTEE: 5-2, 4/24/18

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SUBJECT: State boards and commissions: representation: appointments

SOURCE: Author

DIGEST: This bill requires the composition of each appointed state board and commission to have a specified minimum number of women board members or commissioners based on the total number of board members or commissioners on that board. This bill also requires the Office of the Governor to collect and release aggregated demographic data provided by state board and commission applicants, nominees, and appointees.

ANALYSIS:

Existing law:

1. Establishes various boards and commissions within state government.
2. States that it is the policy of the State of California that the composition of these state boards and commissions broadly reflect the general public, including ethnic minorities and women.
3. Specifies that the Governor and other appointing authorities are responsible for nominating individuals to boards and commissions of different backgrounds, abilities, interests, and opinions. Current law states, that it is not the intent of the Legislature that formulas or specific ratios be utilized in complying with this article.

This bill:

1. Requires the each appointed state board and commission to comply with the following:
   1. If the number of board members or commissioners is six or more, the state board or commission shall have a minimum of 40% women board members or commissioners.
   2. If the number of board members or commissioners is five, the state board of commission shall have a minimum of two women board members or commissioners.
   3. If the number of board members or commissioners is four or fewer, the state board or commission shall have a minimum of one woman board member or commissioner.
2. Specifies that the gender of the applicant or appointed board member or commissioner shall be determined by their self-identification.
3. Requires the Office of the Governor to collect and release, on an aggregate basis, both of the following:
   1. Demographic data provided by all state board and commission applicants relative to ethnicity, race, gender, gender identity, and sexual orientation.
   2. Demographic data provided by all state board and commission nominees or appointees relative to ethnicity, race, gender, gender identity, and sexual orientation.
4. Specifies that any demographic data disclosed or released pursuant to the provisions of this bill shall disclose only aggregated statistical data and shall not identify any individual applicant, nominee, or appointed board member or commissioner.
5. Requires the demographic data disclosed or released pursuant to this bill to indicate the percentage of respondents who declined to respond.
6. Specifies that if the provisions of this bill are severable. If any provisions of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

Comments

Purpose of the bill. According to the author’s office, “Women remain woefully underrepresented on California’s appointed boards and commissions. My hope is that by setting an example, California state government will inspire private companies to diversify their leadership.”

The author further argues that, “the Legislature can’t pick who wins government or corporate elections, but we can create better opportunities for women to get involved and have a say in public policy and industry. More women in the boardroom will translate to more policies that level the playing field.”

Current requirements and composition. Current law specifies that it is the policy of the State of California that the composition of state boards and commissions broadly reflect the general public, including ethnic minorities and women. However, there is nothing in law that requires mandatory ratios to be met in order to satisfy that policy. In fact, current law states that it is not the intent of the Legislature to establish specific ratios or formulas. This bill contradicts that provision.

In addition, the current composition of state boards and commission is unknown. This bill seeks to remedy the lack of data by requiring the Governor’s Office to collect and release aggregated demographic data of members of state boards and commission.

Impact of the bill. As previously stated, the current composition of state boards and commissions is unknown. Therefore, it’s unclear how prevalent the problem of women underrepresentation is. Regardless, this bill could dramatically impact the appointment process.

As previously stated, current law simply specifies that it is the policy of the State of California that the composition of its boards and commissions broadly reflect the general public. By establishing specific ratios, this bill could make it more difficult to fill appointments.

For instance, if there is currently an underrepresentation of women, this bill could mean that, on January 1, 2019, the state would not be compliant with the provisions of this bill. In theory, this would require that all future appointments to boards and commissions be women, until the specific ratios set forth by this bill were fulfilled. During this period, the appointment of other ethnic minorities, including men of color and/or gay men could be negatively impacted.

Related/Prior Legislation

SB 826 (Jackson, 2018) requires a publicly held corporation, as defined, to have a minimum number of women on its board of directors, dependent on the size of its board. The bill also requires the Secretary of State (SOS) to review and issue reports regarding corporations’ compliance with the bill’s provisions and authorizes the SOS to impose fines for violations. (Pending on the Senate Floor)

AB 1890 (Dodd, 2016) would have enacted the Equal Pay for Equal Work Act of 2016, requiring an employer with a state contract of $50,000 or more, or who has 100 or more employees in the state, to submit an annual report to the Department of Fair Employment and Housing that would have included summary data on the compensation paid to employees, sorted by gender and race. (Vetoed by Governor Brown)

SB 358 (Jackson, Chapter 546, Statutes of 2015) made various changes to the California Equal Pay Act related to gender wage inequality including standards relating to employer proof of non-discrimination and replacing the qualification for discriminatory treatment while performing “equal work” with “substantially similar work.”

AB 1354 (Dodd, 2015) would have enacted the Equal Pay for Equal Work Act of 2015, requiring an employer with 100 or more employees to submit the details of their nondiscrimination program to the Department of Fair Employment and Housing and to submit periodic reports of compliance prior to becoming a contractor with the state. (Vetoed by Governor Brown)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, unknown, potentially significant costs for the Governor’s Office to collect and release aggregated demographic data. The annual costs of collecting and aggregating those data are dependent on the frequency of aggregating and releasing those data.

