Across Europe, the question of whether quotas should be enforced  for the highest-ranking corporate positions as a means to addressing  gender injustice is under vigorous discussion.  Much of the debate has  focused on the European Commission’s (2012) draft directive COM 614,  which would place an “obligation of means” on listed companies to ensure  that at least 40% of non-executive directors (or 30% of all directors)  of each corporate board are female by 2020.[i]  Bearing this draft directive in mind, Jude Browne (The Jessica and  Peter Frankopan Director of the University of Cambridge Centre for  Gender Studies and Fellow in Social Sciences at King’s College)  considers the philosophical arguments that underlie the main challenges  to quota policy and concludes that a much greater emphasis should be  placed on the structural causes of gender inequality in employing  institutions. From this, Browne outlines the beginnings of an  alternative quota policy called the Critical Mass Marker approach.

(This is a condensed version of a full length article – Browne,  J. (forthcoming, 2014) ‘The Critical Mass Marker Approach: Female Quotas  and Social Justice’, Political Studies. Official Journal of the  Political Studies Association)

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The political philosopher Louis Pojman is widely considered to have  provided the definitive case against quotas in the International Journal  for Applied Philosophy in 1998: ‘[T]here are good reasons in  terms of efficiency, motivation, and rough justice for holding a strong  prima facie principle of giving scarce high positions to those most competent’. (Pojman, 1998, pp. 97–115). This is of course a compelling  argument on the face of it; however, we might think about particular  circumstances where we would countenance exceptions. There has, for  example, been a great deal of work done on quotas in the context of  group representation in democratic political arenas which are meant to respond to and act for diverse citizenries. Anne Phillips, the political  theorist, for example, has developed a compelling defence of female  quotas for democratic political assemblies on the grounds that gender  representation is one ‘minimal condition for transforming the political  agenda’ in such a way that ‘challenges the social arrangements which  have systematically placed women in a subordinate position’ (Phillips,  1995, p. 82). Another well-theorised example is that of racially  sensitive affirmative action programmes [ii]  for US university admissions procedures advocated by Ronald Dworkin,  who argues that in this context quotas are vital as a means to reducing racial segregation in society which is, in and of itself, ‘a social  good’ (1985, p. 294).

But what about contexts where these sorts of arguments do not fit so  clearly? One might argue that the primary function of the corporate  board, for example, is not to act as a forum for representing or  reflecting societal groups but rather to manage an organisation  effectively. Should we still adopt quotas to correct segregation  patterns irrespective of primary functions in such a context?  The  European Commission thinks we should. Dissatisfied with the  long-observed efforts of listed companies across Europe to increase the  number of women on their boards, the draft Directive (COM 2012 614)for  the European Parliament and Council was issued in November 2012 to bring the number of female non-executives up to 40%.[iii]  Norway, for example, has already enforced this sort of quota policy for  corporate boards with some striking results. Several other countries,   such as France, Italy, Austria, the Netherlands and Belgium,  have  followed suit in some sense, whilst the UK has argued against this.[iv]

Empirical Context

Whilst quotas are not currently permitted under UK law, equality and  anti-discrimination laws have been supplemented with the introduction of  positive action provisions in the 2010 Equality Act (Sections 158 and  159). The details of these provisions provide us with a set of  characteristics useful for theoretical discussion.

Under the Act, and distinct from quotas, positive action is permitted in relation to actual  candidates for a particular job or promotion as opposed to setting  impersonal targets which prescribe the employment or promotion of people  endowed with a certain characteristic (e.g. race or sex). Positive  action in this context means that employing institutions are permitted  to adopt ‘special measures’ aimed at alleviating disadvantage or  under-representation experienced by those with any of the ‘protected  characteristics’. These specified protected characteristics are as  follows: ‘age; disability; gender reassignment; marriage and  civil partnership; pregnancy; maternity; race (including ethnic or  national origins, colour and nationality); religion or belief; sex and  finally; sexual orientation’. Each can be invoked, for example, as  reason for an employer to favour one applicant with a protected  characteristic over another who does not have the protected  characteristics but nevertheless is of a comparable standard (UK  Equality Act, 2010, Section 159).

