By CultureBanx Team
- Fifth Circuit Court’s razor-thin 9-8 verdict crushes Nasdaq’s board diversity rules claiming SEC overstepped its bounds
- Companies with strong DEI energy flex 36% higher profitability than their less diverse competition
Wall Street’s second-largest exchange now faces a dramatic shift in its push for diverse board leadership representation. Nasdaq’s groundbreaking board diversity rules hit a major roadblock as the U.S. appeals court ruled that it could not impose rules requiring companies listed on the exchange to have women and minority directors on their boards or explain why they do not.
Why This Matters: Constitutional drama stayed backstage while statutory grounds stole the spotlight as the Nasdaq rules were challenged by the National Center for Public Policy Research and Alliance for Fair Board Recruitment. Fresh off the Supreme Court’s affirmative action shake-up in education, this ruling hits differently.
Corporate America’s DEI initiatives face mounting legal heat, with this decision turning up the temperature. Not to mention that critics have argued that the rule contradicts the equal protection principles of the United States Constitution, with quotas being particularly suspect constitutionally.
Nasdaq’s DEI board playbook demanded serious accountability moves. Companies with more than five board members were required to have two diverse directors. These organizations needed one woman plus another from underrepresented groups or LGBTQ+. Smaller companies running five or fewer board directors needed just one diverse voice to stay in the game.
Board Diversity Challenges: Boardroom demographics tell a story of progress and setbacks, CultureBanx reported. Black leadership peaked at 26% in 2021, sliding to 17% in recent counts. Women’s representation paints a complex picture, the C-suite still rocks a predominantly white vibe at two-thirds, while Black people claim 21%, Asians represent 7%, and Hispanic leaders hold down 4%.
Currently, nearly one-third of S&P 500 and Russell 3000 board seats are held by women. It’s important to note that diversity champions keep winning the money game. Companies with strong DEI energy flex 36% higher profitability than their less diverse competition.
“This ruling doesn’t stop companies from voluntarily showing their diversity cards to keep it transparent and inclusive,” said LDF’s Deputy Director Jennifer A. Holmes.
Alternative DEI Commitments: Ariel Investments Black Corporate Study report found that 37% of board members do not believe that their board prepares organizational leaders for effective oversight of DEI through a structured onboarding and training process. Also, 55% of diverse directors surveyed said that their board is regularly overseeing the risks and opportunities related to potential impacts of their companies on communities of color.
Corporate boards in the S&P 500 have become more broadly racially/ethnically diverse over the past five years, from 20% in 2018 to 25% in 2023. Even though 75% of directors report that their companies are investing capital to support their racial equity and diversity goals, this statistic declined 7% from 2021.
What’s Next: Diverse boards are believed to offer a broader range of perspectives, leading to better decision-making and enhanced corporate governance. Studies suggest that companies with diverse boards are more likely to innovate and perform well financially, aligning shareholder values with broader social goals. The U.S. appeals court’s successful challenge to the Nasdaq’s board diversity rules underscores a broader shift within the stock market, trading, and business sectors and money talks and diversity walks.
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