SUPPORT: (Verified 5/25/18)

Equal Rights Advocates

Watermark

Women’s Foundation of California

OPPOSITION: (Verified 5/25/18)

None received

ARGUMENTS IN SUPPORT: Equal Rights Advocates argues that “members of state boards and commissions play an active role in guiding important policy decisions and the issues facing our state. Therefore, we need leaders with diverse skill sets and backgrounds. Moreover, increased leadership opportunities on state boards and commissions will increase opportunities, skills, and public recognition for women overall and may lead to increased representation of women in leadership positions overall including on corporate boards and corporate leadership, where gender diversity is sorely lacking. Finally, SB 984, is an opportunity for the State of California to lead by example to include women in leadership and encourage other sectors as well as the rest of the country and the world to follow.”

Prepared by:

5/29/18 8:45:46

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 984 (Skinner) - State boards and commissions: representation: appointments

Bill Summary:

SB 984 would require the composition of each appointed state board and commission to have a specified number of women directors based on the number of board or commission members and would require the office of the Governor to collect and release aggregated demographic data provided by state board and commission applicants, nominees, and appointees.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 25, 2018

Fiscal Impact:

Unknown, potentially significant costs for the Governor’s office to collect and release aggregated demographic data. The annual costs of collecting and aggregating those data are dependent on the frequency of aggregating and releasing those data. (GF)

Author Amendments:

Make technical and clarifying changes.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 984 (Skinner) - State boards and commissions: representation: appointments

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 984 would require the composition of each appointed state board and commission to have a specified number of women directors based on the number of board or commission members and would require the office of the Governor to collect and release aggregated demographic data provided by state board and commission applicants, nominees, and appointees.

Fiscal Impact:

Unknown, potentially significant costs for the Governor’s office to collect and release aggregated demographic data. The annual costs of collecting and aggregating those data are dependent on the frequency of aggregating and releasing those data. (GF)

Background:

Existing law specifies that it is the policy of the State of California that the composition of state boards and commissions broadly reflects the general public, including ethnic minorities and women. Current law also states that it is not the intent of the Legislature to establish specific ratios or formulas to determine the composition of boards and commissions.

2016 census data reports that women account for 50.3% of the state’s population. The current demographic composition of state boards and commissions is unknown.

Proposed Law:

This bill would require that each appointed state board and commission have a specified number of women directors dependent on the number of board members or commissioners, as follows:

• At least one woman director if there are four or fewer board members or commissioners;
• At least two women directors if there are five board members or commissioners;
• At least 40% women directors if there are six or more board members or commissioners.

This bill would also require the office of the Governor to collect and release, on an aggregate basis, demographic data provided by all state board and commission applicants, nominees or appointees relative to ethnicity, race, gender, gender identity, and sexual orientation, as specified.

Related Legislation:

SB 826 (Jackson, 2018) would require a publicly held corporation, as defined, to have a minimum number of women on its board of directors, dependent on the size of its board. This bill would also require the Secretary of State (SOS) to review and issue reports regarding corporations’ compliance with the bill’s provisions and authorize SOS to impose fines for violations. This bill is pending in the Senate Appropriations Committee.

SB 960 (Campos, Chapter 197, Statutes of 2013) required one of the seven public members appointed by the Governor to serve on the Commission on the Status of Women and Girls to be a woman veteran or a female member of the military.

Staff Comments:

Staff notes that, if there is currently an underrepresentation of women on state boards and commissions, this bill could mean that on January 1, 2019, the State would not be compliant. Each board and commission’s members serve term lengths that are specific to that entity and it could take an unknown amount of time before the State could possibly become compliant. There is also no penalty or consequence if the State or a particular board or commission is not compliant.

This bill attempts to comply with existing law that requires the composition of state boards and commissions to reflect the general public. The bill requires demographic data, including ethnicity, race, gender, gender identity, and sexual orientation on board and commission applicants, nominees, and appointees to be collected; however, subdivision (a) only addresses the appointment of women on boards and commissions and does not address other groups who are not represented on boards and commissions at a level that reflects the general population.

This bill requires the office of the Governor to collect and release demographic data, on an aggregate basis. The frequency of releasing those data is not specified. The annual costs of collecting and aggregating those data are dependent on the frequency of aggregating and releasing those data.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 984 (Author:Skinner)

Version: February 5, 2018

Hearing Date: April 24, 2018

Fiscal: Yes

Urgency: No

TG/Consultant: MS

SUBJECT

State boards and commissions: representation: women

DESCRIPTION

SB 984 would require state boards and commissions be comprised of, at a minimum, 50% women. The bill would also require Secretary of State disclose on its Internet Web site the gender composition of each state board and commission.

BACKGROUND

Existing law establishes various boards, commissions, and task forces within the state government. Existing law also establishes an appointment process for each of these various boards, commissions, and task forces, that sets parameters around the qualifications for board members or commissioners, as well as who is responsible for their appointment. Additionally, existing law states that it is the policy of the State of California that the composition of state boards and commissions shall be broadly reflective of the general public including ethnic minorities and women. (Gov. Code Sec. 11140.) In making appointments to state boards and commissions, the Governor and every other appointing authority shall be responsible for nominating a variety of persons of different backgrounds, abilities, interests, and opinions. (Gov. Code Sec. 11141.) However, it is not the intent of the Legislature that formulas or specific ratios be utilized in complying with this article. (Id.)

