Emory Corporate Governance and Accountability Emory Corporate Governance and Accountability
Review Review
Volume 8 Issue 1
2021
How the Black Lives Matter Movement Enhanced Corporate How the Black Lives Matter Movement Enhanced Corporate
Governance in 2020 Governance in 2020
Blair Johnson
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Recommended Citation Recommended Citation
Blair Johnson,
How the Black Lives Matter Movement Enhanced Corporate Governance in 2020
, 8 Emory
Corp. Governance & Accountability Rev. 99 (2021).
Available at: https://scholarlycommons.law.emory.edu/ecgar/vol8/iss1/6
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JOHNSON_4.13.21 4/15/2021 11:16 AM
HOW THE BLACK LIVES MATTER MOVEMENT ENHANCED
CORPORATE GOVERNANCE IN 2020
INTRODUCTION
The year 2020 brought the United States’ ongoing issues of racial injustice
and police brutality to the forefront. With the deaths of Breonna Taylor, Ahmaud
Arbery, George Floyd, and countless other people of color, the Black Lives
Matter movement has focused on uprooting and dismantling systemic racism in
the United States.
1
During what may be “the largest movement in U.S. history,”
individuals and organizations are asking themselves what actions they can take
to combat systemic racism in the country.
2
Many corporations have chosen to
speak out and use their platform to raise awareness of the issues of racism in the
United States. Others have chosen to remain silent. The ones who have chosen
to use their voices have done so in ways such as posting statements on social
media or their websites.
Raising awareness by posting statements only goes so far. Tangible actions
to address systemic racism must follow. This Comment argues that corporations
should implement anti-racism strategies into practice after making anti-racism
statements during the Black Lives Matter movement. Additionally, the U.S.
Securities and Exchange Commission (“SEC”) should amend its rules to require
more diversity and inclusion efforts when corporate executives nominate board
members.
This Comment features five Parts. Part I is about the Black Lives Matter
movement’s connection with corporate America. Part II discusses where
corporations were years before the 2020 Black Lives Matter Movement with the
2009 SEC rules. Next, this Comment looks at legislation and rules that were put
in place right before the Black Lives Matter Movement, such as the 2009 SEC
rule amendment in 2019, the Improving Corporate Governance Through
Diversity Act of 2019, and the 2018 California Senate Bill 826.
Part IV discusses the impacts the Black Lives Matter Movement has had on
corporate America. In this Part, this Comment analyzes the Top 10 Fortune 500
companies and select others. The others are traditional corporate forms, as well
as a few benefit corporations. The analysis focuses on whether the companies
1
See Black Lives Matter, BRITANNICA, https://www.britannica.com/topic/Black-Lives-Matter (last
visited Jan. 22, 2021).
2
Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement
in U.S. History, N.Y.
TIMES (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-
protests-crowd-size.html.
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100 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
put out statements and plans for making internal changes to combat racism. The
internal changes might include diversity requirements in the makeup of their
Board of Directors, training such as implicit bias awareness, or other ways to
implement anti-racism and diversity strategies into their practices. This Part also
discusses where corporations can go from here and how they can improve in the
future by implementing strategies such as corporate social responsibility,
incorporating as a benefit corporation, and enacting corporate activism.
Finally, the Comment concludes with possible future steps in research,
including how corporations can ensure that large decisions trickle down to
everyday practices, such as inclusive customer experiences in retail.
The policy importance behind implementing anti-racism strategies into
corporations is that corporations have a large voice and platform in the country
that can be used to make even a small amount of change. Not only will adopting
these practices allow more people of color to have a seat at the table, but they
will show individuals and other entities that even these businesses are taking a
stance. Even though addressing racism within corporations will not alone change
systemic racism in the United States, holding corporations accountable is a mark
toward progress, especially in creating a more equal economy. As Valerie
Wilson, director of the Economic Policy Institute Program on Race, Ethnicity,
and the Economy said, “While losing a job comes nowhere close to losing a life,
both are symptoms of the kind of racial injustice that sparked national and
international protests this past summer.”
3
While civil rights and social justice movements are not new, the modern era
brings novel platforms to enact change. In the 1980s, companies implemented
diversity training, but the training was mostly a tactic to protect against civil
rights lawsuits.
4
Diversity training did not seem to help corporations since they
are still lacking in their diversity and inclusion efforts as this Comment will
show. The Me Too movement, which came to prominence in 2018, is a modern
social justice movement most similar to the Black Lives Matter movement in
2020.
5
The Me Too movement focused on combating sexual violence and
3
Valerie Wilson, Racism and the Economy, ECON. POL’Y INST.: WORKING ECONS. BLOG (Nov. 21,
2020), https://www.epi.org/blog/racism-and-the-economy-fed/.
4
Mita Mallick, Do You Know Why Your Company Needs a Chief Diversity Officer?, HARV. BUS. REV.
(Sept. 11, 2020), https://hbr.org/2020/09/do-you-know-why-your-company-needs-a-chief-diversity-officer.
5
Audrey Carlsen, Maya Salam, Claire Cain Miller, Denise Lu, Ash Ngu, Jugal K. Patel & Zach Wichter,
#MeToo Brought Down 201 Powerful Men. Nearly Half of Their Replacements Are Women., N.Y.
TIMES, https://
www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html?mtrref=www.google.com&assetType=
REGIWALL (last updated Oct. 29, 2018).
JOHNSON_4.13.21 4/15/2021 11:16 AM
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uplifting women’s stories.
6
Entities, such as corporations, took action due to
instances of sexual violence brought to light at the workplace.
7
Some companies
implemented anti-harassment policies, and some added more women to their
Board of Directors.
8
A few states, like California, even mandated that
corporations add women to their Board of Directors.
9
The main difference between the Me Too movement and the Black Lives
Matter movement is that the Black Lives Matter movement reaches broader.
Instead of focusing on one issue, such as sexual violence like Me Too, the Black
Lives Matter movement seeks equity and racial justice in all areas and issues of
life and business, especially combating police brutality and racism in general.
10
Even though the two movements have major differences, comparing the two
helps analyze what corporations can do to address social issues.
While helping to progress society, companies should consider diversity and
inclusion efforts because they will see a positive outcome for themselves. In the
end, it is a win-win situation. Not only does diversity help businesses internally,
but it helps externally as well with investors and markets.
11
Studies have shown
that companies with ethnically diverse boards are 70% more likely to capture
new markets than those with less diverse boards.
12
The companies with diverse
boards generate 38% more in annual revenue from innovative products and
services.
13
Hopefully, with internal corporate changes and external SEC
changes, a shift will occur where more people of color are involved in the
corporate world.
I. T
HE BLACK LIVES MATTER MOVEMENT AND THE CORPORATE ROLE
A few paragraphs will never encapsulate the full history of systemic racism
in the United States. From the country’s beginnings, people of color have been
oppressed in all areas of life. Organizations and movements, such as Black Lives
Matter, hope to encourage change and promote equality.
6
Me Too Movement, https://metoomvmt.org/ (last visited Nov. 22, 2020).
7
See Accelerating Women to Corporate Boardrooms, 50/50 WOMEN ON BDS., https://5050wob.com (last
visited Nov. 22, 2020).
8
Id.
9
S.B. 826, 2017–2018 Leg., Reg. Sess. (Cal. 2018).
10
Black Lives Matter, supra note 1.
11
Mike Hyter and Audra Bohannon, Less Than 1 Percent of Fortune 500 CEOs Are Black: Corporate
America Must Change, C
OR. BD. MEMBER, https://boardmember.com/less-than-1-percent-of-fortune-500-ceos-
are-black-corporate-america-must-change/ (last visited Nov. 22, 2020).
12
Id.
13
Id.
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102 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
The Black Lives Matter movement seeks justice and equity in the modern
era.
14
Founded in 2013 by three women—Alicia Garza, Patrisse Cullors, and
Opal Tometi—the Black Lives Matter movement began in response to “the
acquittal of Trayvon Martin’s murderer, George Zimmerman.”
15
The movement
is now a member-led global network of more than 40 chapters.
16
“Black Lives
Matter is an ideological and political intervention in a world where Black lives
are systematically and intentionally targeted for demise. It is an affirmation of
Black folks’ humanity, our contributions to this society, and our resilience in the
face of deadly oppression.”
17
While the movement focuses on policy change and activism, it also raises
awareness of the importance of building up the economy with black businesses
and entrepreneurs.
18
This is where corporations come into play. For example, in
2017, the Black Lives Matter organizers created the hashtags
#BuildBlackCommunity, #CurbYourConsumerism, and #BuyBlack to
encourage consumers to boycott “White Capitalism” while shopping for the
holidays.
19
Many activists and scholars have spoken to the connection between
capitalism and racism in the United States. Ibram X. Kendi, author and founding
director of the Anti-Racist Research and Policy Center at American University,
claims capitalism and racism are “conjoined twins” and that “the origins of
racism cannot be separated from the origins of capitalism . . . the life of
capitalism cannot be separated from the life of racism.”
