2nd Gender discrimination in the past
3rd Question about the causes of gender discrimination
4th Discrimination due to a lockstep
5th Question about the efficiency of a quota regulation
6th Question about the secondary effects of a quota regulation
7th Alternative proposals to eliminate discrimination
8th The prevalence of quota regulations
It is a widespread view that discrimination in the assignment of leadership positions can only be avoided by setting quotas by law for all groups of persons, which must correspond to the proportion of this group of persons within the population of a country.
In particular, the view is advanced that discrimination against women in the assignment of leadership positions can only be eliminated by such a women's quota. In general, however, this is not only about gender discrimination; what applies to the group of women must of course also apply to every other group of people. For example, when it comes to the question of how political offices are assigned, one could also demand that the proportion of religious groups or individual age groups or even people from certain countries in the assignment of leadership positions should correspond to their proportion in the entire population.
Mostly, the legal obligation to introduce such a quota is justified by the fact that experience has shown that a voluntary regulation would not be sufficient to eliminate the problem of discrimination. Therefore, it was now necessary to introduce a legal obligation to comply with such a quota.
In this line of argument, it is unrecognised that the problem of discrimination has nothing to do with whether certain social outcomes are introduced voluntarily or whether they are only compulsorily introduced due to a law. The only issue - as with the solution of any social problem - is whether the root causes of an unjust situation have been recognised and whether it has been possible to eliminate these causes. If the causes of a certain phenomenon have not been eliminated, the undesirable condition will not be eliminated, even if one tries to force the solution by law. Then there is the danger that the undesirable result (the assignment of leadership positions) will occur again in a different way.
To give an example, the equal assignment of the relevant groups of persons in terms of gender on the board of directors or administrative board of an enterprise does not prevent the tasks of the individual board members from being redefined and the attempt being made to assign to men the positions that have a greater amount of power. Furthermore, it must always be remembered that in every larger community not only formal, officially defined statutes are created, but almost always informal structures occur as well, which often run counter to the official order and thus frustrate the intention of the legislator.
Conversely, it also applies that if it has been possible to identify the actual causes of an evil and these causes have been successfully eliminated, discrimination can be avoided largely, even if it has been refrained from forcibly introducing this regulation by law. The main task of this article will thus be to trace the actual causes of discrimination and to examine the way in which these causes can be eliminated. At the same time, in addition to the question of the efficiency of a political measure, it must always be considered that almost every political measure can have undesirable secondary effects on other goals of social policy. Only then, when the expected benefits of a political measure are compared to the impairments of other socio-political goals, it is possible to assess this measure politically.
The question of the quota regulation is a special case of discrimination. In particular, two types of discrimination can be identified. Firstly, discrimination can occur if the rights and obligations assigned to certain persons are not based on objective criteria that are the same for all, but based on personal characteristics. For example, discrimination would be present if for a certain entrepreneur a special tax rate were introduced, which differs upwards or downwards from the general criteria.
It does not matter whether the amount of tax to be paid by this person differs from the amount of tax to be paid by the other taxpayers. For example, a general criterion can determine that a certain percentage of personal income is to be paid as tax to the state and even this percentage itself can increase with increasing income, as in the case of progressive income taxation. The only thing that matters is that objective criteria, applicable to all taxpayers, are established according to which the individual tax liability is assessed. Thus, if an entrepreneur XY has to pay an above-average or even below-average amount of tax, this regulation only contradicts the prohibition of discrimination if other criteria than those applicable to every taxpayer were used in the calculation of the tax amount.
A second type of discrimination occurs when the filling of leadership positions (or of all jobs in general) is based on criteria other than the suitability of the respective candidates for the tasks associated with this leadership position. In contrast to the first type of discrimination, there can be no equal treatment here by its very nature. It is true that one can demand that everyone should receive equal pay for equal performance. In the case of the filling of leadership positions, the number of applicants is usually greater than the number of positions to be filled, so not every applicant can be treated in the same way as everyone else. For example, when it comes to filling a position on the board of an enterprise, only this one position can be filled, even if several candidates apply for this position. Only one can be selected, the rest of the applicants go away empty-handed and are therefore necessarily treated worse than the person who was appointed to this position.