Currently, we know that California’s population is one of the world’s most diverse. 2016 census data reports that women account for 50.3 percent of the state’s population. (United States Census Bureau, “Quick Facts: California,” <https://www.census.gov /quickfacts/CA> (as of Mar. 30, 2018).) Additionally, it’s been reported that 39 percent of the state’s population is Latino, 38 percent are white, 14 percent are Asian American, 6 percent are African American, 3 percent are multiracial, and less than 1 percent are American Indian or Pacific Islander. Moreover, 27 percent of Californians are estimated to be foreign born, meaning more than 10 million Californians are immigrants. (Public Policy Institute of California, “Just the Facts: California’s Population,” <http://www.ppic.org/publication/californias-population/> (as of Mar. 30, 2018).)

Despite knowing this demographic data about California’s population, we currently have no data regarding the demographic makeup of California’s State Boards, Commissions, or Task Forces. Thus, it is unclear whether the existing requirements that these bodies reflect the state’s population are being met. This bill would require the reporting of the gender composition of each state board and commission on the Secretary of State’s website. As well as, require each appointed state board and commission be comprised of, at least, 50 percent women.

CHANGES TO EXISTING LAW

Existing federal law, the United States Constitution, provides that no State shall deny any person within its jurisdiction the equal protection of the laws. (U.S. Const., Amend. XIV, Sec. 1.)

Existing law, the California Constitution, provides that a person may not be denied equal protection of the laws. (Cal. Const., Art. 1, Sec. 7(a).)

Existing law, the California Constitution, provides that a person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin. (Cal. Const., Art. 1, Sec. 8.)

Existing law, the California Constitution, provides that the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (Cal. Const., Art. 1, Sec. 31.)

Existing law provides that it is the policy of the State of California that the composition of state boards and commissions shall be broadly reflective of the general public including ethnic minorities and women. (Gov. Code Sec. 11140.)

Existing law provides that in making appointments to state boards and commissions, the Governor and every other appointing authority shall be responsible for nominating a variety of persons of different backgrounds, abilities, interests, and opinions. (Gov. Code Sec. 11141.)

Existing law provides that it is not the intent of the Legislature that formulas or specific ratios be utilized in complying with this article. (Gov. Code Sec. 11141.)

This bill would provide that the composition of each appointed state board and commission shall be, at a minimum, 50 percent women.

This bill would provide that the Secretary of State shall disclose on its Internet Web site the gender composition of each state board and commission.

COMMENT

1. Stated need for this bill

According to the Author:

Senate Bill 984 would require that all state boards and commissions that are filled by appointment include women as half of their membership or more. Women remain woefully underrepresented on California’s appointed boards and commissions. My hope is that by setting an example, California state government will inspire private companies to diversify their leadership. The legislature can’t pick who wins government or corporate elections, but we can create better opportunities for women to get involved and have a say in public policy and industry. More women in the boardroom will translate to more policies that level the playing field for women.

In support, Marlene Williamson, on behalf of Watermark, states:

Members of state boards and commissions play an active role in guiding important policy decisions and the issues facing our state require leaders with diverse skill sets and backgrounds. Moreover, these state government appointments can subsequently lead to positions on corporate boards, which are sorely lacking in gender diversity, as set forth above.

For these reasons, Watermark is proud to support SB 984 and thanks you for your leadership on this very important issue.

1. Constitutional analysis of subdivision (a)

In its present form, subdivision (a) of this bill would require appointed state boards and commissions to be composed of at least 50 percent women. Such a requirement potentially conflicts with a number of federal and state constitutional provisions. Since a statute cannot supersede constitutional mandates, if there are indeed conflicts, then this bill would be unenforceable, at least to the degree of the conflict. If enacted, subdivision (a) of this bill would likely face such a constitutional challenge and might be found invalid.

1. Equal Protection Considerations

Both the U.S. and California Constitutions contain an Equal Protection Clause. The federal Constitution says: “[n]o State shall… deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Const., Amend. XIV, Sec. 1.) Very similarly, the state Constitution states that: “[a] person may not be… denied equal protection of the laws.” (Cal. Const., Art. 1, Sec. 7(a).) Courts applying the constitutional concept of equal protection have ruled that laws drawing suspect classifications between people and treating them differently on that basis are subject to heightened judicial scrutiny.

Subdivision (a) makes a classification based on gender. The courts have held that, under the federal Equal Protection Clause, such gender classifications only have to meet intermediate scrutiny, meaning that the underlying statute “must serve important governmental objectives and must be substantially related to achievement of those objectives.” (Craig v. Boren (1976) 429 U.S. 190, 197.) However, the courts have ruled that the California Constitution’s Equal Protection Clause is more demanding. Under the California Constitution, a law based on a classification by gender must meet strict scrutiny, meaning that such laws “may be upheld only if they are shown to be necessary for furtherance of a compelling state interest and they address that interest through the least restrictive means available.” (Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 33.) This is so whether the intent behind the law is claimed to be benign or remedial. (Id. at 20-21.) Moreover, strict scrutiny applies regardless of what word the statute uses to express its aim; be it “goal,” “quota,” or, in the case of subdivision (a) of this bill, a percentage.