20
Kendi states his
connection by referring to the slave trade and how it was a large part of the
accumulation of wealth in Europe.
21
Kendi also expresses that slaveholders
shaped the economic policies of the United States.
22
Lawmakers drafted those
economic policies many years ago at a time when minority communities were
not taken into account. Trying to combine those aged policies with today’s
society does not work.
14
See Herstory, BLACK LIVES MATTER, https://blacklivesmatter.com/herstory/ (last visited Nov. 16,
2020).
15
Id.
16
Id.
17
Id.
18
See Make This Christmas a Black Xmas, BLACK LIVES MATTER (Nov. 29, 2017), https://blacklivesmatter.com/
make-this-christmas-a-black-xmas/.
19
Id.
20
How to Be an Antiracist: Ibram X. Kendi on Why We Need to Fight Racism the Way We Fight Cancer,
D
EMOCRACY NOW (Aug. 13, 2019), https://www.democracynow.org/2019/8/13/ibram_x_kendi_class_race_
capitalism.
21
Id.
22
Id.
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One example of those policies includes insurance policies during The New
Deal and how they affected black women.
23
Social Security at the time
disqualified workers in the agricultural and domestic industries.
24
“These
provisions meant that nine out of ten African American women workers were
automatically rendered ineligible.”
25
The black women who were affected lost
state-based financial assistance for over a decade while the majority of the rest
of society received the assistance.
26
Ten years is a long time and makes for
generational impacts that can be seen in today’s society.
27
“Despite its prominent
status as ‘the closest thing to a race-blind social program the United States has
ever known,’ Social Security was marked by inequity at its origins.”
28
Other
examples include issues in minimum wage laws, prevailing wage laws, workers’
compensation policies, and disability insurance policies.
29
Other scholars have also written about the relationship between racism and
capitalism. “In a general sense, racial capitalism in the United States constitutes
‘a peculiar variant of capitalist production’ in which Blackness expresses a
structural location at the bottom of the labor hierarchy characterized by
depressed wages, working conditions, job opportunities, and widespread
exclusion from labor unions.”
30
Since racism and capitalism are so closely
intertwined, there is no question that corporations should keep this in mind when
making decisions.
Korn Ferry and the Executive Leadership Council (“ELC”) conducted a
study into corporate boards’ racial makeup.
31
The results showed that in 2020,
only four black CEOs were leading Fortune 500 companies and fewer than 10%
of the most senior leaders in the Fortune 500 companies were black.
32
With the
SEC rules currently in place, corporations are not required to make any changes
to raise these numbers, only to disclose the makeup of the board.
33
Corporations
23
Jamila Michener & Margaret Teresa Brower, What’s Policy Got to Do with It? Race, Gender &
Economic Inequality in the United States, 149 D
ÆDALUS 100, 100–18 (2020), https://www.amacad.org/
publication/race-gender-economic-inequality-united-states.
24
Id.
25
Id.
26
Id.
27
Id.
28
Id.
29
Id.
30
Charisse Burden-Stelly, Modern U.S. Racial Capitalism: Some Theoretical Insights, MONTHLY REV.,
July 2020, at 8 (citing O
LIVER C. COX, CAPITALISM AND AMERICAN LEADERSHIP (1st ed. 1962)).
31
Hyter & Bohannon, supra note 11.
32
Id.
33
David Sparkman, SEC Issues Guidance on Board Diversity, MATERIAL HANDLING & LOGISTICS
(Apr. 4, 2019), https://www.mhlnews.com/labor-management/article/22055550/sec-issues-guidance-on-board-
diversity.
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104 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
should take action, not by putting out empty statements, but by changing their
internal makeup and policies. They should encapsulate equity and inclusion in
their policies.
The economy greatly affects social issues and policies, and corporations
directly affect the economy. Black Americans deserve a seat at the table, which
includes the boardroom. When more people of color are on the Boards of
Directors of corporations, the inclusion will trickle down to even lower-level
employees. When people of color are on the Board of Directors, they can inform
everyone else in the corporation about how certain decisions will affect everyday
people. That is when progressive change will occur for people working nine to
five for a company. A person of color working for a corporation as a lower-level
employee deserves to know the company cares about their wellbeing.
II. C
ORPORATION REQUIREMENTS BEFORE THE BLM MOVEMENT:
2009
SEC RULE
In 2009, the SEC approved rules to enhance shareholders’ information
through reports and other documents.
34
The rules required disclosures in proxy
and information statements about compensation, the backgrounds of directors,
and the consideration of diversity in the process by which candidates for director
are considered for nomination.
35
The rule required corporations to disclose
whether the nominating committee considers diversity in choosing nominees for
the board of directors.
36
If the nominating committee or board had a policy in
place for considering diversity when nominating a member, the rule required
disclosure of how the board implemented the policy and how the board or
nominating committee assessed the policy’s effectiveness.
37
Even though the rule mentioned that corporations should disclose diversity
in the process, it did not require diversity when choosing a nominee.
38
The
corporations could have overlooked any diversity tactics altogether, and they
still would have been complying with SEC guidelines.
39
Another issue with the
rule was that it did not define “diversity.”
40
Without the SEC’s set definition,
corporations themselves had the discretion to define diversity any way they
34
Proxy Disclosure Enhancements, Release Nos. 33-9089; 34-61175; 74 Fed. Reg. 68334-01 (Dec. 23,
2009).
35
Id.
36
Id.
37
Id.
38
Id.
39
Id.
40
Id.
JOHNSON_4.13.21 4/15/2021 11:16 AM
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chose, meaning they could have left out race or other demographic
characteristics. These rules went into effect on February 28, 2010, ten years
before the current Black Lives Matter movement.
41
Although these rules were a start toward a more progressive corporate
climate, they fell short.
42
Corporations were still not held as accountable as
necessary to expand their boards of directors to include members from minority
populations. As the next Part mentions, the SEC saw the shortcomings in their
rules for disclosing diversity in the director nomination process. Unfortunately,
ten years passed before a change in the rules occurred.
43
III. C
ORPORATE REQUIREMENTS RIGHT BEFORE THE 2020 BLACK LIVES
MATTER MOVEMENT
Before the 2020 Black Lives Matter movement, the SEC and lawmakers saw
the shortcomings with diversity in corporate boards. In 2009, the SEC updated
their Board of Directors disclosure rules for publicly held corporations which
required the corporations to disclose the characteristics they used that focused
on diversity when choosing a new director.
44
Also, in 2019, lawmakers
introduced the Improving Corporate Governance Through Diversity Act of
2019.
45
Each of those initiatives will be discussed below.
46
A. SEC’s Updated Rules
The SEC updated the 2009 Board of Directors disclosure rules in 2019.
47
The rules now state that if a corporation uses self-identifying characteristics such
as race, gender, ethnicity, religion, nationality, disability, sexual orientation, or
cultural background in the board selection process, the board must identify these
characteristics and how they were considered in the process.
48
This is an expansion from the 2009 rule because it requires the disclosure of
actual characteristics that the company uses to focus on diversity.
49
Previously,
diversity could mean anything to a corporation. The SEC as a whole still does
41
Id.
42
Hyter & Bohannon, supra note 11.
43
Sparkman, supra note 33.
44
Id.
45
H.R. 5084 (116th): Improving Corporate Governance Through Diversity Act of 2019, GOVTRACK
https://www.govtrack.us/congress/bills/116/hr5084 (last visited Mar. 27, 2021).
46
Id.
47
Sparkman, supra note 33.
48
Id.
49
Id.
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106 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
not define “diversity” in a uniform way, leaving it up to the discretion of each
corporation.
50
Without a uniform definition, corporations can merely make their
own standards and easily check off a box when they nominate someone to their
board who fills a characteristic.
51
With no strict third party standard or SEC
regulation, corporations as a whole still fail to truly encapsulate the importance
of diversity and the inclusion of minority populations.
The SEC Commissioner, Allison Herren Lee, delivered remarks at the
Council of Institutional Investors Fall 2020 Conference and addressed the
shortcomings of the rules up to this point.
52
She discussed the importance of
inclusion and diversity and the SEC’s role in promoting the values.
53
She cited
research that showed how diversity in a corporation correlates with enhanced
performance:
For example, one recent study on board diversity, using a definition
that encompassed director age, gender, race, financial expertise, and
number of directorships, had compelling findings: board diversity
corresponds to lower stock volatility due to the adoption of less risky
financial policies, and firms with more diverse boards invest more in
research and development and therefore are better at fostering
innovation.
54
Lee also emphasized the importance of disclosure and transparency for
corporations’ boards of directors.
55
She stated that transparency adds more
accountability to the corporation because it creates external pressure from
investors.
56
“While I appreciate these measures, given that women of color hold
just 4.6% of Fortune 500 board seats and less than one percent of Fortune 500
CEOs are Black, it’s time to consider how to get investors the diversity
information they need to allocate their capital wisely.”
57
The SEC rules still need
to progress, especially with the social issues at the forefront of 2020.
