In 2018, California enacted legislation requiring publicly held corporations having their principal executive offices in the state to have minimum numbers of female directors. 2018 Cal. Stats. ch. 954. Despite pending constitutional challenges to that legislation, the legislature followed up by imposing additional requirements for minimum numbers of directors from "underrepresented communities". 2020 Cal. Stats. ch. 316. That legislation is also being challenged in court.
The legislature is now considering a bill, AB 105 (Holden), that would require state boards and commissions to have minimum numbers of members of "underrepresented communities" as follows:
- By December 31, 2022, all state boards and commissions shall have a minimum of one director or commissioner from an underrepresented community.
- By December 31, 2023, all state boards and commissions that consist of more than four but fewer than nine directors or commissioners shall have a minimum of two directors or commissioners from an underrepresented community.
- By December 31, 2023, all state boards and commissions that consist of nine or more directors or commissioners shall have a minimum of three directors or commissioners from an underrepresented community.
The bill would define a “director or commissioner from an underrepresented community” to be an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.
If enacted and signed into law, one obvious question will be whether this requirement runs afoul of the following constitutional mandates:
- Article I, Section 7(b) of the California Constitution:
"A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens."
- Article I, Section 31(a) of the California Constitution:
"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."
- Section 1 of the Fourteenth Amendment to the U.S. Constitution:
"No state shall . . . deny to any person within its jurisdiction the equal protection of the laws".
