A French feminist activist, Françoise Giroud, famously declared forty years ago: "Women will have gained equality only when incompetent women reach positions of power". If the career gap between men and women has certainly narrowed as compared to when women entered the employment market after WWII, both genders are still far from being on equal footing and the above mentioned quote still sounds relevant.
How are equal opportunity rules implemented and construed in France, given the cultural particularities of this country?
Equality, a sacrosanct principle in the French legal system, has always occupied a prominent place in France. First embraced in the 1789 Declaration of the Rights of Man and the Citizen, according to which "Men are born and remain free and equal in rights," it is solemnly affirmed in the Republican motto "Freedom, Equality, Brotherhood." The Preamble to the Constitution of 1946 also deals with gender equality and provides that "the law guarantees women equal rights with men in all fields." The current Constitution of the Fifth Republic of 1958 provides that "the law shall promote equal access of women and men to electoral mandates and elective offices, as well as to professional and social responsibilities."
Since then, gender equality has been part of the French constitutional identity. However, until recently, the concept has been more on the basis of "in an equivalent situation, equivalent treatment," so that no outright discrimination was to be tolerated. However, the legislature showed itself in favor of a sort of "affirmative action". Very early on, the Constitutional Council stated that "the principle of equality does not prevent the legislature from regulating different situations in a different way, or derogating from equality on grounds of public interest provided that, in either case, the resulting difference in treatment serves the purpose of the law establishing it1." In other words, even reverse discrimination in the name of equality might be justified.
For decades, women were fighting for their civic and political rights. More recently, they have been fighting for professional rights and recognition, such as equal pay, equal opportunities, and seeking higher responsibilities and access to leadership bodies. This seems to have been justified, as statistics reveal that the gender pay gap was more than 9% in France in 2014 for the same jobs, 25 % for all jobs considered2, and 14% in the private sector3. Worse still, 100% of the CEOs of the "CAC 40" are men4. Access to leadership bodies, such as boards of directors, is still a serious challenge for women in France.
In recent years, France and the European Union have called for a better representation of women in leadership positions in an effort to fight lingering gender inequalities. The European Parliament adopted a first resolution in July 2011 on "Women and Business Management." This resolution called upon the European Commission "to present as soon as possible a comprehensive overview of the representation of women in business in the European Union," and it invited the Commission, "in the event of insufficient voluntary measures taken by companies and Member States, to present, by 2012, a legislative proposal containing quotas, in order to increase the representation of women in company management bodies with a view to achieving 30% by 2015 and 40% by 2020."
This is also the mission that the French legislature has assigned to itself for several years. The High Council for Equality between Women and Men was created in 20135 in order to monitor the impact of policies in the field of women's rights and equality between women and men. It is finally in this context of converging aspirations and remaining inequalities that gender equality has been promoted as a "major cause" of President Emmanuel Macron's five-year term6.
The question now is whether gender equality on boards and in leadership positions is ensured in France? Can the legal arsenal of the current reverse-discrimination actually be counterproductive for women's representation on boards? Are alternative solutions through a priori measures more appropriate?
This paper will briefly look at (I) soft and hard laws in France in terms of women's representation in leadership bodies and on boards of directors, (II) the current status and results on the ground in France, and (III) social policies as an alternative option that enables to tackle the roots of the issue.
I. Attacking the glass ceiling with soft law, hard law and the gender pay index
Soft law: no legal sanction but potential reputation damage in case of non-compliance
The trend for soft law, relating to good conduct rules and governance codes in all areas of business, is growing. In France, the soft law is embodied by the Afep-Medef Code applied by major companies7 since 2008. These are a set of recommendations drawn up by the French Association of Private Businesses (Afep) and the French Employers' Association Code (Medef) after consultation with the various market players. The Afep- Medef Code addresses corporate governance in all aspects, including, among others, the composition of the boards of directors and executive compensation.