Strict scrutiny is even more rigorous than intermediate scrutiny. If subdivision (a) meets the threshold for surviving strict scrutiny, therefore, it almost certainly meets the test for intermediate scrutiny. Bearing that in mind, the remainder of this Comment focuses only on whether subdivision (a) of this bill could meet the higher, state test.

To pass strict scrutiny, the government must show, first, that the statute is necessary to furtherance of a compelling state interest and, second, that the statute uses the least restrictive means to further that interest.

With regard to the compelling state interest component of strict scrutiny, courts have set a high bar and warned that evidence must be marshalled in advance. (Connerly, supra, 92 Cal.App.4th 16, 37.) Conclusive statements about the government’s interest are not enough; “governmental specificity and precision are demanded” and “simple legislative assurances of good intention cannot suffice.” (Id. at 36.)

Remedying past discrimination can be a sufficiently compelling interest to pass strict scrutiny, but for that to be so, the government must meet two criteria. (Connerly, supra, 92 Cal.App.4th 16, 37.) First, the government must identify the discrimination to be remedied with some degree of specificity. (Id. at 38.) “A generalized assertion that there has been discrimination in a particular industry or region is insufficient and mere statistical anomalies, without more,” will not suffice. (Id. at 38, internal citations omitted.) Second, the government must have strong evidence on which to conclude that the remedial action is necessary. It is not enough for the governmental entity in question to concede past discrimination and, while statistical analysis may be valuable evidence in some instances, statistical generalizations alone cannot meet the government’s burden. (Ibid.)

With regard to the component of strict scrutiny analysis that requires the government to show that is has employed the least restrictive means for furthering the state’s interest, the courts have been equally demanding. Demonstrating that the chosen means are reasonable or efficient is not sufficient. (Connerly, supra, 92 Cal.App.4th 16, 37.) There must be a precise nexus between the justification for the statute and the classification used, the Legislature must consider gender-neutral alternatives, and the classification must be limited in scope and duration to that which is necessary to accomplish the legislative purpose. (Ibid). In addition, to pass strict scrutiny, use of the suspect classification must actually be remedial, meaning that the statute must be designed as nearly as possible to restore the victims of specific discriminatory conduct to the position they would have occupied in the absence of such conduct. (Ibid.)

Taken together, all of these considerations set an extraordinarily high bar for a statute to meet strict scrutiny. In light of that, subdivision (a) of the bill, if enacted, might have very difficult time surviving an equal protection challenge. Arguably, its best hope is that a reviewing court could be convinced that the state’s interest is truly compelling and that the bill is indeed tailored as narrowly as possible to achieve that interest. In its current form, however, the bill offers little evidence of the kind, detailed above, that courts have demanded when applying strict scrutiny to other statutes. In that regard, the author may wish to consider amending the bill to add findings that are responsive to those considerations. Specifically, the author may wish to add evidence demonstrating the importance of achieving gender balance on state boards and commissions, detailed evidence regarding specific past discrimination that has prevented women from serving in these roles, as well as information about the consideration and rejection of alternative mechanisms, including gender-neutral mechanisms, for achieving the same result.

1. California Constitution, Article I, Section 31 Considerations

Section 31 of Article I of the California Constitution is frequently known by the ballot initiative from which it came: Proposition 209, passed by the California voters in 1996. The relevant part of Proposition 209 reads as follows:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

In contrast to equal protection analysis, which permits classifications based on race or gender provided they can meet heightened scrutiny, Proposition 209 is a nearly absolute bar on the use of such classifications. Unless the federal Constitution requires the implementation of a remedial program that takes race or gender into account, Proposition 209 forbids it. (Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 567.) Thus, if Proposition 209 applies to this bill, then it is almost certainly unconstitutional.

It is possible, however, that Proposition 209 does not apply to this bill. Proposition 209 prohibits the use of gender classifications in the “operation” of public employment, education, or contracting. Merriam-Webster’s online dictionary defines “operation” as: “performance of a practical work or of something involving the practical application of principles or processes.”^[1] The function of a board or commission is to establish principles and procedures, but they are not typically involved in the day-to-day “practical application” of them. In this sense, it may be possible to distinguish service on boards and commissions from the operation of public employment, education, and contracting, even for those boards, like a school board or a public works commission, which oversee such operations. While it would clearly violate Proposition 209, for instance, for a school board to mandate that its district hire at least 50 percent female teachers, it is less clear that requiring at least 50 percent of the school board to be female is also a violation. The former falls squarely within the “operation” of public education and public employment. The latter is, at least arguably, restricted to oversight of public education.

The courts do not appear to have addressed this question head on. A review of the recorded cases applying Proposition 209 reveals that each one involved public education, employment, or contracting programs, rather than the composition of the body overseeing such programs. Thus, the meaning of the term “operation” within the context of Proposition 209 would appear to be a matter of first impression.