There is a crucially important question raised by the idea of the  protected characteristics: which groups, commonly known to experience  discrimination (the protected characteristics), should be eligible for  quotas and in which particular circumstances? If we look, for example,  to the context of the UK Equality Act’s promotion of positive action for  guidance, it is merely determined that positive action should only be  used as a ‘proportionate means of achieving the aim’ (UK Equality Act,  2010, explanatory notes, para. 512). However, the way in which   proportionality should be interpreted is left open; and this is an  important point to which I’ll return.

The motivation for current debate on female quotas for corporate  boards is easily illustrated in the top 350 companies of the London  Stock Exchange.  The latest Female FTSE report shows that only 17.4% of  corporate board directorships are held by women – that is 541 out of a  total of 3103. These figures become even more noteworthy when we  consider that it is within the Non-Executive Director positions that we  find the majority of female board members (the category that the Draft  EU Directive is aimed at). In the FTSE 100, only 6.9% of Executive  Directors are women, whilst the figure amongst Non-Executive Directors  is 25.5% (Vinnicombe et al 2014).

In stark contrast, women make up 44% of Norwegian corporate boards.  In 2003, Norway introduced legislation that set quotas of no less than  40% women (or men) on all company boards (Norwegian Ministry of  Children, Equality and Social Inclusion, 2011).[v]  Non-compliance is set against heavy legislation threatening fines and,  in extreme cases, liquidation. Certainly, no one can be in any doubt  that, in terms of equality of outcome, the Norwegian approach has been  extremely successful. However, such an approach attracts a barrage of  criticisms that not only emerge regularly throughout the press and  policy discussions but dominate theoretical debates on quotas.  Those  most relevant to the context of female quotas for corporate boards can  be summarised into three main objections. The first is that quotas will  produce selection procedures whereby people are chosen not on merit but  rather by their physical or social characteristics; this, in turn  reduces the talent pool within institutions and their potential to  function optimally. The second objection is that affirmative action is a  form of compensation that is itself discriminatory and unjust. The  third is that affirmative action serves to undermine the achievements of  the successful minority who have risen to senior positions on their own  merit.

Each of these can be considered with fruitful reference to three  major theorists from the field of political theory: Ronald Dworkin, Iris  Marion Young and Anne Philips. Whilst none attempt a specific defence  for female quotas for corporate boards, they all have something  important to say about quotas in general and it’s worth considering  which aspects of their arguments extend to that of the corporate board  and which do not.

Challenge 1 – from meritocracy to mediocrity

Pojman suggests there are two fundamental features of meritocracy  that should compel us to reject quotas. The first is that people should  be treated as ends not means: ‘By giving people what they deserve as  individuals rather than as members of groups, we show respect for their  inherent worth.’ (p.112). The second is that we will be ‘better off’ if  we employ the ‘best leaders, teachers, policemen, physicians, generals,  lawyers, and airplane pilots that we can possibly produce in society’  (p. 112).

Monitoring performance, devising business strategies, controlling  capital expenditure, risk management and securing maximal profits for  shareholders: these are the sorts of functions that easily spring to  mind when thinking about the purpose of corporate boards. Undoubtedly,  we would expect corporate board members to be highly competent as they  manage some of the largest and most powerful economic entities in the  world. Evidently, what is needed are the very best corporate executives  around and if we were to look to any number of highly successful  companies, we might deduce from the composition of their corporate  boards that a certain type, or, more likely, a certain type of male,  fits best.  However, these sorts of assertions tell us nothing of the reasons why things are as they are. Certainly, the idea of one’s nature  being of the best ‘fit’ for purpose evokes the common claim that women  hold particular characteristics which may or may not be well suited to a  particular job (or to a high degree of commitment at the most senior  levels). Without entering here into discussions of genetics, neurology  or endocrinology, suffice to say that, as I and others have vigorously  argued elsewhere [vi],  biological determinism is a weak basis on which to develop this sort of  social policy: each year we see a rise of women in degree courses and  occupations in which traditionally there were few. These new trends are  not reflections of genetic warping in the female population but rather a  change in culture, opportunity and, crucially, expectation.