Therefore, discrimination is not already present here simply because the individual applicants were treated unequally, since only one of the applicants was entrusted with this office. Discrimination only begins here when the individual applicants are selected according to criteria that are not related to the facts. For example, an applicant would be selected because he or she is related to the head of the enterprise, or he or she would be excluded from the selection from the outset - irrespective of his or her suitability for this office - simply because he or she belongs to a certain religious community. In both cases, criteria would determine the selection which have nothing to do with the suitability of the candidate and for this very reason one would have to speak of discrimination.
The general prohibition of discrimination is laid down in the Basic Law (and also in almost all constitutions of liberal-democratic states). It is stipulated that neither gender nor race and religious affiliation may be the deciding factor in the determination of rights and duties. Initially, this does not necessarily mean that these characteristics should not play a role at all. Rather, it is decisive which criterion should decide how rights and duties are distributed and to whom certain positions are assigned.
For this type of selection criterion, the ability of the individual to fulfil the tasks associated with the position is particularly suitable. The suitability criterion contributes on the one side to the fact that the general welfare is the deciding factor in this way. The general welfare is best met when the candidate with the best suitability for the tasks at hand is selected.
But does selection on the basis of suitability also meet the criterion of justice in the best possible way? In other words: Is it unfair if an applicant is rejected because he or she is less suitable for the position than the applicant who was selected? The answer to this question of course depends crucially on how the aptitudes of the applicants are distributed. If one could assume that the aptitudes of the individual persons are equally distributed and that therefore everyone would have the opportunity to acquire the same competence on the basis of the same disposition, the suitability criterion would also have to be recognised as fair.
In reality, however, we must expect that in the past certain social classes have been denied access to secondary schools (universities). Here, it is the task of education policy to ensure that everyone gains access to all educational institutions, regardless of social background and only in consideration of individual predispositions.
It must be noted, however, that hereditary predispositions are also spread quite differently. Not everyone can achieve a mastery like that of Mozart or Einstein, no matter how hard the state may try to ensure equal starting opportunities. The extent to which this residual inequitable distribution of positions is to be assessed depends crucially on the rights and duties attached to the individual positions. Sometimes this distribution of positions is only judged according to the individual advantage in the form of income, power and prestige that the position brings to its respective holder.
However, this is not the real purpose of these leadership positions. When a prominent position is assigned to a candidate, it is primarily with the objective that the office holder has a societal task to fulfil. It is therefore first of all a matter of imposing duties on the office holder, which he or she must fulfil to the best of his or her ability. The fact that this holder is also granted certain rights is then related to the fact that these duties can only be properly fulfilled if the office holder is also granted certain rights. An entrepreneur, for example, will only be able to fulfil his duties properly if he also has a certain amount of own capital. The right to own capital arises here from the fact that risky investment and production decisions can only be carried out efficiently if the entrepreneur is also liable - at least in part with his own capital - for his actions.
Of course, the rights granted to management personnel also benefit the individual welfare of these position holders. As long as this manager also fully fulfils his task, this kind of reward is also justified. However, if the rights of the position holder are predominantly abused for individual goals and if he thereby violates his duties by not using the rights assigned to him for the fulfilment of the tasks, there is in principle the possibility of prosecuting the individual for having violated his duties. The Basic Law offers starting points for this by stating that property entails obligations.
2nd Gender discrimination in the past
Let us now look in more detail at the question of the extent to which gender differences exist in the filling of leadership positions with regard to suitability. In patriarchal society, a gender-based division of labour prevailed, according to which the management of the family and the household was largely the responsibility of women (the mothers), while the earning of income and other non-family tasks were to be fulfilled predominantly by men.
Due to these different roles assigned to men and women, young people were also brought up in such a way that they were then only prepared for their specific tasks as adults. Lack of suitability - if any - was then primarily the result of these role assignments and not at all the result of different hereditary dispositions.
Of course, there are certain hereditary differences between men and women, which can also have an impact on employment. This is true, for example, with regard to the fact that women cannot fulfil their gainful employment obligations for a certain period of time before, during and after childbirth. However, it is relatively easy to compensate for the disadvantages resulting from these differences when employing female managers by seeking compensation through tax relief or insurance.
