November 29, 2022

Volume XII, Number 333

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November 29, 2022

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November 28, 2022

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Does Hilaria Baldwin Qualify As A Member Of An "Underrepresented Community"?

Last year, California Governor Gavin Newsom signed AB 979 (2020 Cal. Stats. ch. 316) into law.  No later than the end of this year, "publicly held corporations" with their principal executive offices in California are required to have a minimum of one director from an "underrepresented community".   By the end of next year, these corporations with more than 4 but fewer than 9 directors will be required to have a minimum of 2 directors from "underrepresented communities", and such a corporation with 9 or more directors to have a minimum of 3 directors from "underrepresented communities".   A "director from an underrepresented community" is defined as 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".  Cal. Corp. Code § 301.4(e)(1).

Recently, someone on twitter ignited a flurry of press stories by accusing Hilaria Baldwin of a "decade long grift where she impersonates a Spanish person".  The ensuing brouhaha illustrates some fundamental problems for corporations subject to AB 979. Under the plain words of the statute, the director's actual ancestry, place of birth, or perceived physical characteristics matter not.  All that is required is that the director self-identify as a member of a listed community.  Seemingly, therefore, Ms. Baldwin would qualify as a member of an underrepresented community even if it is proved that she was not born in Spain and has no Spanish ancestry.  Corporations claiming Ms. Baldwin as a member of an "underrepresented community" may nonetheless face criticism, and even litigation.

AB 979 does not provide definitions of the listed communities.  This creates even more uncertainty and ambiguity for directors and corporations.  Does classification as "Hispanic" depend or a person's origin, culture or both?  Another California statute, for example, defines "Hispanic" as "a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin regardless of race".  Cal.  Pub. Cont. Code § 2051(c).   If "culture" alone can make one Hispanic, why wouldn't someone born in Korea of Korean parents self-identify as Hispanic so long as he or she is devoted to Spanish culture?  Indeed, according to this article in Vanity Fair, Ms. Baldwin has defended herself as someone who "grew up in a family that valued Spanish culture".  

© 2010-2022 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume XI, Number 4
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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
Partner

Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...

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