1. California Constitution Article 1, Section 8 Considerations

Section 8 of Article 1 of the California Constitution states that: “[a] person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”

On its face, subdivision (a) of this bill does not appear to violate Section 8 of Article 1 in as much as it does not, alone, “disqualify” anyone from serving on a board or commission. It might also be debatable whether serving on a state board or commission could appropriately be characterized as “entering or pursuing a business, profession, vocation, or employment.”

At the same time, the California courts have construed Section 8 of Article 1 as articulating a general public policy against discrimination on the basis of gender. (Rojo v. Kliger (1990) 52 Cal.3d 65, 89-90.) Nonetheless, the case law interpreting Section 8 of Article 1 seems to suggest that it is, if anything, more permissive of gender based classifications than the strict scrutiny standard discussed above in relation to the state Equal Protection Clause. Applying Section 8 of Article 1 in the context of alleged religious discrimination in the workplace, the California Supreme Court concluded that Section 8 of Article 1 “does not require full equality of treatment of all employees’ religious practices under all circumstances, but does require whatever reduction of inequality of treatment is possible through reasonable steps that do not impose undue hardship on employers.” (Rankins v. Commission on Professional Competence (1979) 24 Cal. 3d 167, 174.) Elaborating on this holding, one California Court of Appeal wrote that, as Section 8 of Article 1 “does not proscribe discriminatory practices resting on suitably cogent justifications, we infer that the policy against discrimination stated by section 8 also yields in some circumstances to competing concerns about the general welfare.” (Sistare-Meyer v. Young Men's Christian Ass’n (1997) 58 Cal.App.4th 10, 16.)

In light of the foregoing, it seems likely that, if subdivision (a) passed the strict scrutiny test with a reviewing court, it would also survive review under Section 8 or Article 1.

1. Why we need demographic data

The Author states the following in terms of what motivated her to introduce this legislation:

Here in California, despite making up just over half the population, women are outnumbered by men in the California legislature by nearly four to one. While strides have been made in pay equity and in confronting sexual abuse and harassment, to truly achieve gender equity more women need to be in the influential, decision making roles in both the public and private sector.

While the legislature can’t pick who wins elections or who becomes the next corporate CEO, ensuring that there is gender parity on all state boards begins to level the playing field.

As highlighted by the Author in this statement, interested parties can look at the current makeup of the California Legislature and easily see the lack of diversity in this body. What’s less clear is the existing demographic makeup of California’s Boards and Commissions. Currently, the Office of the Governor’s Internet Web site contains a section devoted to the Governor’s list of appointments. This Internet Web site contains links to Volume 1: Governor’s Appointments, Volume 2: Legislative Appointments, Volume 3: Appointments Made by Other Appointing Authorities. The Volumes are then broken down alphabetically and contain the following information:

• name of the commission or board;
• purpose;
• statutory authority;
• appointing power breakdown;
• number of board members or commissioners;
• board member/commissioner qualifications;
• term/term limits;
• compensation;
• meeting frequency;
• bond;
• oath;
• duties;
• internet website; and
• name, appointment date, and end date of current board members or commissioners.

Though these Volumes provide interested parties with some names of the individuals serving on state boards or commissions, and the Internet Web site for each Board or Commission may provide more biographical information, there currently seems to be no overall data regarding the diversity of California’s Boards and Commissions. Additionally, the Governor’s Appointment Volume alone contains eight different documents, each with over 100 pages. This existing system does not provide interested parties with easily accessible demographic data, nor does it provide an overview of the diversity found across the State Board and Commissions appointment process.

1. The importance of demographic information

In 2006, then Assembly Speaker Fabian Núñez raised concerns regarding the lack of diversity found on the bench within California’s courts. Before SB 56 (Dunn, Ch. 390, Stats. 2006) could authorize 50 new judgeships, Speaker Núñez required interested parties in the appointment process, the Governor, Judicial Council, the State Bar’s Judicial Nominees’ Evaluation (JNE) Commission, to take a conscious look at the lack of diversity on the bench and recognize the need for more diversity. To meet this ask, new reporting requirements were amended into SB 56 to help identify the ethnic and gender diversity of members of the judicial branch and to identify the same data within the pool of applicants for judgeships. In 2007 these reporting requirements were modified by AB 159 (Jones, Ch. 722, Stats. 2007) to require the Governor to collect and release, on an aggregate statewide basis:

1. demographic data provided by all judicial applicants relative to ethnicity, race, and gender; and
2. demographic data relative to ethnicity, race, and gender of all judicial appointments or nominations as provided by the appointment or nominee.

By requiring the reporting of this demographic data, a number of reports have been issued on the diversity of the bench. As highlighted in this Committee’s analysis of AB 159 (Jones, Ch. 722, Stats. 2007.), the initial data collection and reporting in response to the passage of SB 56 (Dunn, Ch. 390, Stats. 2006) showed the scope of the problem. According to this Committee’s analysis:

In March 2007, the three reports were issued. Generally, they confirmed what is readily observable to any court observer. As stated by the San Francisco Chronicle in its editorial on March 6, 2007: “Walk into any California courthouse, and one thing is plain. The judges on the bench don’t reflect the state’s diverse make-up. In a state that is a majority non-white, nearly three-quarters of some 1,600 judges are white males …. In a state that’s 32 percent Latino, only 6.3 percent of the judges are from this group. Blacks, who are 8 percent of the state, make up only 4.4 percent of the judges.”

