The danger of difference: Tensions in directors' views of corporate board diversity

University of Illinois Law Review

Volumn 2013, Issue 3, 2013, Pages 919-958

  Krawiec, Kimberly D ^a   Conley, John M ^b   Broome, Lissa L ^b  

^a DUKE UNIVERSITY   (United States)

^b UNIVERSITY OF NORTH CAROLINA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84880073958     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (29)

1. We have reviewed this research in Lissa L. Broome, John M. Conley, & Kimberly D. Krawiec, Dangerous Categories: Narratives of Corporate Board Diversity, 89 N. C. L. REV. 761, 765-66 (2011).
2. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). The decision rejected a raceconscious admissions program at the UC-Davis medical school. But Justice Powell, in an opinion that only he signed, advanced the notion that race could be a factor in state university admissions, because of the value of diversity. He seems to have borrowed the concept of diversity from an amicus brief submitted by Harvard and other elite universities. Id. at 316, 322-23. For a discussion of the impact of the Bakke case on public discourse about diversity
3. see John M. Conley, Lissa L. Broome, & Kimberly D. Krawiec, Narratives of Diversity in the Corporate Boardroom: What Corporate Insiders Say About Why Diversity Matters, in DISCOURSE PERSPECTIVES ON ORGANIZATIONAL COMMUNICATION 201, 205-08 (Jolanta Aritz & Robyn C. Walker eds., 2012).
4. See CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982).
5. A board's nominating committee must be composed of independent directors, which means that the company's CEO may not be a member. NYSE LISTED COMPANY MANUAL § 303A. 04 (a), available at http://nysemanual.nyse.com/lcm ("Listed companies must have a nominating/corporate governance committee composed entirely of independent directors.").
6. IRVING L. JANIS, VICTIMS OF GROUPTHINK: A PSYCHOLOGICAL STUDY OF FOREIGN POLICY DECISIONS AND FIASCOES 9 (1972) (defining groupthink as poor decisions made by a group due to pressure from the group that resulted in reduced moral judgment and eliminated a reality check).
7. See, e.g., Frances J. Milliken & Luis L. Martins, Searching for Common Threads: Understanding the Multiple Effects of Diversity in Organizational Groups, 21 ACAD. MGMT. REV. 402, 414 (1996) (discussing this idea and analyzing studies on point).
8. The performance perspective derives in large part from the work of the sociologist Erving Goffman, who thought about everyday social behavior by analogy to theatrical performances. That is, the social actor, like the skilled dramatic actor, takes on a role, develops a belief in it, and crafts a performance that is appropriate for the audience and mindful of the entire social context. See, e.g., ERVING GOFFMAN, FRAME ANALYSIS: AN ESSAY ON THE ORGANIZATION OF EXPERIENCE (1974);
9. ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1959).
10. The National Football League's "Rooney Rule", named after its principal proponent, Pittsburgh Steelers owner Dan Rooney (and not his famous father, Art), requires every NFL team with a head coaching vacancy to interview at least one minority candidate. See Kim Van der Zon, Bring the NFL "Rooney Rule" into Corporate Boardrooms, FORBES. COM (May 9, 2012, 2:35 PM), http://www.forbes.com/sites/forbeswomanfiles/2012/05/09/bring-the-nfl-rooney- rule-into-corporate-boardrooms/ (arguing for a version of the Rooney Rule in corporate director searches).
11. Lissa Lamkin Broome, John M. Conley, & Kimberly D. Krawiec, Does Critical Mass Matter? Views from the Boardroom, 34 SEATTLE U. L. REV. 1049 (2011) (discussing critical mass in detail).