Since corporations can choose whether to disclose diversity information, the
SEC has gathered “spotty” information that is “not standard or uniform, not
50
Id.
51
Id.
52
Allison Herren Lee, Comm’r, U.S. Secs. and Exch. Comm’n, Remarks at the Council of Institutional
Investors Fall 2020 Conference: Diversity Matters, Disclosure Works, and the SEC Can Do More (Sept. 22,
2020), https://www.sec.gov/news/speech/lee-cii-2020-conference-20200922.
53
Id.
54
See Gennaro Bernile, Vineet Bhagwat & Scott Yonker, Board Diversity, Firm Risk, and Corporate
Policies 1, 1–97 (Mar. 6, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2733394.
55
Lee, supra note 52.
56
Id.
57
Id.
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consistent period to period, not comparable across companies, and not
necessarily reliable.”
58
Less than half of the Fortune 100 companies disclose the
ethnic and gender compositions of their boards.
59
With the current SEC rules in
place, the rest of the corporations that are not disclosing their boards’ ethnic and
gender composition are unfortunately still complying with all the requirements
they need to from the SEC.
60
Lee explicitly mentioned that disclosure alone was not enough to make
systemic change.
61
She proposed steps the SEC can take to enhance the diversity
of corporate boards.
62
In short, her proposed steps were: 1) allow the SEC’s
Division of Economic and Risk Analysis to assess how the SEC rules and future
amendments to the rules will impact underrepresented communities, 2) integrate
the SEC’s Office of Minority and Women Inclusion (“OMWI”) into their
policymaking and allow the OMWI to have a formal role in the rulemaking
process, and 3) work with other agencies, such as the Consumer Financial
Protection Bureau and the Small Business Association to combat discrimination
and support women and minority-owned small businesses.
63
While all of these proposals would make somewhat of a change, they may
never go into effect. With a new presidential administration and an economy
affected by COVID-19, the SEC may focus efforts on other topics and merely
push the diversity and inclusion movement to the side. As seen in the past, the
SEC thought certain rules and requirements would assist diversity efforts, but
they still fell short. Unfortunately, the same thing could happen again.
B. Improving Corporate Governance Through the Diversity Act of 2019
While SEC regulations would make the broadest change in requiring
corporate boards to be more diverse, legislation has the potential to make
changes as well. Corporations in certain areas would have to comply with state
statutes and regulations enacted by lawmakers.
58
Id.
59
See Cydney Posner, Will Companies Accede to Calls for Actions to Improve Racial and Ethnic
Diversity in Hiring and Promotion? California Considers a New Mandate for Racial/Rthnic Board Diversity,
COOLEY: COOLEY PUBCO (July 15, 2020), https://cooleypubco.com/2020/07/15/calls-for-actions-racial-ethnic-
diversity/.
60
Id.
61
Lee, supra note 52.
62
Id.
63
Id.
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108 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
The Improving Corporate Governance Through Diversity Act of 2019 is a
reintroduction of an act earlier introduced in 2017.
64
Gregory Meeks, a
democratic member of the United States House of Representatives representing
New York’s 5
th
congressional district, sponsored the bill in 2019.
65
Meeks
introduced the bill on November 14, 2019.
66
The act’s purpose was “to amend
the Securities Exchange Act of 1934 to require the submission by issuers of data
relating to diversity and for other purposes.”
67
The legislation would require
public companies to disclose the gender, race, ethnicity, and veteran status of
their directors, director nominees, and senior executive officers on an annual
basis.
68
The Senate received the bill on November 20, 2019.
69
The Senate read the
bill twice, then referred it to the Committee on Banking, Housing, and Urban
Affairs.
70
Since it has already been over a year since the latest developments, it
is unlikely the bill will move further in the legislative process unless
reintroduced as a new bill. In July 2020, multiple organizations joined together
and wrote a letter to Mike Crapo, the Chairman of the Committee on Banking,
Housing, and Urban Affairs, and Sherrod Brown, a Ranking Member of the
Committee on Banking, Housing, and Urban Affairs.
71
The letter urged the
committee members to pass the Improving Corporate Governance Through
Diversity Act of 2019.
72
In the letter the organizations emphasized many
statistics showing that having a diverse Board of Directors is beneficial to a
company.
73
The letter stated:
The “Improving Corporate Governance through Diversity Act of
2019” would establish a model to organically boost diversity on boards
through disclosure. This legislation would also establish an advisory
group that would carry out a study and provide recommendations on
private sector strategies to increase gender, racial and ethnic diversity
among boards of directors.
74
64
H.R. 5084 (116
th
): Improving Corporate Governance Through Diversity Act of 2019, supra note 45.
65
Id.
66
Id.
67
Improving Corporate Governance Through Diversity Act of 2019, H.R. 5084, 116th Cong. (2019).
68
Id.
69
Id.
70
Id.
71
Letter from American Bankers Association et al. to Mike Crapo, Chairman, Comm. on Banking, Hous.,
and Urb. Affs., and Sherrod Brown, Ranking Member, Comm. on Banking, Hous., and Urb. Affs. (July 27,
2020), https://www.uschamber.com/sites/default/files/200727_coalition_h.r._5084_senatesmallbusiness.pdf.
72
Id.
73
Id.
74
Id.
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Some of the organizations in the letter included the American Bankers
Association, Bank Policy Institute, the National Bankers Association, U.S.
Black Chambers, Inc., and many others.
75
As of January 2021, the bill has made
no more progress.
76
C. 2018 California Senate Bill 826
California Senate Bill 826, passed in 2018, requiring publicly held
companies based in California to have a minimum of one woman on their board
of directors by the end of 2019.
77
The bill also stated, “No later than the close of the 2021 calendar year, the
bill would increase that required minimum number to two (2) female directors
if the corporation has five (5) directors or to three (3) female directors if the
corporation has six (6) or more directors.”
78
The bill’s language emphasized the
benefits of having women on the board of directors of public companies.
79
“More women directors serving on boards of directors of publicly held
corporations will boost the California economy, improve opportunities for
women in the workplace, and protect California taxpayers, shareholders, and
retirees, including retired California state employees and teachers whose
pensions are managed by CalPERS and CalSTRS.”
80
This bill was passed during
the time of the Me Too movement, showing that social movements can have an
impact on corporate governance.
Studies have shown that corporations with more women in senior positions
have a higher return on assets.
81
The same can be said about minority candidates.
California followed its own model and enacted California Assembly Bill 979 in
2020 which required corporations to have members on their boards of directors
from minority populations.
82
Since corporations comply with state statutes,
more states should implement this type of legislation.
75
Id.
76
See Improving Corporate Governance Through Diversity Act of 2019, H.R. 5084, 116
th
Cong., 2019.
77
S.B. 826, 2017–2018 Leg., Reg. Sess. (Cal. 2018).
78
Id.
79
Id.
80
Id.
81
See Lone Engbo Christiansen, Huidan Lin, Joana Pereira, Petia Topalova & Rima Turk, Gender
Diversity in Senior Positions and Firm Performance: Evidence from Europe 1, 1–29 (International Monetary
Fund, Working Paper No. 16/50, 2016), https://www.imf.org/en/Publications/WP/Issues/2016/12/31/Gender-
Diversity-in-Senior-Positions-and-Firm-Performance-Evidence-from-Europe-43771.
82
A.B. 979, 2019–2020 Leg., Reg. Sess. (Cal. 2020).
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110 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
IV. THE IMPACTS OF BLACK LIVES MATTER ON CORPORATIONS AND WHERE
THEY CAN GO FROM HERE
The Black Lives Matter movement has made tremendous advancements in
the corporate world and every other aspect of American culture. Many
corporations chose to release statements through different marketing platforms
that showed their support for the Black Lives Matter movement.
83
Those
corporate statements and resulting legislative action will be analyzed below.
A. Corporate Statements
This Comment focuses on the Fortune 500 top 10 corporations in 2020, as
well as select others.
84
The Fortune 500 top 10 corporations from 2020 were
Walmart, Amazon, ExxonMobil, Apple, CVS Health, Berskhire Hathaway,
UnitedHealth Group, McKesson, AT&T, and Amerisource Bergen.
85
This
Comment will break down how each of these corporations responded, or did not
respond, to the Black Lives Matter movement, then explain background
information to see if the company is following through with their statements or
has a history of racial inequality.
1. 2020 Fortune 500 Top 10
a. Walmart
On June 12, 2020, Walmart issued a statement on its website titled,
“Advancing Our Work on Racial Equity.”
86
Doug McMillon, president and
CEO, signed the memo that was addressed to all Walmart associates.
87
The
memo highlighted McMillon’s statement from the company’s June 5, 2020,
Friday afternoon meeting.
88
In his statement, McMillon discussed the ongoing
issue of racial injustice and unfairness in the country.
89
McMillon said, “Slavery,
83
Megan Graham, The Right Way for Companies to Weigh in on Racism, According to Experts, CNBC
(June 2, 2020), https://www.cnbc.com/2020/06/02/how-companies-can-weigh-in-on-racism-in-the-right-way---
-experts.html.