Intrinsic to the assumptions built into the arguments that Pojman makes is that we are already  operating in some sort of meritocratic selection process and that the  reason why women do not rise to senior positions is something to do with  their suitability. Even when employing institutions fulfill their legal  obligations by not overtly discriminating against women, opinions on  which individuals ‘fit best’ are far from neutral.  In Phillips’ work on  quotas for women in political assemblies she argues that ‘there is no  process of … appointment that operates by a single quantifiable scale,  and the numbers are always moderated by additional criteria.These more  qualitative criteria (‘personality’, ‘character’, whether the candidates  will ‘fit in’) often favour those who are most like the people  conducting the interview’(Phillips, 1995, p. 61).  Similarly,  Iris Marion Young argues that ‘criteria of evaluation often emphasise  norms of conformity which contribute to the smooth maintenance and  reproduction of the existing relations of privilege, hierarchy, and  subordination…’(1990, p205).

From this it would seem a good idea to secure a greater number of  women as role models on corporate boards who would serve to disrupt some  of these biases. But is this enough of a reason to inject women into  corporate boards simply on the basis that there are very few at  present?  Even if we are wholly convinced that certain patterns of  segregation indicate stark injustice and demand action, the objection to  quotas that they might result in the promotion of inexperienced  individuals to the boardrooms of some of Europe’s most specialised and  powerful corporate positions remains.

Challenge 2 – from compensation to discrimination

The second objection often aired against quotas and which is  particularly relevant to the case of corporate boards is the idea that  such policies are in fact a form of compensation between advantaged  groups and disadvantaged groups (in our case, men and women  respectively). Pojman, an avid critic of what he describes as ‘reverse  discrimination’, sarcastically parodies the argument for affirmative  action: ‘young … males are innocent beneficiaries of unjust  discrimination … and have no grounds for complaint when society seeks to  level the tilted field. They may be innocent of oppressing … women, but  they have unjustly benefitted from that oppression or discrimination.  So it is perfectly proper that less qualified women … be hired before  them (1998, p. 101).

In Dworkin’s defence of US racially sensitive university admissions  policies, however, he argues that whilst it may seem as if a ‘merit  candidate’ is to be replaced by a ‘quota candidate’ on the simple  grounds that the latter is an African American, this would be to  misframe the situation. Dworkin argues that no one has a right to  a particular position such as a university place (1985, p. 298) and  that the only entitlement any candidate genuinely has, or should expect,  is not to ‘suffer from the prejudice or contempt of others’ (p. 298).  On this view, the quota policy becomes one of many features central to  the university admissions process including, for example, restrictions  on total numbers of admissions offers available. For Dworkin then, an  unsuccessful admissions candidate has no grounds for complaint against  an admissions quota policy. This approach would seem to fit similarly  well in the context of female quotas for corporate boards; because  appointment to the corporate board is not a question of right,  implementation of a quota policy could not be said to infringe upon the  rights of any man to sit on a board.

Despite this insight, we are still faced with overcoming the  objection that quotas will lead to the promotion of women who lack the  right experience or ability to function at the corporate board level.  Before turning to this specific point, let’s first consider the third  objection relevant to the example of female quotas and corporate boards.

Challenge 3 – from insult to injury

It is often argued that quota policies are degrading to those who did  not attain their high status posts through them. By introducing quotas,  so the argument goes, the view that women have usurped senior positions  merely in virtue of their sex will become overwhelming. Consequently,  all women, whether genuinely competent or not, become stigmatised by the  mere presence of quota policies and, in turn, these negative  assumptions become yet more injurious in the form of sexism and  sex-based inequality – the very grievances that quotas are supposed to  address. Pojman (1998, p. 110) consolidates this form of criticism by  asserting that affirmative action is ‘sexist’ as it fails to treat women  with dignity as individuals. The first response to this sort of  argument is simply that if we were to accept quotas as an effective  mechanism for change then the small numbers of senior women who might be  offended by them is surely disproportionate to the overall  gains.Moreover, it might be that as more women became present in the  corporate context less degrading labelling would occur.

The three objections challenged

From these discussions of the three main objections to quotas  relevant to the example of corporate boards (‘meritocracy’,  ‘compensation’ and ‘insult’), we might accept that current segregation  patterns do not reflect meritocratic processes. Secondly, calls for  quotas should not be framed in terms of ‘merit candidates’ being  substituted with ‘quota candidates’. Thirdly, any offence caused by the  existence of quota policies should be set against the just gains:  moreover, one would hope that if the extreme levels of sex segregation  which currently dominate the corporate board environment were to  diminish, then derisive tokenism and degrading stereotypical assumptions  about women would cease to prevail. Nevertheless, the arguments of  Dworkin, Phillips and Young have not provided us with a solution to the  objection against quotas that they will lead to the enforced employment  of ‘non-optimal candidates’ for high-skill positions key to the  corporate board setting.

