This summer, the SEC approved NASDAQ’s proposed diversity-forcing listing-requirements, arguably joining the chorus pushing corporations to “go woke.” But other bodies of law warn them not to. Facing the resulting lack of clarity, what should law-abiding corporations and shareholders do?
Start with the first side. In 2017, Colorado passed a toothless resolution supporting greater corporate board diversity. In 2018 and 2020, California passed laws requiring some corporations to allocate directorships based on race, ethnicity, sex, gender, and disability status; those laws have been tied up in litigation ever since. Then, with some minor discrepancies, Maryland (2019), Illinois (2019), and New York (2020) each required companies to track and disclose the identitarian-statistics for their directors, uncoupled from any California-style mandate.
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