84
The Top 10, FORTUNE, https://fortune.com/fortune500/ (last visited Mar. 27, 2021).
85
Id.
86
Advancing Our Work on Racial Equity, WALMART (June 12, 2020), https://corporate.walmart.com/
newsroom/2020/06/12/advancing-our-work-on-racial-equity.
87
Id.
88
Id.
89
Making a Difference in Racial Equity: Walmart CEO Doug McMillon’s Full Remarks, WALMART,
https://corporate.walmart.com/equity (last visited Nov. 22, 2020).
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lynching, the concept of separate but equal and the other realities from our past
have morphed into a set of systems today that are all too often, unjust.”
90
In those statements, the company committed $100 million to create a center
on racial equity that will support philanthropic initiatives that “align with four
key areas: the nation’s financial, healthcare, education, and criminal justice
systems.”
91
Walmart also committed to incorporating fairness and equity
strategies in their everyday work.
92
While Walmart chose to make a statement, the company’s history of tackling
racial injustice is scarce. A website called Making Change at Walmart is a
platform created by the United Food and Commercial Workers International
Union (UFCW) to “change Walmart into a more responsible employer and to
improve the lives of Walmart workers.”
93
The website is broken down into
sections that focus on marginalized communities, including African American
workers.
94
In that section, the writers mention Walmart’s racial inequality,
including the wealth disparity between the Walton family and African American
workers, stating that “Walton’s wealth is equivalent to that of 79% of African
American families combined.”
95
The website also mentioned an incident in 2014
when Ohio police fatally shot a black man who was carrying an unloaded BB
gun through a Walmart store, even though Ohio is an open carry state.
96
For a
time after the shooting, Walmart refused to release the video footage caught by
security cameras.
97
Since Walmart’s history of combating racial injustice is
practically nonexistent, the company should define what it means when stating
it will incorporate “fairness and equity strategies in its everyday work.”
98
Not only is Walmart’s history of racial justice scare, but its current board of
directors’ makeup does not show that the company is progressive in including
individuals from minority communities.
99
Walmart only has one person of color
on its board of directors.
100
90
Id.
91
Id.
92
Id.
93
About Us, MAKING CHANGE AT WALMART, http://changewalmart.org/about-us/ (last visited Jan. 30,
2021).
94
Id.
95
Id.
96
Id.
97
Id.
98
Making a Difference in Racial Equity: Walmart CEO Doug McMillon’s Full Remarks, supra note 89.
99
See Leadership, WALMART, https://corporate.walmart.com/our-story/leadership (last visited Feb. 5,
2021).
100
Id.
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112 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
b. Amazon
Amazon has made some statements and promised to make changes to
increase diversity and implement the mission of the Black Lives Matter
movement into their organization.
101
The company donated funds to the
NAACP, National Urban League, Thurgood Marshall College Fund, UNCF, and
other organizations that promote racial equity.
102
Amazon’s statement from June
2020 read, “Black lives matter. We stand in solidarity with our Black employees,
customers, and partners, and are committed to helping build a country and a
world where everyone can live with dignity and free from fear.”
103
Apart from the statement, Amazon implemented changes in its own
technology. Alexa now has a response when someone asks, “Do black lives
matter?”
104
“When asked, ‘Do black lives matter?’ Alexa now says: ‘Black lives
matter. I believe in racial equality. I stand in solidarity with the Black
community in the fight against systemic racism and injustice. To learn how you
can take action, I recommend visiting blacklivesmatter.com and
NAACP.org.’”
105
In August 2020, Amazon added the first black woman to its senior leadership
team.
106
Alicia Boler Davis is now the company’s vice president of global
customer fulfillment.
107
Before her appointment to the team, the company added
the “Rooney Rule” to its hiring efforts for the board of directors.
108
The Rooney
Rule was first found in the NFL, and it requires teams to consider minority
candidates for coaching and operations-level roles.
109
Amazon added the rule in
2019, and still only hired four women with Davis being the only black
woman.
110
101
Amazon Donates $10 Million to Organizations Supporting Justice and Equity, AMAZON (June 3, 2020),
https://blog.aboutamazon.com/policy/amazon-donates-10-million-to-organizations-supporting-justice-and-
equity.
102
Id.
103
Id.
104
Todd Haselton, Amazon Alexa, Apple Siri, Google Assistant Have Been Updated to Express Support
for Black Lives Matter, CNBC (June 9, 2020), https://www.cnbc.com/2020/06/09/apple-siri-google-assistant-
new-response-to-do-black-lives-matter.html.
105
Id.
106
Jazmin Goodwin, Amazon Adds More Executive Diversity with Appointment of First Black Woman to
Its Senior Leadership Team, CNN
BUSINESS (Aug. 25, 2020), https://www.cnn.com/2020/08/25/tech/amazon-
first-black-executive-senior-leadership-team-bezos/index.html.
107
Id.
108
Id.
109
Id.
110
See also Rishi Iyengar, Amazon Now Has 3 Women on Its Senior Leadership Team – and 19 Men, CNN
BUSINESS (Dec. 6, 2019), https://www.cnn.com/2019/12/06/tech/amazon-leadership-s-team-bezos/index.html.
JOHNSON_4.13.21 4/15/2021 11:16 AM
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While Amazon believes their new strategies seem to move in a positive
direction in racial equity, critics have noted Amazon’s ties to police forces across
the country.
111
For example, the company sold face-recognition software to
police in 2018 that was used with police body cameras.
112
The ACLU found that
this software, called Rekognition, falsely matched 28 members of Congress with
mugshots.
113
The false matches were disproportionately people of color, which
highlights the issue of mass incarceration in the United States.
114
If police
officers rely on inaccurate technology such as Rekognition, the number of
incarcerated people of color will skyrocket even higher than it already is. Mass
incarceration is one of many issues of systemic racism in the U.S.
115
Corporations need to be held accountable and stopped when they contribute to
such practices. In June 2020, Amazon decided to place a one-year restriction on
law enforcement’s use of Rekognition.
116
The company should expand that
restriction from one-year to a permanent restriction.
Amazon’s efforts need to expand if the company wants to help fight racial
inequity in the country. Merely adding one woman of color to the senior
leadership team and putting out statements while still supporting police is
unacceptable.
c. ExxonMobil
Until a blatant act of racism at an Exxon station went viral on social media,
ExxonMobil remained silent on racial inequity.
117
In Atlanta, an Exxon station
clerk yelled racial slurs.
118
The community actively protested the station.
119
The
111
Kari Paul, Amazon says 'Black Lives Matter'. But the Company Has Deep Ties to Policing, THE
GUARDIAN (June 9, 2020), https://www.theguardian.com/technology/2020/jun/09/amazon-black-lives-matter-
police-ring-jeff-bezos.
112
Id.
113
Jacob Snow, Amazon’s Face Recognition Falsely Matched 28 Members of Congress with Mugshots,
ACLU (July 26, 2018, 8:00 AM), https://www.aclu.org/blog/privacy-technology/surveillance-technologies/
amazons-face-recognition-falsely-matched-28.
114
Id.
115
Mass Incarceration, ACLU, https://www.aclu.org/issues/smart-justice/mass-incarceration (last visited
Nov. 22, 2020).
116
See Bobby Allyn, Amazon Halts Police Use of Its Facial Recognition Technology, NPR (June 10,
2020), https://www.npr.org/2020/06/10/874418013/amazon-halts-police-use-of-its-facial-recognition-
technology.
117
Jeff Green & Gerald Porter, Silence on Race No Longer An Option, US Brands Struggle to Market
Themselves, T
HE PRINT (June 5, 2020), https://theprint.in/world/silence-on-race-no-longer-an-option-us-brands-
struggle-to-market-themselves/436121/.
118
Barmel Lyons, Gas Station Owner Caught in the Fray of Racial Slur Controversy, CBS 46 (Nov. 11,
2020), https://www.cbs46.com/news/gas-station-owner-caught-in-the-fray-of-racial-slur-controversy/article_
3d2ec700-249d-11eb-b23c-0bff098229b5.html.
119
Id.
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114 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
clerk made a video for social media where he apologized for the statements, but
the protest organizer, Joe Jones, stated the apology was not enough to make up
for the offensive comments.
120
Jones reached out to the ExxonMobil corporation
but stated they did not get back to him in a timely manner.
121
The protestors
stated they would continue with the active protests until the store was shut
down.
122
ExxonMobil finally put out a statement claiming the company does not
tolerate any form of discrimination or harassment by any company
representative.
123
The statement said that the company’s policies promote
diversity and inclusion.
124
The statement did not include words of solidarity for
the black community and did not mention the black community explicitly
whatsoever.
125
The company’s insufficient statement seemed to only be a move to keep the
store from closing. ExxonMobil only has two black people on its board of
directors.
126
The powers of the directors do not include any form of diversity or
inclusion efforts.
