DEI and Bylaws: Board Composition

As we’ve discussed in a previous post, one way to anchor diversity, equity, and inclusion (“DEI”) as a core value of an organization is to include DEI principles and language into an organization’s Bylaws. A common starting place for nonprofit corporations is the composition of the board of directors.

Each organization should determine for itself what its board diversity target is, how it plans to achieve it, when it plans to achieve it, and by what method (e.g., set numbers, percentages). However, for the purposes of this post, we will consider the following provision in an organization’s Bylaws:

At least 50% of the directors must be persons of color by 2020.

The provision above may be an early step in moving the organization towards operating consistent with its values. By requiring that a set percentage be achieved and maintained by a specified date, the board is demonstrating its seriousness at least with respect to achieving diversity on the board. Failure to achieve such requirement may be a breach of the Bylaws and arguably of the board members’ duty of obedience. But more importantly, ignoring such bylaw could create a serious internal and external public relations problem the board would want to diligently avoid.

However, in and of itself, even if well-intentioned, the provision above may be problematic. The board would be wise to consider each element of the goal and why and how each was determined:

Why persons of color?

Selecting one group of individuals can be seen as exclusionary to others. For example, was there a reason why gender, sexual identity, and/or disabilities were excluded in the effort to make the board composition more diverse? Additionally, it can be seen as failing to address particular segments of the chosen group. Was the term “persons of color” intentionally selected because of its broad application or does it fail to address the intended inclusion of more specific groups? For example, if a nonprofit tech organization with a 50% persons of color requirement achieved such target by increasing the number of persons identifying as Asian-American or Asian but still had no board members identifying as African-American or black or as Latino, would that be considered a success? Addressing the concerns raised by such questions will not be easy. For example, to address multiple diversity composition goals, it may be (1) impractical to set a different percentage goal for each of a large number of different groups of individuals and (2) unfair to expect that the selected persons should be responsible or capable of representing such groups’ perspectives and interests in a comprehensive way.

Why 50%?

Was the required percentage set to reflect the community served by the organization or the broader population, or was it set to address a particular issue facing the organization? Bringing on an individual to meet some racial identity quota can unintentionally further tokenism, and without thoughtful intention and careful planning, can fail to advance the organization’s equity and inclusion goals. So, a Board might consider, was the percentage set at a particular level to help address these issues? Is the organization’s investment in achieving this requirement well understood and sufficient to assure that the board is still focused on bringing in board members who will dutifully and diligently meet their duties and contribute to the organization’s advancement of its mission and values? This may include significant allocations of time and resources to build relationships; create, implement, and continually modify appropriate governance structures and DEI initiatives; educate the board and the leadership team; and develop smart communication strategies.

Why 2020?

Was this deadline set for a particular purpose? Was it practical in consideration of all the groundwork that should be done and investment required while working towards reaching the percentage requirement? If the organization fails to reach the required percentage, will there be any repercussions? Of course, the board could probably amend the Bylaws to change the requirement or just accept its noncompliance because of the unlikelihood of any legal consequences. But if such requirement was communicated to the public, that might not be so easy, by design. And maybe that results in some other action, such as another investment and expenditure on outreach or education, or a replacement of an officer or committee members.

Having meaningful conversations about DEI can be challenging and uncomfortable, but they are nonetheless imperative in moving diversity, equity, and inclusion goals forward. A board should be prepared to examine and carefully consider the “why” in any DEI provision it puts forth.

Additional DEI and Governance Resources

Leading with Intent: 2017 National Index of Nonprofit Board Practices

Where is Race on Your Board’s Recruitment Agenda? (BoardSource)

Principle 11: What’s Board Diversity Got to Do with It? (Independent Sector)

Awake to Woke to Work: Building a Race Equity Culture (Equity in the Center/ProInspire)