This Code contains a recommendation8 that "each board should consider the desirable balance of its composition and that of [its] committees". To this end, it provides that "the objective is for each council to achieve and maintain a percentage of at least 20% women within three years and at least 40% women within six years....When the board is composed of less than 9 members, the difference at the end of the 6 years between the number of directors of each gender may not exceed 2."
Notwithstanding such requirements set out in the Afep-Medef Code, and this is the main criticism addressed to soft-law: no sanctions are provided. The Afep-Medef Code, which follows the principle "comply or explain," only requires companies to explain in their annual report why they do not apply such a rule.9
However, "reputational capital," as some authors have pointed out, must be preserved; this is why companies often eventually choose to be compliant. Soft law has the potential to be as effective as hard law because companies may fear a market sanction, a sanction from investors or customers, or even the media sanction – "name and shame" - which can be more damaging than a pecuniary sanction.
Hard law: a necessary evil?
In France, the concept of affirmative action is suspicious because it breaches Article 1 of the Constitution according to which each and everyone is equal before the Law. This equality principle is broadly understood as the cement of the French Republic, and any attempt to circumvent this principle with exceptional measures is usually criticized. Holding to the ideal of "egalitarianism", France prides itself on making no distinction of gender, ethnic background or race.
In this context, Congresswoman Marie-Jo Zimmermann proposed to establish a quota for the seats on the board of directors to be occupied by women,10 thereby following the popular Norwegian example. However, this proposal, voted by Parliament, was later rejected by the Constitutional Council as unconstitutional11 because it violates the principle of equality before the law.
A revised version of this proposal, the so-called "Coppé-Zimmermann" Act of 27 January 201112, remedied this situation by providing for a balanced representation, this time with quotas for both genders as opposed to only women. The law provides that for companies with 500 or more employees and a turnover of € 50 million or more, and also for the public sector (public companies, industrial and commercial undertakings and public institutions), an objective of 40% of women or men on board with over 8 members, or a maximum gap of 2 between the number of men and women on boards with 8 or fewer members, must be achieved. This balance is being achieved gradually. It was expected that the bodies concerned include at least 20% women by 2015. This goal was almost achieved.
Boards of directors that did not include any women at the time of promulgation of the law were required to appoint one within six months. In 2017, six years after the promulgation of the law, the rate of feminization of women in senior management should reach 40%. The violation of these quotas will result in the nullity of new appointments to the board (except those of the under-represented gender)13. In addition, a financial sanction mechanism has also been provided for, including the possibility of a temporary suspension of "attendance fees" (remuneration for participation on the boards of directors).
After the Coppé-Zimmermann Act, a 2014 Act "For Substantive Equality Between Women and Men" (the "2014 Act") provided that companies with more than 500 employees that did not respect equal pay between women and men could be denied access to public contracts. It provided for breaking the glass ceiling and accelerating equal access for women and men to senior management, public institutions and companies. It became an obligation to include 40% women in the flow of appointments to senior management positions in the State. By 2020, boards of directors of large companies (250 to 499 employees and more than €50 million in turnover) will have to include 40% of women. The place of women in public administrative and industrial and commercial institutions of the State will be strengthened.
More transparency with the recent obligation to publish the gender pay gap
Most recently, the 5 September 2018 Act imposes the publication of a gender pay index by companies. Five components are taken into account in this respect: the gender pay gap (out of 40 points), the gap in annual increases (20 points), the gap in promotions (15 points), increases on return from maternity leave (15 points) and finally the presence of women among the company's highest wages (10 points).
This legislative framework applies gradually and according to certain thresholds: first, companies with more than 1,000 employees have until March 2019 to publish their index; next, those with more than 250 employees and less than 1,000 employees have until September 2019, and finally, companies employing between 50 and 250 employees have until March 2020.
If the company obtains less than 75 points on the index, it will have to implement corrective measures to reach at least 75 points within the next 3 years. Companies that do not publish their index or do not implement a correction plan when necessary are exposed to a financial penalty of up to 1% of the payroll. Similarly, companies will have to reduce wage gaps within 3 years; otherwise they will be exposed to the same penalties14.
