Forty Years After Title VII: Creating an Atmosphere Conducive to Diversity in the Corporate Boardroom

In the forty years since Congress passed Title VII of the Civil Rights Act of 1964,1 there have been significant changes in the landscape of American workplaces, schools, colleges, and universities, and in the number of economic opportunities to contract with government agencies. During that time, women have entered many areas of public and private employment in a steady, increasingly significant fashion. Affirmative action programs have accounted for a great deal of the increase in the number of women and minorities in the workplace. While such programs have always been controversial, they have also spurred inclusiveness in educational settings and government contracting.2This article analyzes affirmative action in employment: one of the most controversial government policies of the last decade, and one that continues to divide the passions and sensibilities of Americans. This article also addresses the effects of Title VII on employment opportunities for women. In particular, the article considers how successful the fundamental policies of Title VII have been in increasing diversity on corporate boards of directors, and investigates whether increased diversity will improve the performance of publicly traded companies.The Sarbanes-Oxley Act of 20023 (SOX) reflects public outrage at highly publicized corporate excesses and, more fundamentally, indicates widespread public disapproval of corporate boards' composition, lack of independence from management, and poor internal and external controls over corporate financial reporting and integrity.4 Improved gender and racial diversity of corporate governing boards would enhance SOX's fundamental policy of increased integrity in the management of large corporations through greater independence and competence of their directors. In this regard, the congruence of the policies of national employment opportunities and national economic policy favors increased opportunities for women and minorities and promotes greater corporate governance by independent and competent directors.This article proceeds as follows: the first part briefly describes federal governmental affirmative action policy in the areas of employment, government contracting, and education, explaining how affirmative action plans have increased employment opportunities for the intended beneficiaries of the legislation; the second part discusses current issues in the application of affirmative action policies in employment relationships and examines the rates at which women and minorities have risen to leadership positions in settings outside the direct reach of Title VII. This part of the article addresses the issue of whether Title VII-with its avowed purpose of promoting fair employment practices and increased inclusion of women and minorities in the workforce-has been successful in extending the quality and scope of economic opportunity to those formerly un-enfranchised members of American society. This part of the article also demonstrates that the roles of women and minorities on the boards of publicly-held corporations have not significantly expanded, even given the pervasive application of Title VII to other sectors of the economy. The final part examines the impact of national economic policy on effectively managed corporations, and considers whether greater diversity on corporate boards advances national economic policy. In particular, this part of the article examines the policies underlying federal corporate law embraced by SOX, and concludes that greater diversity on corporate boards of directors helps to realize those policy initiatives.I. GOVERNMENTAL AFFIRMATIVE ACTION POLICIESTo understand the policies underlying the Civil Rights Act and the employment provisions contained in Title VII, it is necessary to review briefly the history of affirmative action policies and of the overarching fight against paternalism for equality of opportunity. The first section describes the movement of national policy from "separate but equal" treatment of the races to equality. …