The Proposed Gender Equality Directive: Legality, Legitimacy, and Efficacy of Mandated Gender Equality in Business Leadership

Abstract

This article sets out to revisit the idea of mandated gender equality in the context of business leadership. In response to the slow pace at which female representation at management level is increasing, the EU has proposed the ‘Directive on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures’. In recent years, the normative thrust of the argument for gender equality in corporate decision-making has been fortified by compelling evidence as to the positive impact of female leadership on business performance. Despite the appeal of these arguments, an analysis of the experiences made with positive action historically and internationally yields mixed results, requiring a critical examination of quota instruments as a means to achieve gender equality. A review of the Union’s long-standing tradition of equality legislation and its more recent open approach to positive action shows that the rationale of the Directive is in keeping with the Union’s most fundamental principles. Whilst the Directive can face up to most objections raised in relation to mandated gender equality measures, this article argues that the Directive, as it stands, is inherently ineffective in addressing the causes behind women’s managerial under-representation. Examining these causes to their extent and social context, profound societal changes are called for which must precede and complement any legislative measure in order to achieve substantive gender equality both inside and outside the boardroom.