These new requirements give an increased transparency to the corporate employment gender ratios. Now there is "an obligation to achieve results," says the French Minister of Labor.
Financial sanctions v. digital reputation
Financial sanctions for large companies are generally not that much of a deterrent anyway because they can usually be paid off without major difficulty. The media sanction may be a more forceful alternative penalty. In times of social networks and hyper-information, there is a certain form of self-regulation of the mechanism, since the sanction will eventually impose itself on companies that do not respect the quotas.
The so-called "Social Network Court" is feared by companies that could be subject to boycotts. In addition, the Internet gives an international dimension to the reputation and image sanction that a company may suffer.
II. The results: the glass ceiling is cracked but not shattered
In France, the feminization of spheres of power actually represents quite a radical social transformation from what has always been considered the "Old Boys Club Culture." What has the legislation achieved so far?
Almost equal representation on boards of directors
The number of seats held by women on boards of directors rose from 16.5% in 2010 (before the 2011 Act) to 34.1% in 2015 and 42.3% in 2018 for CAC 40 companies. Vivendi has even succeeded in having a feminized board of directors, reaching 54.5%. Even higher were Sodexo,15 Kering, Ipsos and CGG with 60% women on their Board of Directors16. In 2018, compared to other countries, France ranks first in Europe in terms of board's feminization17.
For companies of the SBF 120 -- that includes the major public companies -- the evolution is also notable even if more modest: it went from 12.5% in 2010 to 32% in 201518.
However, the case of Sodexo (among others) illustrates the limit of the system: now Sodexo at 60% women and 40% men on its board of directors cannot appoint more women on its board or they will not meet the minimum quota of 40% per gender (here, men) imposed by law.
Women remain underrepresented in the management committees of large companies and in the positions of Executive Officer or President
While quotas have helped women to access boards dominated by male presence, women remain under-represented in leadership positions, such as executive or management committees. In France, women hold only 17.9% of such positions in the SBF 120. Ten percent are general managers or chairwomen of the management boards, five percent are board chairwomen.
Only one woman is CEO: Christel Bories at Eramet. To date, only one woman is chairman of the board of a CAC 40 company: Sophie Bellon at Sodexo.
The 5 September 2018 Act aims to address this situation. This law obligates companies to respect equality in what is commonly referred to as "comex," the executive committees composed of the company's main executives.
The Act applies a diversity policy to boards of directors, setting out "criteria such as age, gender, qualifications and professional experience, as well as a description of the objectives of this policy, its implementation procedures and the results obtained during the past financial year. This description is supplemented by information on how companies must seek a balanced representation of women and men on the committee, [particularly] in terms of gender balance in the 10% of positions with higher responsibility. If the company does not apply such a policy, the report shall include an explanation of the reasons for it."
The results are difficult to anticipate at this point, but we can expect that women will rise to these positions formerly dominated by their male counterparts in the same way as has happened for the boards of directors and supervisors.
III. Addressing the roots of the issue with social policies
Access for women to important and key positions in various corporate bodies is a key issue. Nevertheless, focusing on the final stage, i.e., the percentage of women in these positions, fails to address the complete issue. The ambition of quota policies is to support professional women who already are close to the top. Social policies that make it possible for working mothers to juggle with their career and family offer a broader and more efficient approach.
Are women shattering the galls ceiling only to fall off the glass cliff?
The glass cliff is the phenomenon of women making it to the boardroom but finding themselves in untenable, inherently unstable leadership positions from which they could be ousted with evidence of apparent failure. Women in top leadership positions seem to be routinely handed inherently unsolvable problems. It is all very well promoting women into the boardrooms, but failing to support them when they are there is equally damaging.
