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Volume XII, Number 28

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Is Self-Identification Antithetical To Remedying Discrimination?

As has been previously discussed in this space, California Secretary of State Shirley N. Weber is seeking dismissal of a federal court challenge to California's director quota mandates - SB 826 and AB 979.  Alliance For Fair Board Recruitment v. Weber, U.S. Dist. Ct. Case No. 2:21-cv-05644-RGK (RAOx).   In her motion, Secretary Weber asserts:

California’s corporate board diversity statutes, enacted as Senate Bill No. 826 (2018) and Assembly Bill No. 979 (2020), further compelling and important state interests in remedying discrimination and promoting diversity in corporate leadership, with attendant benefits to California and its residents.

Both statutes rely upon an individual's self-identification as female and/or a member of an underrepresented community.  Cal. Corp. Code §§ 301.3(f)(1) ("'Female' means an individual who self-identifies her gender as a women, without regard to the individual's designated sex at birth") 301.4(e)(1) ("'Director from an underrepresented community' means 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.").  This reliance on self-identification is logically disconnected to the asserted purpose of remedying discrimination.   Discrimination occurs when someone treats another differently based on a perceived characteristic.  That perceived characteristic may, or may not, be in accord with the person's self-identification. 

The fact that discrimination depends on perceived characteristics can be found in California's Unruh Civil Rights Act which provides:

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

Cal. Civ. Code § 51(b).  The Act provides that "Sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status” includes a perception that the person has any particular characteristic or characteristics within the listed categories.  Cal. Civ. Code § 51(e)(6).  As a prohibition on invidious discrimination, the Act makes sense because it relies on the perception of listed characteristics.

The relationship of perception to "discrimination" is etymological.   "Discrimination" is derived from the Latin word cernere, which means to perceive, and the prefix dis, meaning apart.  

© 2010-2022 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume XI, Number 314
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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...

949-851-5428
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