As for women, San Francisco has the distinction of being the only large county with as many women as men (50 percent each). Other superior courts with a large percentage of women judges are Yuba (60 percent), Amador and Plumas (50 percent), Contra Costa (46 percent), Marin (40 percent), San Mateo (35 percent), Napa and Yolo (33 percent), Alameda, L.A., and San Diego (30 percent each), and Monterey, Santa Clara, and Stanislaus (29 percent).

Conversely, there are also several trial courts in California that have all male judges. These superior courts include: Alpine, Calaveras, Colusa, Del Norte, Glenn, Inyo, Kings, Lake, Lassen, Mariposa, Merced, Modoc, Mono, San Benito, Sierra, Sutter, Tehama, and Trinity.

(See AB 159 (Jones, Ch. 722, Stats. 2007.).)

In the 11 years since that analysis was written, the most recent demographic data shows a shift. Merced’s Superior Court now has two female judges, as opposed to their all male bench of 2007. Changes can also be seen in Colusa County (one female judge), Kings County (three female judges), Merced County (two female judges), Sierra County (one female judge), Sutter County (one female judge), Tehama County (one female judge), and Trinity County (one female judge). Although this shows that there are still far too many Superior Courts with no female judges, without this demographic data reporting requirement there arguably would not have been any light shed on this issue and perhaps less done to correct the imbalance. (Jud. Council of Cal., Demographic Data Provided by Justices and Judges Relative to Gender, Race/Ethnicity, and Gender Identity/Sexual Orientation (Dec. 31, 2017), pp. 3-5, <http://www.courts. ca.gov/documents/2018-JO-Demographic-Data.pdf> (as of Mar. 30, 2018).)

In terms of racial or ethnic diversity, California’s bench also reflects some improvement in diversity outcomes. According to the most recent demographic data:

• 10.3 percent of California’s judges identify as Hispanic or Latino, compared to 6.3 percent in 2007; and
• 7.3 percent identify as Black or African American, compared to 4.4 percent in 2007. (Id.)

Though there is still work to be done, the data again shows that California’s judicial appointments are inching towards being a better reflection of the diversity seen within the state’s population. Arguably, without this data to support what former Assembly Speaker Núñez and others were seeing on the bench, an almost 50 percent increase in the number of Latino and African American judges would likely not have occurred.

1. Lack of data available on the demographics of our State Boards and Commissions

Demographic data is necessary to prove what Californian’s may feel they see in our Courts or on our State Boards and Commissions. It provides the evidence and attention needed for focused change in the State’s appointment process. Demographic data makes the State’s decision makers reflect on who they are nominating and whether these choices genuinely reflect the makeup of our state, as existing law requires. Thus, the changes proposed by subdivision (b) would result in the same wealth of information becoming available for California’s appointed Commissioners and Board Members as is now annually reported regarding the diversity of California’s judges.

Amendment One

On page 2, line 1 in front of state, insert “each appointed”

On page 2, line 1, strike boards through commissions and insert “board and commission”

Amendment Two

On page 2, strike lines 1-2 and insert:

(b) (1) The office of the Governor shall collect and release, on an aggregate basis, all of the following:

(A) Demographic data provided by all state board and commission applicants relative to ethnicity, race, gender, gender identity, and sexual orientation.

(B) Demographic data provided by all state board and commission applicants relative to ethnicity, race, gender, gender identity, and sexual orientation.

(2) Any demographic data disclosed or released pursuant to this subdivision shall disclose only aggregated statistical data and shall not identify any individual applicant, nominee, or appointed board or commission member.

(3) Any demographic data disclosed or released pursuant to this subdivision shall also indicate the percentage of respondents who declined to respond.

Once informed by this demographic data, what the Author’s office suspects may be proven true, California’s State Boards and Commissions may not be a reflection of California’s diverse population. However, at this point, the lack of data available makes it incredibly difficult to know what the data will reveal. Due to this lack of information, and the above discussed constitutional concerns, the Author’s office may wish to consider striking subdivision (a) and moving forward with only subdivision (b). Then once the demographic data is available, California’s decision makers, including the Author, could reevaluate the possible diversity gaps within the State’s Board and Commission appointments and determine the best path forward to address those concerns.

1. Potential Privacy Concern with Reporting Demographic Data

As in print, this bill would simply require the office of the Governor disclose on its Internet Web site the demographic information, including, but not limited to ethnicity, nationality, and gender of each appointee made by the Governor between July 1 of the prior year through June 30 of the reporting year, and the same information for each state board, commission, and task force appointed by the Governor, the Senate Rules Committee, and the Speaker of the Assembly as of June 30 of the reporting year. The bill does not specify as to whether the reported data should be in the aggregate.