127
The company has a lot of work to do in its efforts for racial
equity.
d. Apple
Apple has issued statements and made some progress to forward the Black
Lives Matter mission.
128
On June 11, 2020, Apple stated that it would commit
$100 million to a racial equity initiative in the company.
129
Apple will establish
a developer entrepreneurial camp to support black developers and improve
representation within its supply chain.
130
The company also promised to start
120
Id.
121
Id.
122
Id.
123
Id.
124
Id.
125
Id.
126
ExxonMobil Board of Directors, EXXONMOBIL https://corporate.exxonmobil.com/About-us/Who-we-
are/Corporate-governance/ExxonMobil-board-of-directors#PowersoftheBoard (last visited Jan. 30, 2021).
127
Id.
128
Speaking up on Racism, APPLE, https://www.apple.com/speaking-up-on-racism/ (last visited Jan. 30,
2021).
129
Jeremy Horwitz, Apple Commits $100 Million to Racial Equity Initiative, Boosting Black Partners,
V
ENTURE BEAT (June 11, 2020), https://venturebeat.com/2020/06/11/apple-commits-100-million-to-racial-
equity-initiative-boosting-black-partners/.
130
Speaking up on Racism, supra note 128.
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working with the Equal Justice Initiative, an organization that aims to end mass
incarceration, excessive punishment, and racial inequality.
131
Similar to Amazon’s Alexa devices, Siri now has a response to “Do black
lives matter?” and “All lives matter.”
132
“[I]f you ask Siri, ‘Do black lives
matter?’ it says: ‘Yes, black lives matter. (BlackLivesMatter.com).’
133
. . . [I]f
you ask, ‘Do all lives matter?’ Siri says: ‘All lives matter’ is often used in
response to the phrase ‘black lives matter,’ but it does not represent the same
concerns. To learn more about the Black Lives Matter human rights movement,
visit BlackLivesMatter.com.”
134
While Apple is taking some action, the company still lacks diversity in its
board of directors.
135
Apple only has one black person on the board, James A.
Bell, former CFO and Corporate President of the Boeing Company.
136
Apple
promises to hire more people from minority communities, but the company
should not ignore its hiring and electing practices for its top executive positions.
e. CVS Health
On June 12, 2020, CVS posted a statement to the company’s Twitter account
standing in solidarity with the black community.
137
The statement said, “The
senseless deaths of George Floyd, Ahmaud Arbery, Breonna Taylor and many
others point to the harsh reality of systemic racism. Over the last two weeks,
we’ve opened doors to new and honest conversations both inside and outside of
our company to help shape our plan of action.”
138
In a series of four photos attached to the Tweet, the company described its
plan of action to combat racism and promote inclusion in the company,
emphasizing its role in the matter since racism is a public health issue.
139
The
company split its statement into three categories: Colleagues, Communities, and
Public Policy.
140
CVS committed nearly $600 million to address racial
131
Id.
132
Haselton, supra note 104.
133
Id.
134
Id.
135
Leadership and Governance, APPLE, https://investor.apple.com/leadership-and-governance/default.
aspx (last visited Jan. 30, 2021).
136
Id.
137
CVS Health (@CVSHealth), TWITTER (June 12, 2020, 11:41 A.M.), https://twitter.com/CVSHealth/
status/1271467616838787074.
138
Id.
139
Id.
140
Id.
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116 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
inequality in all three of those areas.
141
The Colleagues section is mostly
connected to the issue of a diverse board of directors and executive teams.
142
The company stated it will ensure that Black and Brown colleagues have the
opportunity for advancement and development at all levels, including senior
level positions.
143
The company’s moves from here on out should reflect the
statements made because it currently only has two people of color on its board
of directors.
144
f. Berkshire Hathaway
Nick Warren, the CEO of Berkshire Hathaway, put out a statement on the
company’s website in June 2020.
145
Warren’s statement focused on his own
shortcomings with understanding the Black Lives Matter movement.
146
He
wrote:
Taking the time to educate yourself and understand someone else’s
perspective is one of the simplest, yet most powerful ways to show
your support. I’ll admit until recently I didn’t understand what the
Black Lives Matter movement was actually about. Why were the “All
Lives Matter” social media posts looked at as racist?
I had to be missing something.
It was only after taking the time to read deeper on the subject that I
finally understood why this is offensive and that the message of the
Black Lives Matter movement is that black lives, because of racism,
have never mattered as much as white lives, and until that changes, no
lives should matter.
147
Warren wrote that the company will take action steps, as well as make
donations to certain organizations, to ensure Berkshire Hathaway is an inclusive
company that promotes racial equity.
148
Those action steps included: 1) getting
more black people involved in the real estate industry, 2) offering internships or
141
CVS Health, CVS Health Commits Nearly $600 Million to Address Racial Inequality (July 8, 2020),
https://cvshealth.com/news-and-insights/press-releases/cvs-health-commits-nearly-600-million-to-address-
racial-inequality.
142
See CVS Health (@CVSHealth), supra note 137.
143
Id.
144
CVS Health Corp., WALL ST. J., https://www.wsj.com/market-data/quotes/CVS/company-people (last
visited Jan. 30, 2021).
145
Nick Warren, We Stand with Black Lives Matter, BERKSHIRE HATHAWAY (June 11, 2020),
https://www.warrenre.com/blog/we-stand-with-black-lives-matter1.html.
146
Id.
147
Id.
148
Id.
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mentorships to black students in Boston, and 3) supporting black-owned
businesses in and around Boston.
149
As with Apple, the company’s actions from here on out should follow the
statements it put out. Berkshire Hathaway’s board of directors only has one
black person out of fourteen members.
150
g. UnitedHealth Group
UnitedHealth Group had a more direct action plan to further the 2020 Black
Lives Matter movement described in its statement than some of the other
corporations.
151
The company promised to begin a Diverse Scholars trust fund
to help George Floyd’s children pay for their education.
152
The company also
announced a $5 million donation to help restore Minneapolis and St. Paul.
153
It
also promised to donate $5 million to the YMCA Equity Innovation Center of
Excellence in memory of George Floyd.
154
David Wichmann, the CEO of UnitedHealth Group stated, “The 325,000
people of UnitedHealth Group remain steadfast in our commitment to not only
build a culture of inclusivity and diversity within our own organization, but to
ensure our actions help create a more equitable society for the people we
serve.”
155
The company took the right steps to help the community and George
Floyd’s family, but an analysis of its internal diversity and inclusion policies
would also shed light on the company’s values. The company has a full section
on its website about diversity and inclusion initiatives, including an entire blog
dedicated to the issues.
156
UnitedHealth group seems to follow all of the requirements for diversity and
inclusion on the outside, but its board of directors only includes two people of
color.
157
As mentioned with other companies, hiring strategies such as posting
149
Id.
150
Berkshire Hathaway Inc., WALL ST. J., https://www.wsj.com/market-data/quotes/BRKA/company-
people (last visited Jan. 30, 2021).
151
UnitedHealth Group Announces Support for Minneapolis-St. Paul in Response to George Floyd
Tragedy and Civil Unrest, U
NITEDHEALTH GRP. (June 1, 2020), https://www.unitedhealthgroup.com/newsroom/
posts/2020-06-01-support-george-floyd.html.
152
Id.
153
Id.
154
Id.
155
Id.
156
Inclusion & Diversity, UNITEDHEALTH GRP., https://careers.unitedhealthgroup.com/culture/inclusion-
and-diversity/ (last visited Jan. 21, 2021).
157
Board of Directors, UNITEDHEALTH GRP., https://www.unitedhealthgroup.com/content/dam/UHG/
PDF/About/UNH-Board-of-Directors.pdf (last visited Jan. 30, 2021).
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118 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
on minority-focused job boards, could increase diversity among lower-level
employees, but structural change will not happen without people of color at the
top.
h. McKesson
McKesson, a medical supply company, did not put out a statement during
the height of the 2020 Black Lives Matter movement. The company’s website
claims it puts an emphasis on inclusion and diversity, but the actions are
vague.
158
The company has two people of color on the board, which is not even
close to half.
159
i. AT&T
AT&T put out a statement on the company’s website in 2020.
160
The
statement was a letter from John Stankey, CEO, to the employees.
161
The
statement began by saying, “The killings of George Floyd and countless others
highlight the continued injustices experienced by Black Americans. Their deaths
underscore the history of violence and racism Black people still face.”
162
Stankey promised that the company would advocate for systemic change, telling
stories through WarnerMedia about racism and the lack of racial equality,
listening to employees at all levels about racial issues they face, and making a
difference by learning from their own employees.
163
While AT&T promises to enact change and support racial equity, the
company only has one person of color on its board of directors.
164
AT&T follows
the pattern seen thus far. Even the companies that put out statements of support
need a lot of change when it comes to diversity on its board of directors.
j. Amerisource Bergen
Steve Collis, the President and CEO of Amerisource Bergen, wrote a
statement that he published to LinkedIn about the company’s place during the
158
Inclusion and Diversity, MCKESSON, https://www.mckesson.com/About-McKesson/Corporate-
Citizenship/Inclusion-and-Diversity/ (last visited Jan. 30, 2021).
