The Critical Mass Marker Approach: Female Quotas and Social Justice
| Date | 01 December 2014 |
| DOI | 10.1111/1467-9248.12045 |
| Published date | 01 December 2014 |
| Author | Jude Browne |
| Subject Matter | Article |
The Critical Mass Marker Approach: Female
Quotas and Social Justice
Jude Browne
University of Cambridge
In this article I explore the theoretical and policy implications of direct state intervention into the constitution of
corporate boards as a means to addressing institutional gender injustice. I consider the work of three prominent
thinkers on affirmative action and institutional injustice,Ronald Dworkin, Anne Phillips and Iris Marion Young, and
present an argument in favour of a specific form of state-administered female quota model which I shall call the
Critical Mass Marker approach. I argue that this is a more refined and effective approach to institutional gender
injustice than current affirmative action models.
Keywords: gender; state policy; quotas; institutional injustice; political theory
[T]here are good reasons in terms of efficiency, motivation,and rough justice for holding a
strong prima facie principle of giving scarce high positions to those most competent (Pojman,
1998, pp. 97–115).1
Across Europe the question of whether state-administered female quotas should be
enforced on the highest ranking corporate positions as a means to combating gender
injustice is under vigorous discussion. Dissatisfied with the long-observed efforts of listed
companies across Europe to increase the number of women on their boards, the European
Parliament and Council has issued a draft Directive (COM 2012 614) which would place
a binding obligation to secure a minimum of 40 per cent female board members.2Norway
and France, for example, have already enforced quotas for corporate boards with some
striking results.3Italy,Austr ia and Belgium have recently followed suit while the UK has
argued emphatically against.4The UK’s private sector has a strong aversion to state
intervention, arguing that it is itself far better equipped to craft intricate and tailor-made
institutional practices in place of the blunt tools of the state.These, so the argument goes,
are not only disproportionate to most problems internal to a private sector company but
also serve to constrain competitiveness essential to the nation’s chances of improved
prosperity.With the aim of contributing to both political theory and public policy debates,
this article considers whether and to what ends enforcement of female quotas can be
justified in private sector board positions.
My argument is organised into four main sections. First, I will begin with a point of
clarification about the terms I use and provide a very brief empirical overview of women’s
standing on UK corporate boards and the relevant legislation so as to provide context.This
raises empirical and legal issues which prove helpful for the subsequent theoretical explo-
ration. Second,I shall consider a number of arguments sur rounding affirmative action and
institutional injustice which have been developed within political theory. In particular, I
consider works of Ronald Dworkin,Anne Phillips and Iris Mar ionYoung,who all defend
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doi: 10.1111/1467-9248.12045
POLITICAL STUDIES: 2014 VOL 62, 862–877
© 2013The Author.Political Studies © 2013 Political Studies Association
some form of affirmative action or representation of oppressed social groups. I begin by
drawing out elements of these arguments which I see as useful for the construction of a
defence of female quotas for the corporate context. In the third section I considerYoung’s
critique of Dworkin’s theory of redistributive justice, a critique shared by Phillips. While
this is persuasive, an exploration of Young’s alternative approach,‘workplace democracy’,
and Phillips’ call to action demonstrate significant limitations when applied to the example
of the corporate board. I conclude that what seems to be missing is a sufficiently refined
mechanism for distinguishing between candidates for programmes of intervention. In the
fourth section, I offer such a mechanism, which I shall call the Cr itical Mass Marker
approach.A critical mass marker refers to those situations where a disproportionate number
of a certain group are clustered just beneath the level under investigation within a given
institution (such as the corporate board for example) and where there would appear to
be sufficient preconditions for natural progression to occur, yet for some reason it does
not happen – there is, that is, a thwarted critical mass. I shall argue that a critical mass
marker is not only a strong indicator of structural injustice but also provides sufficient
conditions for when a policy such as quotas might be appropriate and for whom –an
important element missing in both practical and theoretical debates surrounding affirma-
tive action.
Terms and Conditions
Before beginning my specific discussion of quotas,I wish, in this section, to clarify the terms
I will use and set out a brief example of corporate board sex segregation in order to
illustrate the particular context under scrutiny.
A Note on Terminology: Female Quotas,Affir mative Action and Positive Action
Some writers, particularly those in the US, use the term ‘affirmative action’ to mean
specifically ‘quotas’. I shall use both terms interchangeably. Others distinguish between
strong affirmative action (which they mean to describe quotas) and weak affirmative action
(which they mean to describe, and what I shall refer to, as positive action).While quotas are
not currently permitted under UK law, equality and anti-discrimination laws have been
recently supplemented with the introduction of positive action provisions in the 2010
Equality Act (s. 158, s. 159; see also Hepple, 2011).The details of these provisions provide
us with a set of characteristics that are useful for theoretical discussion.
Under the Act,and distinct from quotas, positive action is permitted in relation to actual
candidates for a particular job or promotion as opposed to setting impersonal targets which
prescribe the employment or promotion of people endowed with a certain characteristic
(e.g. race or sex). Positive action in this context means that employing institutions are
permitted to adopt ‘special measures’ aimed at alleviating disadvantage or under-
representation experienced by those with any of the ‘protected characteristics’. These
specified protected characteristics are as follows: age; disability; gender reassignment; mar-
riage and civil partnership; pregnancy and maternity; race (including ethnic or national
origins, colour and nationality); religion or belief; sex; and finally, sexual orientation.These
characteristics can be invoked,for example, as a reason for an employer to favour one person
with a protected characteristic over another job candidate who does not have the protected
FEMALE QUOTAS AND SOCIAL JUSTICE 863
© 2013The Author.Political Studies © 2013 Political Studies Association
POLITICAL STUDIES: 2014, 62(4)
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