Typically, as a matter of public policy, such data is reported in the aggregate to protect the privacy of the individuals whose information is being shared. For example, the current demographic reporting practices for judges requires that demographic data collected from judicial applicants, nominees, and appointees be disclosed only on an aggregated statistical basis so that it does not identify any individual applicant, justice or judge. Demographic data is inherently sensitive and as a matter of public policy the sensitivity of this material is typically protected by requiring it be reported in the aggregate. This keeps an individual’s private information confidential. If the Author accepts the proposed amendments above, see Comment 3, the privacy of the collected information would be protected.

1. Constitutional analysis of subdivision (b)

While subdivision (b) also makes reference to gender and would require the office of the Governor to disclose the gender composition of each state board and commission on its Internet Web site, along with other demographic information, the information-gathering function of subdivision (b), standing alone, does not raise constitutional concerns.

In Connerly v. State Personnel Board (2001) 92 Cal.App.4th 16, the court ruled on the constitutionality of a series of state, race-based “affirmative action” programs associated with the lottery, sale of bonds, civil service employment, and contracting. Several of these programs had both a substantive component, which required preferential consideration or selection of certain candidates based on their race, and a data collection and reporting component. While the court struck down the substantive elements of each affirmative action program, it upheld the data collection and reporting components whenever they could be severed from the rest of the statute. “[M]onitoring programs which collect and report data concerning the participation of women and minorities in governmental programs,” the court concluded, “do not violate equal protection principles.” (Connerly, supra, at 49.) Moreover, “[s]o long as such a program does not discriminate against or grant a preference to an individual or group, Proposition 209 is not implicated.” (Id. at 50).

With this in mind, and given the constitutional issues presented by subdivision (a) of the bill, the author may wish to consider adding a severability clause to the bill, so that subdivision (b)’s information gathering and publication requirements can stand even in the event that subdivision (a) of the bill is ruled invalid.

1. Severability

In sum, it is possible that provisions of this bill might be challenged under the state and federal constitution (see Comment 2, above). With that in mind, this Committee suggests the inclusion of a severability clause. This would provide that should the courts strike down the bill’s provision requiring women make up 50 percent of each appointed state board and commission, then the data collection piece would remain in force. This could be achieved through the following amendment:

Amendment 3

On page 2, after line 2 insert:

(c) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

Support: Watermark

Opposition: None Known

HISTORY

Source: Author

Related Pending Legislation: SB 826 (Jackson 2018) would require a domestic general corporation or foreign corporation that is a publicly held corporation with its principal place of business located in California to have a minimum of one woman on its board of directors. It would also require a minimum number to two women directors if the corporation has five authorized directors or to three women directors if the corporation has 6 or more authorized directors. It would also require the Secretary of State to review these corporations. This bill is set to be heard by this Committee on April 24th.

Prior Legislation:

SB 960 (Campos, Ch. 197, Stats. 2013) required one of the seven public members appointed by the Governor to serve on the Commission on the Status of Women and Girls to be a woman veteran or a female member of the military.

AB 1005 (Alejo, Ch. 113, Stats. 2013) added disability and veteran status to the list of demographic data that is provided annually by judicial applicants, nominees, appointees, justices, and judges, and required to be collected and released by the Governor, the Commission on Judicial Nominees Evaluation of the State Bar, and the Administrative Office of the Courts.

SB 182 (Corbett, Ch. 720, Stats. 2011) added gender identity and sexual orientation to the list of demographic data that is provided annually by judicial applicants, nominees, appointees, justices, and judges, and required to be collected and released by the Governor, the Commission on Judicial Nominees Evaluation of the State Bar, and the Administrative Office of the Courts.

AB 126 (Davis, Ch. 667, Stats. 2011), among other things, required the State Bar, in collecting and releasing statewide demographic data on all judicial applicants, and the Administrative Office of the Courts (AOC), in collecting and releasing demographic data on justices and judges, to use specified ethnic and racial categories.

AB 159 (Jones, Ch. 722, Stats. 2007) authorized an unspecified appropriation of superior court judgeships following legislative appropriation. This bill also revised the existing demographic data collection requirement for judges and instead required the Governor to collect and release, on an aggregate statewide basis, demographic data provided by all judicial applicants, relative to ethnicity, race, gender, and demographic data on all judicial appointments or nominations relative to ethnicity, race, and gender as provided by the appointee or nominee.

SB 56 (Dunn, Ch. 390, Stats. 2006) authorized 50 additional superior court judgeships and required reporting on the diversity of judges and the applicant pool for judgeships.

Prior Vote: Senate Committee on Governmental Organization (Ayes 7, Noes 3, No Vote Recorded 2)

**************

1. Definition of Operation (Mar. 21, 2018) Merriam-Webster <https://www.merriam-webster.com/dictionary/operation> (as of Mar. 27, 2018). ↑

SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION

Senator Bill Dodd

Chair

2017 - 2018 Regular

Bill No: SB Hearing Date: 4/10/18

SUBJECT:

DIGEST: This bill requires that the composition of state boards and commissions be comprised of, at a minimum, 50% women and requires the Secretary of State (SOS) to disclose on its Internet Web site the gender composition of each state board and commission.