159
Id.
160
We Stand for Equality, AT&T, https://about.att.com/pages/racial_equality (last visited Jan. 30, 2021).
161
Id.
162
Id.
163
Id.
164
Board of Directors, AT&T, https://investors.att.com/corporate-governance/board-of-directors (last
visited Jan. 30, 2021).
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Black Lives Matter movement.
165
The letter was also directly shared with all
Amerisource Bergen associates.
166
While the statement promotes inclusion and
listening, Collis did not explicitly lay out plans for the company to move forward
and make changes.
167
The company should make plans to enact change internally because its board
of directors only has one person of color.
168
Without proper representation at the
highest levels, a company will not see structural changes.
2. Other Corporations That Put Out Statements
Many other corporations that are not on the Fortune 500 top ten list put out
statements in support of the Black Lives Matter movement in 2020. Some of
these companies include Uber, Microsoft, Nike, Adidas, HBO, Yelp, and Ben &
Jerry’s. Each of their statements will be discussed below.
a. Uber
Uber posted a statement on its website entitled, “If you tolerate racism,
delete Uber.”
169
Along with many other initiatives, the company promised to
provide anti-racism education for riders and drivers, always include a promise
to treat others with dignity and respect in the Community Guidelines, and
unconscious bias training for customer support.
170
Uber has one person of color
on its board of directors.
171
b. Microsoft
Microsoft released a statement on its website.
172
Microsoft’s CEO Satya
Nadella wrote the statement, which said that the board of directors had been
discussing the role the company plays in “helping drive change, both within
Microsoft and within our communities.”
173
As of February 2021, Microsoft had
165
Steve Collis, Our Role in True Peace, LINKEDIN, https://www.linkedin.com/pulse/our-role-true-peace-
steve-collis (last visited Jan. 30, 2021).
166
Id.
167
Id.
168
Amerisource Bergen Corp., WALL ST. J., https://www.wsj.com/market-data/quotes/ABC/company-
people (last visited Jan. 30, 2021).
169
If You Tolerate Racism, Delete Uber, UBER, https://www.uber.com/us/en/u/right-to-move/ (last visited
Feb. 1, 2021).
170
Id.
171
Leadership, UBER, https://www.uber.com/newsroom/leadership/ (last visited Feb. 1, 2021).
172
Microsoft Corporate Blogs, Addressing Racial Injustice, MICROSOFT (June 23, 2020), https://blogs.
microsoft.com/blog/2020/06/23/addressing-racial-injustice/.
173
Id.
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three people of color on its board of directors, which is not even close to half.
174
Since the statement mentioned that the board of directors was discussing its role
in helping drive change, specifically in addressing racial injustice, the board
cannot drive change without having enough voices from the community it wants
to help progress.
c. Nike
Nike has used its voice to advocate for the black community but not without
its own downfalls. In 2018 the company put out an advertisement that later won
a Creative Arts Emmy, which starred Colin Kaepernick.
175
Kaepernick started a
movement in 2016 when he kneeled during the national anthem before NFL
games to protest racial inequality and police brutality.
176
Even though Nike’s
advertisement directly starred one of the most influential people of the Black
Lives Matter movement, some executives at the company wanted to sever ties
with Kaepernick.
177
“In the summer of 2017, a debate raged in Nike’s
headquarters in Beaverton, Ore., over whether to cut loose the controversial,
unemployed quarterback—and the company very nearly did, according to two
individuals with knowledge of the discussions who requested anonymity
because of nondisclosure agreements each has with Nike.” In the end, Nike kept
Kaepernick.
178
In the wake of 2020 racial injustice, Nike put out a statement entitled, “Our
Commitment to the Black Community.”
179
The statement said that Black Lives
Matter inside and outside of NIKE, Inc.
180
On July 29, 2020, Nike, Inc.
announced a four-year $40 million plan to fight systemic racism in the U.S.
181
174
Id.
175
Mary Papenfuss, Nike’s Controversial Colin Kaepernick Ad Wins Emmy For Best Commercial,
H
UFFINGTON POST (Sept. 16, 2019), https://www.huffpost.com/entry/colin-kaepernick-donald-trump-nike-ad-
creative-arts-emmy_n_5d7efe19e4b00d69059b023f.
176
Id.
177
Julie Creswell, Kevin Draper & Sapna Maheshwari, Nike Nearly Dropped Colin Kaepernick Before
Embracing Him, N.Y. T
IMES (Sept. 26, 2018), https://www.nytimes.com/2018/09/26/sports/nike-colin-
kaepernick.html.
178
Id.
179
Our Commitment to the Black Community, NIKE, https://purpose.nike.com/our-commitment-to-the-
black-community (last visited Feb. 5, 2021).
180
Id.
181
NIKE, Inc. Announces Initial Partners for $40 Million, Four-Year Commitment to Fight Systemic
Racism, N
IKE NEWS (July 29, 2020), https://news.nike.com/news/nike-inc-announces-initial-partners-for-40-
million-four-year-commitment-to-fight-systemic-racism.
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While Nike seems to market itself as an inclusive company that collaborates
with many black creators such as Virgil Abloh
182
, Drake
183
, and Serena
Williams
184
, the company’s board of directors follows the same pattern as
others. Nike only has two people of color on its board of directors.
185
d. Adidas
Nike’s top competitor, Adidas, also put out a statement in support of the
Black Lives Matter movement in a series of tweets in June 2020.
186
Adidas
added one sentence that connected its company success directly to the black
community: “The success of adidas would be nothing without Black athletes,
Black artists, Black employees, and Black consumers. Period.”
187
As with other statements, Adidas’ statement mentioned the company’s
commitment to the black community and a zero-tolerance policy for any racist
instances while failing to include any changes in the structure of its board of
directors..
188
Adidas has zero people of color on its board of directors.
189
Even
though Adidas is a German corporation with its headquarters in
Herzogenaurach, Germany, the company is registered through the SEC.
190
Since
it is registered through the SEC, the company would have to comply with any
rules the commission adopts, including the proposed board diversity
requirements.
191
182
Nike and Virgil Abloh's New Book Treats the Sneaker as (Hyper) Object, NIKE NEWS (Jan. 11, 2021),
https://news.nike.com/news/nike-virgil-abloh-taschen-icons-book#:~:text=Nike%20and%20Virgil%20Abloh's
%20New,the%20Sneaker%20as%20(Hyper)Object&text=The%20book%20traces%20Abloh's%20investigativ
e,treasures%20from%20the%20Nike%20archives.
183
Drake Unpacks the NOCTA Ethos, NIKE NEWS (Dec. 2, 2020), https://news.nike.com/news/drake-
nocta.
184
Serena Williams’ Next Nike Collections will be Led by NYC Design Apprentices, NIKE NEWS (Oct. 18,
2019), https://news.nike.com/news/serena-williams-design-crew.
185
Nike Inc., WALL ST. J., https://www.wsj.com/market-data/quotes/NKE/company-people (last visited
Feb. 5, 2021).
186
Adidas (@adidas), TWITTER (June 10, 2020, 3:30 PM), https://twitter.com/adidas/status/1270800410
136195072.
187
Id.
188
See Id.
189
Adidas AG, WALL ST. J., https://www.wsj.com/market-data/quotes/ADDYY/company-people (last
visited Feb. 5, 2021).
190
Adidas Ag, SEC, https://sec.report/CIK/0001011311 (last visited Feb. 5, 2021).
191
Id.
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122 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
e. Yelp
Yelp now has a feature that alerts consumers when a business has received
reports of racism.
192
When an incident involving racism occurs, the company
will take a two-step approach to categorizing the restaurant on the app.
193
First,
Yelp will default the company as a “Public Attention Alert” to “inform
consumers if someone associated with the business was accused of, or the target
of, racist behavior.”
194
Next, Yelp will escalate it to a “Business Accused of
Racist Behavior” when there’s “resounding evidence of egregious, racist actions
from a business owner or employee.”
195
While the efforts invoke a change and
hold businesses that are on Yelp accountable, Yelp’s board of directors only
includes one person of color, showing the company needs to focus on its internal
makeup.
196
f. Ben & Jerry’s
Ben & Jerry’s is widely known as being a corporation committed to
progressing social issues.
197
The company’s first significant statement during
the Black Lives Matter movement stated, “We Must Dismantle White
Supremacy.”
198
Since then, Ben Cohen and Jerry Greenfield, the company’s co-
founders, announced a campaign to end qualified immunity, which is the
Supreme Court doctrine that shields law enforcement officers from being
personally sued for actions performed in the line of duty.
199
While the efforts are
charged by Cohen and Greenfield as individuals, the company itself continues
to put out statements in support of the Black Lives Matter movement.
200
Ben & Jerry’s not only puts out statements, but the corporation also has the
most diverse board of directors out of the corporations discussed thus far.