Here I want to look a little closer at each of their theoretical  perspectives and perhaps get to the crux of why we can’t extend their  arguments to provide a solution to this particular problem.

‘Equality of Resources’

Dworkin’s Equality of Resources theory is a very extensive and  complex theory aimed at justifying large-scale insurance-based  redistributive state welfare according to one’s bad luck.[vii]  For the purposes of this piece however, I want to single out a core  element of Dworkin’s theory – the ‘Principle of Independence’.  The  Principle of Independence requires that we find a way ‘to place victims  [of prejudice] in a position as close as possible to that which they  would occupy if prejudice did not exist’ an objective which chimes with  the objectives of anti-discrimination and equality policies as well as  COM 614.[viii]  Bearing this claim in mind, let’s think back to the protected  characteristics defined in the 2010 UK Equality Act, (age; disability;  gender reassignment: marriage and civil partnership; pregnancy and  maternity; race; religion or belief; sex and sexual orientation), all  these groups can legitimately claim they have suffered prejudice.  However, there is nothing in the Principle of Independence that enables  Dworkin to distinguish between groups (all of which have suffered  prejudice), for particular interventions in particular contexts.

In line with the aims of the UK Equality Act 2010, let’s assume  (without much difficulty) that we can empirically show that injustice  negatively affects the livelihoods of the protected categories. Does  this mean, then, that under the Principle of Independence we should aim  to compensate any group who has suffered prejudice and has little  presence on corporate boards? If we introduce female quotas for  corporate boards, should we not introduce sexual orientation quotas, age  quotas, religious quotas, gender reassignment quotas and so on for  corporate boards also? This seems a step too far and alongside the  argument against quotas breeding mediocrity, it is the most challenging  objection to quotas. What might Phillips and Young offer by way of  alternative?

Equality of outcome and workplace democracy

Both Phillips and Young advocate some form of ‘equality of outcome’  (Phillips, 2004; Young, 1990) in the sense that they both focus on the  integration and presence of groups as a proxy for satisfactory equality  of opportunity.

Both hold that stark disparities, such as our example of extreme sex  segregation on corporate boards, demand intervention and correction.  Indeed, Phillips supports the view that ‘[t]here might be some  minor and innocent deviations, but any more distorted distribution is  evidence of intentional or structural discrimination. In such contexts (that is, most contexts) women are being denied rights and opportunities  that are currently available to men. This is a prima facie case for  action’ (Phillips, 1995, p. 63). However, Phillips does not specify the sort  of action we might adopt to correct patterns of sex inequality once we  leave the realm of political representation within a democracy. So,  what does Young have to say?

Whilst generally appreciative of the objectives of quotas, Young  nevertheless views them as having ‘only a minor effect in altering the  basic structure of group privilege and oppression . . . [s]ince these  programmes require that . . . sexually preferred candidates be  qualified, and indeed often highly qualified’ (Young, 1990, p.199).   Young’s contention is that justice ought to demand a much wider focus on  all oppressed social groups, by which she means those who similarly  experience structural injustice.

What does Young mean by this? Young sees structural injustice as the  result of social-structural processes which she describes as follows:  ‘(1) As objective social facts experienced by individuals as  constraining and enabling; (2) as a macro social space in which  positions are related to one another; (3) as existing, however, only in  actions; and (4) as commonly involving the unintended consequences of  the combination of the actions of many people’ (2011, p. 53). Here we  can see how structural injustice fits well with corporate cultures and  institutional biases which may well lead to sex segregated corporate  boards: (1) the inability of women to progress to senior positions is experienced as a social fact; (2) employees each experience relational  segregation in the labour market, sector, work-place as (macro) social  spaces – who occupies which sort of status level, occupation etc.; (3)  such a social fact has the potential to be altered as the result of  alternative actions; (4) such a social fact is the result of the accumulated actions of other workers, managers and other actors (often  unintentionally so).

