Board Diversity Issues Don’t Fade Away After 8 Seconds (or an IPO, Apparently)

Mar 8, 2017

Reading Time : 5 min

By: Kerry E. Berchem, Elizabeth Atkins, Law Clerk (not admitted to practice)

In spite of the company’s largely female user and revenue base, Snap’s public filings revealed that only one of its nine directors, Hearst Magazines chief content officer Joanna Coles, is a woman. We note that one director, Intel Security Group senior vice president Christopher Young, is African American, and that Ms. Coles and Mr. Young are two of the Board’s three lowest-paid directors, with Ms. Coles’ total 2016 compensation clocking in at about one tenth of Mr. Young’s. Since Ms. Coles’ stock options were less than 20% of the average annual stock awarded to the board’s highest paid director, the company’s IPO would have multiplied that gap. Snap claims that its SEC filings did not reflect a grant that Ms. Coles received in January 2017, but makes no claim about whether the grant brought Ms. Coles’ compensation in line with that of other directors.

Snap is not alone. Even before Twitter’s financial performance began to slip, its IPO was marred by disappointment about its entirely white, male board. Women hold only 20% of board seats at the largest U.S. public companies, including the last 100 technology companies to file for an IPO. Total women and minority board membership was only 31% in 2016 (a modest increase from prior years), and Deloitte estimates that women and minorities will not reach 40% representation on corporate boards until 2026. The Government Accountability Office calculates that it could take more than 40 years for men and women to have equal representation on corporate boards. This delay may be partly institutional, but it is also the result of overt bias among existing board members: a recent PWC study of Fortune 500 companies found that most of the men who make up those boards do not believe that board diversity improves company performance or board effectiveness. More than half believe that women should take fewer than 50% of board seats, and over a third believe that there are not enough qualified female candidates to fill those seats.

We have published on the importance of diversity in corporate boards before, addressing topics such as      how to get more women on corporate boards, increasing global public pressure on companies diversify their boards and recommendations for SEC diversity disclosure rules. And the link between diversity in corporate leadership and financial performance is increasingly clear. In 2015, McKinsey & Company found that boards in the top quartile for gender diversity were 15% more likely to outperform those in the bottom quartile, and boards in the top quartile for ethnic diversity were 35% more likely to outperform those in the bottom quartile. Among U.S. companies, every 10% increase in racial and ethnic diversity on senior executive teams correlates with a 0.8% rise in earnings before interest and taxes (EBIT). McKinsey attributes the improvement in performance to diverse companies’ ability to attract top talent, improve customer orientation, keep employees happy and make better strategic decisions. The Harvard Business Review notes that gender diversity among corporate boards leads to a professionalization of corporate board membership and a more formal approach to board succession planning.

As the business case for diversity becomes stronger, some countries have legislated the issue, mandating that women fill at least 30-40% of board seats. Norway, Spain, France, Iceland and Germany have made significant progress toward their markers, but other indicators of gender equality in business have lagged behind, including gender pay equality and women in executive roles. Still, the raw numbers make a compelling case for quotas: a 2016 study found that countries with mandated quotas had nearly double the average percentage of women on corporate boards. In contrast, the U.S. favors sunlight as the best disinfectant for leadership-level homogeneity: in June 2016, in response to public statements by Chair White, the SEC staff published a recommendation that the Commission strengthen its disclosure rules to require specific disclosure of corporate diversity policies and disclosure of the gender and ethnic make-up of boards and executives.

Independently, U.S. investors are making their own push for board diversity. State Street Global Advisors (SSGA), a money management firm with stakes in more than 3,500 companies, issued a statement this week promising to use its voting power to hold corporate boards accountable for improving gender diversity among their ranks. SSGA publicized its new policy with an art installation on Wall Street, where the iconic Charging Bull now faces an equally fierce and “Fearless Girl”. Several other leading funds, including Morgan Stanley Investment Management Inc. and T. Rowe Price Associates, Inc., support diversity proxy proposals that would ask companies to specifically commit to seeking board diversity; others avoid an explicit vote but push for diversity behind the scenes. Many U.S. companies are taking note of investor pressure and voluntarily adopting a 30% target for female board participation.

Ultimately, though, increasing diversity among corporate boards will require increasing diversity at every level of corporate leadership. A survey of Fortune 500 boards reported that nominating committees typically look to former CEOs for potential board candidates; a group that includes only 4% women and 1% African Americans. The Economist’s glass-ceiling index reports that women occupy just over a third of well-paid and high-status jobs and still make, as a group, only 85% of men’s earnings. To build diversity at the executive and board levels, companies must make diversity a priority at every level.

Happy International Women’s Day.