201
The
board of directors consists of five individuals, three of them being a person of
192
Noorie Malik, New Consumer Alert on Yelp Takes Firm Stance Against Racism, YELP BLOG (Oct. 8,
2020), https://blog.yelp.com/2020/10/new-consumer-alert-on-yelp-takes-firm-stance-against-racism.
193
Id.
194
Id.
195
Id.
196
Board of Directors, YELP, https://www.yelp-ir.com/governance/board-of-directors/default.aspx (last
visited Feb. 12, 2021).
197
Mackenzie Baker, Ben & Jerry’s Serves Up Social Justice, GARTNER (June 15, 2020), https://www.
gartner.com/en/marketing/insights/daily-insights/ben-jerrys-serves-up-social-justice.
198
Id.
199
Chauncey Alcorn, Ben & Jerry's Co-Founders Want to Make it Easier to Sue Cops Who Abuse their
Authority CNN
BUSINESS (Jan. 27, 2021), https://www.cnn.com/2021/01/27/business/ben-and-jerrys-qualified-
immunity/index.html.
200
Baker, supra note 197.
201
Id.
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color.
202
Even though the board of directors is smaller than other companies
mentioned, people of color still make up the majority.
203
Ben & Jerry’s can be a
model for the argument that if the top of the company is diverse, then the rest of
the company will enact measures to increase diversity and promote social issues
as well.
204
While these listed corporations are not the only ones that made statements
during the Black Lives Matter movement, this small sample shows that even
though the corporations seem to support the black community on the surface,
their internal makeup is lacking people of color. Some only decided to donate
money and not change their internal corporate structure. Donating money to
organizations is a positive move, but it should be supplemented with looking
inward and the company asking itself how it can also enact progressive change.
B. Proposals and Legislation Resulting from the Black Lives Matter
Movement
1. California Assembly Bill 979
On September 30, 2020, California’s Governor Gavin Newsom signed
Assembly Bill (“AB”) 979.
205
The bill requires publicly held corporations to
have members on their boards of directors from “underrepresented
communities.”
206
The bill defines a director from an underrepresented
community as, “an individual who self-identifies as Black, African American,
Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or
Alaska Native, or who self-identifies as gay, lesbian, bisexual, or
transgender.”
207
The number of people from underrepresented communities
depends on the size of the board of directors. For example, a corporation with
more than four but fewer than nine directors must have a minimum of two
directors from underrepresented communities.
208
2. NASDAQ Proposal to the SEC
The NASDAQ sent a proposal to the SEC that would require every
corporation on the NASDAQ to expand its Board of Directors to have more
202
Id.
203
Id.
204
Baker, supra note 197.
205
A.B. 979, 2019-2020 Leg., Reg. Sess. (Cal. 2020).
206
Id.
207
Id.
208
Id.
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124 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
diverse representation.
209
Even if a corporation is not on the NASDAQ, it could
take the requirements as a model for its own Board of Directors.
210
The NASDAQ proposed to the SEC that each NASDAQ-listed company
would have to:
(A) annually disclose diversity statistics regarding their directors’ vol-
untary self-identified characteristics in substantially the format pro-
posed by Nasdaq for the current year and (after the first year of disclo-
sure) the immediately prior year; and (B) include on their boards of
directors at least two “Diverse” directors (as defined in the rules) or
publicly disclose why their boards do not include such “Diverse” di-
rectors.” The proposed listing rule would require most Nasdaq-listed
companies, other than “Exempt Entities” (as defined below), to: (A)
have at least two members of its board of directors who are “Diverse,”
which includes: (1) at least one director who self-identifies her gender
as female, without regard to the individual’s designated sex at birth
(“Female”); and (2) at least one director who self-identifies as one or
more of the following: (i) Black or African American, Hispanic or
Latinx, Asian, Native American or Alaska Native, Native Hawaiian or
Pacific Islander, or two or more races or ethnicities (“Underrepre-
sented Minority”); or (ii) as lesbian, gay, bisexual, transgender or a
member of the queer community (“LGBTQ+”); or (B) explain why the
company does not have at least two directors on its board who self-
identify as “Diverse.”
211
If the SEC approves the new NASDAQ rule, each NASDAQ-listed company
would have one year from the approval date to implement the new requirements
for the annual board diversity disclosure.
212
If the rule is approved, the
NASDAQ-listed companies would have two years from the approval date to
implement the new general board diversity requirements.
213
NASDAQ’s
rationale for the new rules come after NASDAQ found that more than 75 percent
of its listed companies did not meet its proposed diversity requirements.
214
209
Nasdaq Proposes New Board Diversity Rules, GIBSON, DUNN & CRUTCHER LLP (Dec. 4, 2020),
https://www.gibsondunn.com/nasdaq-proposes-new-board-diversity-rules/.
210
See Id.
211
Id.
212
Id.
213
Id.
214
Id.
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C. Other Strategies for Corporations to Implement to Increase Diversity and
Inclusion
Even if the states or the SEC do not take action, corporations can add their
own strategies to dismantle systemic racism within their organizations. Some of
these strategies include implementing corporate social responsibility, practicing
corporate activism, and incorporating as a benefit corporation. Even with these
strategies, corporations need to question their business practices and decisions
to determine if they are truly moving forward and progressing to dismantle
racism. Implementing these strategies would at least hold them more
accountable in the fight against racial injustice. Each of these strategies will be
examined below.
1. Corporate Social Responsibility
Corporations could enact certain theoretical practices to their overall makeup
that would enhance their diversity and inclusion efforts. One of those theoretical
practices is corporate social responsibility. “Corporate social responsibility
(CSR) is a self-regulating business model that helps a company be socially
accountable—to itself, its stakeholders, and the public.”
215
Corporate social
responsibility is similar to the makeup of benefit corporations because the
company makes decisions with other interests in mind besides merely making a
profit.
216
The other interests could be the wellbeing of employees, society, the
environment, or other factors.
217
“By practicing corporate social
responsibility…companies can be conscious of the kind of impact they are
having on all aspects of society, including economic, social, and
environmental.”
218
In particular, two cases specify the role of corporate social
responsibility: Ruiz v. Darigold, Inc.
219
and Fogel v. Wal-Mart de México SAB
de C.
220
Consumers help corporations thrive, so consumers can hold corporations
accountable. Consumers have a cause of action if the company does not commit
to their corporate social responsibility efforts.
221
Consumers depend on a
215
Jason Fernando, Corporate Social Responsibility (CSR), INVESTOPEDIA, https://www.investopedia.
com/terms/c/corp-social-responsibility.asp (last updated Feb. 2, 2021).
216
Id.
217
See Id.
218
Id.
219
Ruiz v. Darigold, Inc., No. 14-cv-02054-WHO, 2014 U.S. Dist. LEXIS 113832, at *1 (N.D. Cal. Aug.
14, 2014).
220
Fogel v. Wal-Mart De Mexico SAB De CV, No. 13 Civ. 2282 (KPF), 2017 WL 751155 (S.D.N.Y. Feb.
27, 2017), aff'd sub nom. Fogel v. Vega, 759 F. App'x 18, 18-26 (2d Cir. 2018).
221
NEV. Rev. STAT. § 78B.190 (2020).
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126 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
corporation’s commitment to corporate social responsibility. In Ruiz v.
Darigold, Inc., the plaintiff customers sued Darigold, Inc. for not honestly
following through on their corporate social responsibility practices.
222
In the
company’s Corporate Social Responsibility Report, Darigold claimed to sell
“milk and milk products that have been produced in an environment that is safe
for animals, healthy for consumers, and respectful of workers’ rights.”
223
In
reality, the cows were injured and sick, and some had swollen udders.
224
The
plaintiffs sued by asserting claims under state consumer protection laws and for
common law fraud.
225
Ruiz showed that corporations can be held accountable
for not complying with their corporate social responsibility efforts.
226
One way to ensure corporations are complying with their corporate social
responsibility efforts is to have a committee overseeing these practices. In Fogel
v. Wal-Mart de México SAB de CV, the plaintiff claimed that the defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the
“Exchange Act”)
227
One of the defendants was on the Corporate Social
Responsibility team.
228
A footnote from the case mentions that
Wal-Mex Social Responsibility Committee is responsible for:
[p]articipating in designing the strategy for corporate social
responsibility and overseeing its implementation and performance;
[a]nalyzing areas of opportunity and pinpointing areas for
improvement regarding processes aimed at detecting the risks, needs,
and concerns of Wal-Mex stakeholders; [d]efining the strategy for
social responsibility, approving the action plan, and establish[ing]
metrics with clearly defined indicators for each business format; and
[o]verseeing and following through on the performance of corporate
social responsibility [and] ensuring full compliance with all legislation
in force.
229
222
Ruiz, No. 14-cv-02054-WHO, at *1.
223
Id.
224
Id.
225
Ruiz v. Darigold, Inc., No. 14-cv-02054-WHO, 2014 U.S. Dist. LEXIS 113832, at *1 (N.D. Cal. Aug.