In addition, a certain number of women suffer from impostor syndrome. This is the idea that successful people feel that they have become successful through luck, not their own hard work or ability. Sitting in the boardroom as a result of a quota being imposed on the company certainly enhances the impostor syndrome.
One of the possible explanations for a glass cliff scenario is that organizations simply fail to consider that women in leadership positions are likely to need a different kind of support in their new role. Helping to create gender parity in boardrooms is widely shown to be beneficial on multiple metrics. However, if organizations aren't keeping good people in the boardroom because of failure to appreciate individual differences, then this last hurdle arguably undoes all of the good work that quotas, all-female shortlists, and gender pay gap reporting strives to achieve.
Quotas, a band-aid on a wooden leg? Equal opportunity v. equality of results
If the real issue is getting competent women to leadership positions with equality of treatment, hours, pay and respect of status, it could be asked whether coercive measures such as the ones mentioned above are the most effective means to the end. What if pedagogy were favored over forced affirmative action? What if we apply a priori measures instead of a posteriori measures?
This is the difference between equality of means and equality of results. The latter directly determines the result to be achieved without considering how to get there, whereas the former determines the means to achieve it. Equality of means would not impose a sanction in itself but rather a pedagogy and support for companies to implement a set of means to achieve a result.
If policy makers want to enable women of all income and educational backgrounds to enter the workplace and advance, thereby developing a pipeline for future leaders, affordable and universal child care, progressive parental leave available to both mother and father and opportunities to work flexibly must form the core of a wide-reaching policy agenda.
Countries that have affordable and high-quality child care systems, such as the Scandinavian nations or France, tend to have higher maternal employment rates, paving the way for women's advancement. Paid parental leave and flexible work policy - such as home office - with genuine choices for both parents can also be a retention tool that, by offering mothers and fathers the ability to work and to care, aid women's long-term prospects and advance the goal of gender equality more generally.
There is no single answer to the question of how best to support women's ascent to leadership positions. Different women have different opportunities and constraints. The direct approach of quotas, currently being used in many European countries, works to increase the visibility and representation of women on corporate boards. However, focusing too heavily on the representation of women at the top can distract from the need for wider progress for the vast majority of working women. Job advancement and economic security is important to nearly all women today, and the challenges facing most working women seeking to advance in their careers are not the same as the obstacles facing women close to the very top.
On their own, quotas have limited effectiveness when it comes to challenging inequality. Moreover, the goal of quotas is narrow: to support corporate leadership. This will certainly offer direct gains to some women, but it will not fundamentally change the reality of most women's lives.
Only when quotas are combined with family-friendly legislation will they be likely to achieve the more broadly goal of gender equality and equal opportunity for all.
5. Decree N° 2013-8 of 3 January 2013.
6. "The strategy is the concrete international embodiment of the President's commitment to make gender equality the great cause of his term," (https://www.diplomatie.gouv.fr/en/french-foreign-policy/human-rights/women-s-rights/)
7. Created in 1987, CAC 40 is the French stock market index that tracks the 40 most significant French stocks based on the Euronext Paris market capitalization.
8. Recommendation 6.3, consolidated Afep-Medef Code of December 2008
9. Article L.225-37-4, 8° of the Commercial Code.
10. Act N° 2006-340 of 23 March 2006 on equal pay for women and men.
11. Constitutional Council, Decision N°2006-533 DC of 16 March 2006
12. Act No. 2011-103 of 27 January 2011 n the balanced representation of women and men on Boards of directors and Supervisory boards and on professional equality
13. An amendment passed in the National Assembly, which also provided for the nullity of deliberations in cases of non-compliance with quotas, was deleted in the Senate
14. However, a period may be granted in the event of economic difficulties.
15. Sodexo was even rewarded for the feminization of its Board of Directors by the European Women on Boards and Ethics & Boards with the award of the "Woman chair prize".
18. High Council for Equality between women and men, Report n°2015-12-17-PAR-019 published on 10 February 2016
Originally published by American Bar Association.
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