ANALYSIS:

Existing law:

1. Establishes various boards and commissions within state government.
2. States that it is the policy of the State of California that the composition of these state boards and commissions broadly reflect the general public, including ethnic minorities and women.
3. Specifies that the Governor and other appointing authorities are responsible for nominating individuals to boards and commissions of different backgrounds, abilities, interests, and opinions. Current law states, that it is not the intent of the Legislature that formulas or specific ratios be utilized in complying with this article.

This bill:

1. Requires the composition of state boards and commissions to be comprised of, at a minimum, 50% women.
2. Requires the SOS to disclose on its Internet Web site the gender composition of each state board and commission.

Background

Purpose of the bill. According to the author’s office, “this bill would require that all state boards and commissions that are filled by appointment include women as half of their membership or more. Women remain woefully underrepresented on California’s appointed boards and commissions. My hope is that by setting an example, California state government will inspire private companies to diversify their leadership.”

The author further argues that, “the Legislature can’t pick who wins government or corporate elections, but we can create better opportunities for women to get involved and have a say in public policy and industry. More women in the boardroom will translate to more policies that level the playing field.”

Current requirements and composition. Current law specifies that it is the policy of the State of California that the composition of state boards and commissions broadly reflect the general public, including ethnic minorities and women. However, there is nothing in law that requires mandatory ratios to be met in order to satisfy that policy. In fact, current law states that it is not the intent of the Legislature to establish specific ratios or formulas. This bill would contradict that provision.

In addition, the current composition of state boards and commission is unknown. This bill seeks to remedy the lack of data by requiring the SOS to disclose on its Internet Web site the gender composition of each state board and commission. However, the bill does not include a similar requirement for ethnic minorities, or any other minority.

Unclear language. The current language in the bill is unclear as to whether the minimum 50% requirement applies to each state board and commission or whether the bill is intended to apply to the overall composition of all state boards and commissions.

If the author intends to apply such a requirement to each state board and commission, the 50% requirement could in fact be quite higher. For instance, if a specific board has a total of five appointees, the board would need to be composed of three women, or 60%. Similarly, for those boards and commissions who have a total of three appointees, the percentage would rise to approximately 66%.

Impact of the bill. As previously stated, the current composition of state boards and commissions is unknown. Therefore, it’s unclear how prevalent the problem of women underrepresentation is. Regardless, the bill could dramatically impact the appointment process.

As previously stated, current law simply specifies that it is the policy of the State of California that the composition of its boards and commissions broadly reflect the general public. By explicitly requiring a 50% minimum requirement for women, this bill could make it more difficult to fill appointments.

For instance, if there is currently an underrepresentation of women, this bill could mean that, on January 1, 2019, the state would not be compliant with the provisions of this bill. In theory, this would require that all future appointments to boards and commissions be women, until the 50% requirement was met. During this period, the appointment of other ethnic minorities, including men of color and/or gay men could be negatively impacted.

Finally the bill currently requires the SOS to publicly post on its Internet Web site the gender composition of each state board and commission. In the past, similar requirements have raised privacy concerns. As such, the author may wish to amend the bill to require that the data be collected in a manner that is free of privacy implications.

Prior/Related Legislation

SB 826 (Jackson, 2018) would require a domestic general corporation or foreign corporation that is a publicly held corporation, as defined, with its principal place of business located in California to have a minimum of one female on its board of directors. (Pending in the Senate Banking and Financial Institutions Committee)

AB 1890 (Dodd, 2016) would have enacted the Equal Pay for Equal Work Act of 2016, requiring an employer with a state contract of $50,000 or more, or who has 100 or more employees in the state, to submit an annual report to the Department of Fair Employment and Housing that would have included summary data on the compensation paid to employees, sorted by gender and race. (Vetoed by Governor Brown)

SB 358 (Jackson, Chapter 546, Statutes of 2015) made various changes to the California Equal Pay Act related to gender wage inequality including standards relating to employer proof of non-discrimination and replacing the qualification for discriminatory treatment while performing “equal work” with “substantially similar work.”

AB 1354 (Dodd, 2015) would have enacted the Equal Pay for Equal Work Act of 2015, requiring an employer with 100 or more employees to submit the details of their nondiscrimination program to the Department of Fair Employment and Housing and to submit periodic reports of compliance prior to becoming a contractor with the state. (Vetoed by Governor Brown)

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT:

Equal Rights Advocates

Watermark

Women’s Foundation of California

OPPOSITION:

None on file

ARGUMENTS IN SUPPORT: Equal Rights Advocates argues that “members of state boards and commissions play an active role in guiding important policy decisions and the issues facing our state. Therefore, we need leaders with diverse skill sets and backgrounds. Moreover, increased leadership opportunities on state boards and commissions will increase opportunities, skills, and public recognition for women overall and may lead to increased representation of women in leadership positions overall including on corporate boards and corporate leadership, where gender diversity is sorely lacking. Finally, SB 984, is an opportunity for the State of California to lead by example to include women in leadership and encourage other sectors as well as the rest of the country and the world to follow.

DUAL REFERRAL: Senate Judiciary Committee