Structural injustice is particularly interesting for my purposes  because it describes a phenomenon not easily picked up by  anti-discrimination laws that tend to focus more on discriminating  agents rather than amorphous, perhaps unintentional, collections of  traditions, trends and attitudes which do not necessarily and directly  intend to exclude but nevertheless do – and certainly would not be  captured by Pojman’s account of ‘rough justice’. So how would Young go  about combating structural injustice?

What is needed, Young argues, is a much more radical approach aimed  at the general structure of group privilege and oppression within  employing institutions and across society. Such an approach should be  based on a model of workplace democracy and includes the idea that  workers and social groups within a given organisation should be able to  participate in ‘top-level decisions through a system of representation’  and to ‘decide democratically the qualifications for jobs and who is  qualified for them’ (p. 224).  On this account, the structures of  corporate organisations would be altered in such a way as to guarantee  that there would be ‘no top executives with initiating and final authority over the operations of the enterprise’ [ix]  and women and other oppressed social groups would be less likely to be  excluded from key positions which have traditionally been dominated by  white males (such as corporate boards).

Some version of this practice seems appealing to address the vast  inequity between people’s opportunities to democratically influence who  is selected for the most powerful institutional posts, and decisions  that affect us all. Young’s caveats notwithstanding, it is nevertheless  hard to imagine how the practicalities of this would play out to effective ends.  Challenges that come to mind are not only that the  number of staff employed by large competitive multi-nationals run into  the hundreds of thousands and are situated across many different  countries but also, more simply, that it would be difficult to guarantee  that democratic debate would be justly translated into actual decisions. Whatever the number or variation of perspectives at play in  democratic decision-making, selection criteria, and appointment of high  ranking personnel, it is not clear that effective outcomes would  necessarily follow.  While selecting decision-makers on the simple basis  that they represent a social group (e.g. sex) may well improve the  chances that such a group will not be overlooked or discriminated  against, it does not necessarily mean such a representative is  well-equipped to also make good strategic decisions at the highest  levels.  Young makes it clear that, for her, a strong form of democracy  is crucial for just decision-making and therefore trumps whatever unfortunate hindrances accrue as a result (Young, 1990, p. 189).  Consequently, she does not provide a route for overcoming the objection  that direct external intervention into selection processes could result  in ‘non-optimal candidates’ for high-skill positions (which on her  account would be the selection of social group representatives instead of quota candidates).

It should be clear that I am not disputing Young’s analysis of the  structural division of labour or her claim that workplace democracy  lends itself, hypothetically at least, to a more just labour market and  society.[x]   I merely wish to assert that Young has not overcome the most testing  challenges to a policy of direct intervention into employing  institutions.

Alternatively, I want to offer a simple idea that comes from this  analysis of Dworkin, Phillips and Young’s work.  I call this the  “Critical Mass Marker Approach” and suggest that it goes some way to  provide a sharper mechanism not only for identifying suitable candidates  within a group selected for a certain kind of quota but also for distinguishing between groups who have all suffered prejudice but for some of whom, nevertheless, quotas are not appropriate in a given context.

A mechanism for distinction: ‘Critical Mass Marker’

Usually ‘critical mass’ is understood to be an objective of  policy and carries with it a sense of a process that is self-sustaining  and which, once begun, requires no further external impetus.  Often 30%  is identified in Critical Mass Theory as the threshold percentage of  female representation necessary to improve the culture and practices of  male-dominated political assemblies. Unsurprisingly there is much debate  on whether 30% is the most effective threshold and whether or not such  an approach has sufficient impact.[xi]   The Critical Mass Marker Approach I wish to sketch here, however, is  distinct from Critical Mass Theory.  Whereas Critical Mass Theory rests  upon assumptions regarding the consequences of achieving certain degrees  of representation at a given hierarchical level, the Critical Mass  Marker Approach is about identifying situations where a disproportionate  number of women exist at the level beneath that in question and yet the  natural progression towards higher levels in the institution that one  might expect to see does not materialise – where there is, in other  words, a ‘thwarted critical mass’.