14, 2014).
226
See id.
227
Fogel v. Wal-Mart De Mexico SAB De CV, No. 13 Civ. 2282 (KPF), 2017 WL 751155 (S.D.N.Y. Feb.
27, 2017), aff'd sub nom. Fogel v. Vega, 759 F. App'x 18, 18-26 (2d Cir. 2018).
228
Id.
229
Id.
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2. Corporate Activism
230
Corporate activism is another theoretical practice that more corporations
could adopt to enhance diversion and inclusion efforts. Corporate activism
occurs when companies advocate for policy change on social or moral issues.
231
“For meaningful corporate activism, businesses must support their words with
actions, and make activism part of their company values.”
232
To promote
diversity and inclusion while advocating against racial injustice, corporations
should adopt a corporate activism stance to support Black Lives Matter.
Kiely Kuligowski with the Business News Daily wrote about corporate
activism during the Black Lives Matter movement.
233
She focused on a stance
similar to this Comment that stated corporations should not only post statements
through marketing tactics but should actually change their everyday practices to
promote diversity and inclusion.
234
Kuligowski argued that corporations should
not partake in what is called “bandwagon activism.”
235
The “bandwagon effect” is a phenomenon where there is a high rate of
adoption of beliefs, ideas, or support based on the sudden popularity
of those beliefs or ideas. Therefore, bandwagon activism is when there
is a sharp increase in brands and businesses taking part in social
movements because support for those movements has increased in
popularity.
236
She wrote that bandwagon activism is not helpful in the long run because
corporations might not have a consistent image with their support of the issue.
237
In other words, the corporations might not support the issue in the long run if
they participate in bandwagon activism.
238
They support it when it’s “trendy,”
then move to the next issue when the previous one has died down from
mainstream media.
239
230
Joshua T. Beck, Black Lives Matter, LGBTQ Rights, Trump: The Risks and Rewards of Corporate
Activism, T
HE CONVERSATION (July 16, 2020), https://theconversation.com/black-lives-matter-lgbtq-rights-
trump-the-risks-and-rewards-of-corporate-activism-142540.
231
Kiely Kuligowski, How to Make Your Corporate Activism Really Count, BUS. NEWS DAILY (Aug. 19,
2020), https://www.businessnewsdaily.com/15772-meaningful-corporate-activism.html.
232
Id.
233
Id.
234
Id.
235
Id.
236
Id.
237
Id.
238
See Id.
239
Id.
JOHNSON_4.13.21 4/15/2021 11:16 AM
128 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
Kuligowski suggested six ways a business can support a cause in a
meaningful way and follow through with corporate activism.
240
The six ways
include: 1) look at your motivation for being involved, 2) be choosy about what
you speak out about, 3) make change in your organization before committing to
a major movement, 4) be consisted about your causes, 5) make change part of
your company values, and 6) find other ways to lend your support.
241
3. Benefit Corporations
Incorporating as a benefit corporation is another practice that corporations
could adopt to enhance their internal diversity and inclusion efforts. The term
“benefit corporation” refers to a type of corporate form where the purpose is not
only to make a profit but to also include a social benefit.
242
Benefit corporations
define a public benefit they will pursue in their articles of incorporation and can
be held liable if they fail to follow through.
243
A shareholder can sue for claiming
the corporation did not or has not followed through on the corporation’s public
benefit mission.
244
These cases are called benefit enforcement proceedings.
245
Benefit corporations are governed by state statutes, allowing each state to
determine its own requirements for incorporation.
246
Even though each state
determines its own requirements, three requirements are commonly found: 1)
have an expanded purpose beyond creating a profit that includes progressing a
public benefit 2) consider and balance decisions and how the decisions will
affect not only shareholders but also stakeholders, and 3) assess public benefit
progression performance through a third-party standard and make the
assessment report available to the public.
247
As a benefit corporation, a company could better implement social justice
initiatives since it will have the marketing as such a corporation, plus the liability
from stockholders and the public.
240
Id.
241
Id.
242
What is a Benefit Corporation?, BENEFIT CORP., https://benefitcorp.net/what-is-a-benefit-corporation
(last visited Mar. 28, 2021).
243
Id.
244
Yaniv Heled, Liza Vertinsky & Cass Brewer, Why Healthcare Companies Should Be(come) Benefit
Corporations, 60 B.C. L. R
EV. 75, 130 (2019).
245
Id.
246
What is a Benefit Corporation?, supra note 242.
247
FAQ, BENEFIT CORP., https://benefitcorp.net/faq#:~:text=Benefit%20Corporations%3A%201)%20
have%20an,make%20available%20to%20the%20public%2C (last visited Nov. 4, 2020).
JOHNSON_4.13.21 4/15/2021 11:16 AM
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CONCLUSION
As the results of analyses show, the corporations that put out statements in
support of the Black Lives Matter movement mostly focused on surface-level
issues, such as promises of hiring more diverse lower-level employees or
adopting extra diversity training. When looking at the actual makeup of each
company’s board of directors, though, each board falls short. Many of the boards
only have one or two people of color as a director, but the board could have six
or more total people, showing that people of color make up marginally less than
half of the total makeup.
Directors make decisions that affect the entire company. A company cannot
promise to be more diverse and inclusive if the board does not have proper input
from those in marginalized communities and diverse representation. While
corporations should put out statements and donate money, the companies should
also focus on the makeup of their high-level executives and directors. Even if a
company pledges to hire more black people as everyday employees,
fundamental culture changes of the company will not happen until it begins at
the top and flows down with people of color in executive roles.
Future steps in research could analyze if corporations have positions such as
a Chief Diversity Officers.
248
Chief Diversity Officers help companies
implement an organizational inclusion roadmap.
249
The person in the position
hosts events and panels, leads employee resource groups, deals with issues that
arise in the company that are related to racism, sexism, or homophobia; as well
as other tasks.
250
The Chief Diversity Officer chooses certain metrics to track
success in overcoming a lack of diversity and inclusion in the company, which
makes the position more successful than simply enacting diversity trainings.
251
Many companies have already hired such a position, but the SEC should require
it for every publicly-held corporation. Target Corporation has a Chief Diversity
Officer who expands diversity efforts in the company as a whole.
252
Zoom, a
company that has come into its light during the COVID-19 pandemic, also added
a Chief Diversity Officer.
253
Future research could also focus on corporations’ plans to avoid racial bias
in customer experiences. For example, Sephora announced a plan to mitigate
248
Sparkman, supra note 33
249
Mallick, supra note 4.
250
Id.
251
See Id.
252
Sparkman, supra note 33.
253
Mallick, supra note 4.
JOHNSON_4.13.21 4/15/2021 11:16 AM
130 EMORY CORPORATE GOVERNANCE AND ACCOUNTABILITY REVIEW [Vol. 8
racially biased experiences in its stores.
254
In 2019, Sephora commissioned a
year-long research project entitled The Racial Bias in Retail Study.
255
The results
from the study showed that three in five retail shoppers have experienced
discriminatory treatment while in the store.
256
Sephora plans to use the results
to address the issues in three areas: marketing and merchandising, in-store
experience and operations, and talent and inclusive workplaces.
257
Future research could also look at third-party accountability efforts that hold
corporations accountable for being more inclusive. For example, the Fifteen
Percent Pledge is an effort dedicated to calling on major retailers to commit a
minimum of 15% of their shelf space to black-owned businesses.
258
The name
comes from the statistic that black people in the U.S. make up nearly 15% of the
population.
259
So far, Sephora, Macy’s, Bloomingdales, Vogue, Yelp,
Madewell, Banana Republic, and select others have “taken the pledge” as the
organization calls it to sell at least 15% black-owned business items.
260
As seen, social movements can enact a lot of change. The long-term effects
of adding more diversity to corporate boards would make changes similar to the
Me Too movement. During the Me Too movement, many companies fired men
in powerful positions who had been accused of sexual assault or harassment.
Consequently, most of those men were replaced by women. Enacting the
proposed legislation and techniques in this Comment might make companies
more likely to fire racist people, even when they have high ranking positions,
and change their board of director strategies.
261
B
LAIR JOHNSON
*
254
Sonia Thompson, How Sephora Is Using Data to Eliminate Racial Bias And Foster Belonging In Their
Customer Experience, F
ORBES (Jan. 13, 2021), https://www.forbes.com/sites/soniathompson/2021/01/13/how-
sephora-is-using-data-to-eliminate-racial-bias-and-foster-belonging-in-their-customer-experience/?sh=3ead1
e5fefce.
255
Id.
256
Id.
257
Id.
258
FIFTEEN PERCENT PLEDGE, https://www.15percentpledge.org (last visited Feb. 12, 2021).
259
Id.
260
Who Has Taken the Pledge?, FIFTEEN PERCENT PLEDGE, https://www.15percentpledge.org/pledged
(last visited Feb. 12, 2021).
261
Carlsen et al., supra note 5.
*
J.D. Candidate (2022): Emory University School of Law.