Share This Insight

Previous Entries

Deal Diary

June 27, 2024

On June 24, 2024, the U.S. Securities and Exchange Commission (SEC) published five new Form 8-K Compliance and Disclosure Interpretations (C&DIs) expanding the agency’s interpretations of cybersecurity incident disclosures pursuant to Item 1.05 of Form 8-K. In July 2023, the SEC adopted final rules with respect to cybersecurity incidents that generally require public companies to disclose (i) material cybersecurity incidents within four business days after determining the incident was material and (ii) material information regarding their cybersecurity risk management, strategy and governance on an annual basis. We wrote about the final cybersecurity disclosure rules here.

...

Read More

Deal Diary

February 12, 2024

The Securities and Exchange Commission (SEC) recently adopted final rules (available here; also see the fact sheet and press release) representing significant changes to  special purpose acquisition companies (SPACs), shell companies and the disclosure of projections. These rules aim to enhance disclosures, protect investors and align the regulatory framework for SPACs with traditional IPOs. The following summarizes the key aspects of these rules.

...

Read More

Deal Diary

October 4, 2023

On September 20, 2023, the U.S. Securities and Exchange Commission (SEC) issued a final rule amending the so-called “Names Rule” (found here) that is “designed to modernize and enhance” protections under Rule 35d-1 of the Investment Company Act of 1940. The final rule is part of the SEC’s holistic efforts to regulate environmental, social and governance (ESG) matters, and is the SEC’s latest attempt to curb greenwashing in U.S. capital markets. The amendments require registered investment funds that include ESG factors in their names to place 80% of their assets in investments corresponding to those factors, thereby extending to ESG funds the SEC’s long-standing approach of regulating the names of registered funds to ensure they are marketed to investors truthfully. Fund complexes with more than $1 billion in assets will have two years from the final rule’s effective date (60 days after publication in the Federal Register) to comply, while fund complexes with less than $1 billion in assets will be given a compliance period of 30 months.

Chair Gary Gensler said “[t]he Names Rule reflects a basic idea: A fund’s investment portfolio should match a fund’s advertised investment focus. In essence, if a fund’s name suggests an investment focus, the fund in turn needs to invest shareholders’ dollars in a manner consistent with that investment focus. Otherwise, a fund’s portfolio might be inconsistent with what fund investors desired when selecting a fund based upon its name.” The sole dissenting vote against the rule modification, Commissioner Mark Uyeda, said “[w]ith these amendments, the Commission overemphasizes the importance of a fund’s name, as if to suggest that investors and their financial professionals need not look at the prospectus disclosures.” Commissioner Uyeda also expressed concern that fund investors will bear the increased compliance costs associated with the rule change.

...

Read More

Deal Diary

May 31, 2023

As discussed in our prior publication (found here), the Securities and Exchange Commission (SEC) adopted amendments on December 14, 2022, regarding Rule 10b5-1 insider trading plans and related disclosures. On May 25, 2023, the SEC issued three new compliance and disclosure interpretations (C&DIs) relating to the Rule 10b5-1 amendments.

...

Read More

Deal Diary

May 24, 2023

On May 15, 2023, the Eastern District of California ruled that California Assembly Bill No. 979 (“AB 979”) violates the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment and 42 U.S.C. § 1981. As enacted, California’s Board Diversity Statute, required public companies with headquarters in the state to include a minimum number of directors from “underrepresented communities” or be subject to fines for violating the statute. AB 979 defines a “director from an underrepresented community” 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.”

...

Read More

Deal Diary

May 9, 2023

Update: On October 31, 2023, the Fifth Circuit granted the US Chamber of Commerce's petition for review of the SEC's share repurchase disclosure rules, holding that the SEC acted arbitrarily and capriciously in violation of the Administrative Procedure Act. The court directed the SEC to correct the defects within 30 days of the opinion. On December 1, 2023, the SEC informed the Fifth Circuit that it was unable to correct the rule's defects within 30 days of the opinion. On December 19, 2023, the Fifth Circuit vacated the SEC’s share repurchase disclosure rules.

...

Read More

Deal Diary

April 12, 2023

We have released our 2023 ESG Survey which includes a collection of reports reflecting on significant ESG themes and trends from 2022, as well as what we believe to be key developments for 2023.

...

Read More

Deal Diary

February 6, 2023

As companies begin preparing for the 2023 proxy season, we note that Institutional Shareholder Services Inc. (ISS) and Glass Lewis, the leading providers of corporate governance solutions and proxy advisory services, issued updated benchmark policies (proxy voting guidelines), which can be found here and here, respectively. The updated proxy voting guidelines generally focus on board accountability and oversight considerations and address topics such as climate accountability, board diversity, shareholder rights, corporate governance standards, executive compensation and social issues. What follows is a summary of the proxy voting guidelines published by ISS and Glass Lewis for the 2023 proxy season.

...

Read More

© 2025 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.