To turn to our example of the corporate board, there are over 2550 women at senior manager level in the FTSE (Vinnicombe et al., 2010; Sealy and Vinnicombe, 2012).[xii]  These women are ‘strong candidates’ for corporate board status –  suitably educated, already accustomed to the sometimes-extreme working  patterns of the corporate world and primed.  As we so often see reported  in the FTSE Female Reports and related studies, there is much  frustration that too few of these women are moving up from the very  senior management levels to the corporate board context.  Unfortunately,  there is very little data publicly available at the individual company  level – how many women and men are in which pay grades and at which  level within a given private sector organisation? But still we can  imagine the scenario where a critical mass marker would work. If it were  the case that a persistent critical mass marker existed (that is a  disproportionately large cluster of women  – or indeed any other group –   just under the context in question) at any level within  an employing organisation (or indeed at its borders) then quotas,  tailored proportionately to each context, could be applied. This would  be an alternative to the blanket quota of 40% currently proposed for  only the very highest level – the corporate board. The levels at which  quota numbers would be set would depend upon the size of the relevant  critical mass markers. Accordingly proportionate quotas would be set  according to the particular segregation patterns of each institution (or  collection of institutions) and in collaboration with and subject to a  state-level regulative body.

A further and crucial feature of this approach is that wherever a  critical mass marker is identified and a quota set the responsibility  must legally lie with the institution to ensure that the quota is met. Failure  to do so would require explanation by the institution on a case-by-case  basis to the relevant regulative body. The burden of proof, that is,  lies with the institution to successfully defend its segregation  patterns against the critical mass marker. The Critical Mass  Marker Approach would then ensure, at the very least, that people who  are equipped with the relevant skills and experience are able to move up  and across institutional structures irrespective of characteristics  such as race or sex which might otherwise render them subject to  structural injustices – a social fact many workers find themselves  facing in the modern workplace even if as a consequence of unintentional  actions of their peers and seniors. The focus of such a policy effort  would also be much wider than simply corporate boards at the very top  ends of organisations – but all workers across the whole of their  employing institutions.

Overall, the Critical Mass Marker Approach could be a much more effective and proportionate  response to each institution’s (or collection of institutions’)  segregation patterns than blanket quotas aimed only at boards.   Furthermore, the Critical Mass Marker Approach provides a clear  objective for equality that requires specific actions whereas positive action as set out in the Equality Act 2010 merely provides a mechanism that is only rarely invoked through individual court action or is too often avoided under schemes of institutional voluntarism.[xiii]  A critical mass marker has the advantage of indicating institutional  biases and cultural prejudices (structural injustices) that can neither  be reduced to chance-based explanations on the one hand, nor to the  actions of an individual on the other. As such, policy based on the  Critical Mass Marker Approach would have to be administered in tandem  with wider-reaching equal opportunity policies [xiv]  and anti-discrimination legislation that is more focused on agent  culpability. It is vital to clarify, however, that the argument here is  not that where there are absences of a particular group but also no  critical mass marker that this would not indicate a situation of grave  moral importance. One can think of lots of examples (not least from  Phillips, Young and Dworkin) where this might be the case. Indeed, in  some ways, the absence of a critical mass marker may be indicative of an  even deeper or wider level of injustice (such as those stemming from  class or education) – and such injustices may justify a degree of  co-ordinated social action (including quotas) beyond that implied by the  Critical Mass Marker Approach.

The Critical Mass Marker Approach is rather intended to identify and  offer justification for action for the most obvious cases of structural  injustice but at the same time avoids the most challenging objections to  quotas that were not addressed by Dworkin, Phillips and Young. In the  case of Young and Phillips, neither provides a mechanism for restricting  action to suitably skilled candidates. As illustrated, their call to  action relates simply to an absence of group representation, leaving  open the possibility of disproportionate levels of action (which might  include a high blanket quota such as that drafted by the European  Commission) aimed at individuals who, whilst having suffered from  prejudice and injustice, are not necessarily strong candidates for  particular remedial actions in particular contexts. A similar problem  follows from Dworkin’s Principle of Independence, which is no more  discerning. Dworkin’s Equality of Resources, which depends wholly on the  Principle of Independence to protect against prejudicial treatment, has  no mechanism for selecting which individuals, endowed with the  protected characteristics, should be eligible for action in which  contexts.

In conclusion, it is clear that we need to think hard about how to  generate new public policy approaches to persistent segregation patterns  and injustices. I suggest the Critical Mass Marker Approach as a more  productive and proportionate quota model than current policy proposals  and also as a useful analytical device for detecting structural injustice and justifying intervention.