12. Compare VICKI W. KRAMER ET AL., CRITICAL MASS ON CORPORATE BOARDS: WHY THREE OR MORE WOMEN ENHANCE GOVERNANCE (Wellesley Ctrs. for Women 2006) (concluding that a critical mass of women improves corporate governance), with Broome, Conley, & Krawiec, supra note 41 (finding more limited support for critical mass theory).
13. See ROSABETH MOSS KANTER, MEN AND WOMEN OF THE CORPORATION 206-42 (1977).
14. Item 407 (c) (2) (vi) of Regulation S-K, 74 Fed. Reg. 68, 334 (Dec. 23, 2009)
15. (codified at 17 C. F. R. pt. 229).
16. Signaling is discussed in more detail in Lissa Lamkin Broome & Kimberly D. Krawiec, Signaling Through Board Diversity: Is Anyone Listening?, 77 U. ClN. L. REV. 431 (2008).
17. Proxy Disclosure Enhancements, 74 Fed. Reg. 68, 334, 68, 343-44 (Dec. 23, 2009)
18. (codified at 17 C. F. R. pt. 229).
19. Thomas Lee Hazen & Lissa Lamkin Broome, Board Diversity and Proxy Disclosure, 37 U. DAYTON L. REV. 39, 60-64 (2011).
20. E.g., Letter from Kate Tillan, Assistant Chief Accountant, SEC, to Robert M. Davis, Chief Fin. Officer, Baxter Int'l, Inc. 3 (Apr. 7, 2010), available at http://secfilings.nyse.com/cgi/image?g=&quest=l&rid=23&ipage= 7049265&doc=2 ("We note your disclosure... that 'diversity of background' is a relevant factor in the selection of directors process. In future filings please describe how this policy is implemented, as well as how the corporate governance committee assesses the effectiveness of its policy as requested by Item 407 (c) (2) (vi) of Regulation S-K.").
21. Douglas M. Branson, Women on Boards of Directors: A Global Snapshot 6-7 (Univ. of Pittsburgh L. Sch. Legal Stud. Res. Paper Series, Working Paper No. 2011-05, 2011), available at http://papers.ssm.com/sol3/papers.cfm?abstract-id= 1762615.
22. E.g., Zoe Wood & Tom Bawden, Inquiry Calls for More Women in Boardroom, GUARDIAN (Feb. 24, 2011, 4:28 AM), http://www.guardian. co.uk/business/2011/feb/24/davies-inquiry-womenboardroom-targets-quotas (noting that a British government report, the Davies Report, called for British companies to achieve twenty-five percent female board representation by 2015).
23. Numerous organizations, including Catalyst, Inc., the Executive Leadership Council, and the Hispanic Association on Corporate Responsibility, have been involved in efforts to mentor and educate potential diverse directors. Their respective websites detail some of the efforts of these organizations. See CATALYST, INC., http://www.catalyst.org (last visited Mar. 6, 2013);
24. EXEC. LEADERSHIP COUNCIL, http://www.elcinfo.com (last visited Mar. 6, 2013);
25. HlSP. ASS'N ON CORP. RESP., http://www.hacr.org (last visited Mar. 6, 2013).
26. Douglas M. Branson, An Australian Perspective on a Global Phenomenon: Initiatives to Place Women on Corporate Boards of Directors 27-28 (Univ. of Pittsburgh L. Sch. Legal Stud. Res. Paper Series, Working Paper No, 2012-13, 2012), available at http://ssm.com/abstract=2064087.
27. See, e.g., Senior Leadership Initiative, EXEC. LEADERSHIP COUNCIL, http://www.elcinfo.com/lead-senior.php (last visited Mar. 6, 2013) (describing the Corporate Board Development Program);
28. HACR Corporate Directors Summit, HlSP. ASS'N ON CORP. RESP., http://www.hacr.org/programs/2012-corporate-directors-summit/ (last visited Mar. 6, 2013) (describing a three-day summit of Hispanic corporate board members). In 2012, the Corporate Board Member hosted an event, "Moving the Needle", partnering CEOs, board chairs, and lead directors with at least one qualified diverse board candidate with the goal of increasing the number of diverse board members.
29. See Moving the Needle: Overview, BOARDMEMBER. COM, http://www. boardmember.com/movingtheneedle/ (last visited Mar. 6, 2013).