Comment Text:
Re RIN 3038-AD01 and, in particular, ‘‘(22) DIVERSITY OF BOARD OF DIRECTORS.—The board of trade, if a publicly traded company, shall endeavor to recruit individuals to serve on the board of directors and the other decision-making bodies (as determined by the Commission) of the board of trade from among, and to have the composition of the bodies reflect, a broad and culturally diverse pool of qualified candidates”:
We urge a statement in the final rule that striving for a “culturally diverse” board does not mean weighing or giving preferences on the basis of race and ethnicity, and that such discrimination is neither required nor authorized by the statute or its regulations -- and is indeed unlawful.
The statute does not say race/ethnicity; it says “culturally.” We note and applaud the fact that the notice itself never uses the words race, racial, ethnic, or national origin.
Any statutory construction that would bless racial/ethnic discrimination is to be disfavored because of the constitutional issues it would raise -- see, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ("all racial classifications ... must be analyzed by a reviewing court under strict scrutiny"); such classifications and preferences are "presumptively invalid" (see Personnel Administrator v. Feeney, 442 U.S. 256 (1979)) -- and because it would be inconsistent with 42 U.S.C. 1981 and, if directors are considered “employees,” Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e et seq., as well.
The rationale for such diversity (see the footnote 80 in the notice and accompanying text) is not remedial, but because of broader perspectives gained. This interest is insufficient to justify racial or ethnic discrimination, but in any event using race/ethnicity as a proxy for those perspectives would not be narrowly tailored, since companies can look for the cultural differences directly; race/ethnicity is not the same as culture, and any such equation would be stereotyping. Companies give prospective board members very careful scrutiny and don’t hire very many of them at a time, which makes it even harder to justify the use of race/ethnicity as a proxy for culture.
Finally, as for expanding the diversity requirement further than is specifically mandated by statute, we recommend against such extension. As a general matter, there is no need for the government to second-guess nongovernment decisionmaking in this area and, absence such a clear need, government regulation should be avoided; this is especially so since we fear that any government action in this area will likely result in (politically correct) racial and ethnic discrimination. The private sector needs no such encouragement, and such discrimination has lacks logical, empirical, legal, and moral support. See Center for Equal Opportunity testimony before the Equal Employment Opportunity Commission (February 2007 and May 2006): http://www.ceousa.org/content/blogcategory/56/85/ (in this regard, we are dubious about the notice’s statement that “The benefit of cultural diversity on Boards of Directors in enhancing the efficiency of organizations has been recognized.\80\”).