However, these hereditary differences do not play a decisive role in the question of the suitability of the applicants because these differences refer to the average of a statistical group, whereas when filling a management position, the only question under discussion is whether an individual concrete applicant has a higher or lower suitability. The decisive factor here is the fact that the personal characteristics of applicants that are relevant for suitability also vary greatly within the genders. There is a wide range of abilities among both men and women, so that a woman may very well have a much better suitability than a male applicant in a specific individual case, even if one could assume that women on average would have a lower suitability for a very specific position.
3rd Question about the causes of gender discrimination
Let us now ask ourselves about the actual causes of gender-based discrimination in the filling of leadership positions. It is widely believed that market-based incentive systems are responsible for this kind of discrimination. Since enterprises make their decisions in order to increase their profits as much as possible, they would also strive to discriminate against individual groups of employees as far as possible.
This opinion does not correspond to reality. Gary Becker and other representatives of political economy have shown that under normal conditions of competition, enterprises damage themselves economically if they discriminate against certain groups of employees. It is precisely when enterprises are profit-oriented that they have an interest in avoiding any discrimination. Their profit is greatest when they fill every single position with the applicant with the highest suitability.
The more suitably a job holder can fulfil his task, the higher the productivity. And the higher the productivity, the higher the profit of this enterprise, ceteris paribus. An enterprise is therefore miscounselled if it wants to fill jobs with men who are less qualified for the respective task than the female applicants. An enterprise that would employ the most qualified applicants irrespective of their gender would thus achieve competitive advantages over competitors who would deliberately employ men even if they were less qualified than female competitors. The stronger the competition between the individual enterprises, the greater the incentives to avoid any kind of discrimination.
Now, these considerations that discrimination harms those who resort to this means initially only apply to a functioning market economy. A market economy only fulfils its tasks if certain conditions are met, and these include, above all, that enterprises are in intensive competition with each other. Now there can be no doubt that in modern industrialised countries this requirement for competition is by no means fulfilled in all sectors of the economy, that a large part of the markets is organised monopolistically or better oligopolistically, with a small number of large corporations sharing the market and for this very reason being able to dictate prices and raise them above unit costs.
Precisely because there are different incentive systems in consolidated markets than in competitive markets, the damage that an entrepreneur experiences when he discriminates under these conditions is lower. It is true for monopolistic as well as oligopolistic markets that every discrimination causes a reduction in the potential profit sum for the enterprises, since the unit costs are also higher here with discrimination than without discrimination and since cost increases are always reflected in a reduction in the profit sum in these markets as well.
The difference to competitive markets, however, is that an entrepreneur who is in intense competition with his competitors is dependent on realising every possible cost reduction, since he always runs the risk of losing customers to his competitors if he refrains from exploiting every possible cost reduction. This pressure does not apply to the monopolist. He is in any case in a position to increase the price and with it the profit by artificially making his products scarcer. In any case, he no longer risks his economic existence by discriminating against part of the employees, as the entrepreneur who produces under competition does.
Now one might object that the oligopolist is not the only one to offer his products on the market like the monopolist, he too has competitors, even if the resulting competition does not primarily encourage the entrepreneur to forego a conscious pricing policy. Precisely because the number of competitors is small and therefore the individual oligopolists usually know each other personally and meet at numerous joint events, circumvention of the ban on cartel agreements can hardly be controlled by a monopoly authority. Therefore, there is always the danger that even if several enterprises share the market, coordinated prices are nevertheless maintained through secret agreements or management positions are not allocated according to the suitability of the applicants.
Although the incentives for efficient production are lower in monopolies and oligopolies than in competitive markets, this difference is not sufficient to explain why women were discriminated against in the past not only exceptionally, but on a large scale when filling leadership positions. There must be other reasons for such an extensive practice, which actually results in profit losses for the enterprises.
4th Discrimination due to a lockstep
However, monopolistic power can develop even if there is no monopoly or oligopoly in morphological terms (i.e. measured in terms of the number and market share of the individual enterprises), as the work of C. A. Phillips has shown in a completely different field. In a paper from 1921, C. A. Phillips pointed out that private banks do have the power to expand the money supply even if the banknotes can be issued by a single central bank alone and the central bank pursues a restrictive monetary policy, and this by managing to create fiat money.
At that time, this thesis was generally considered to be wrong; it was common sense that private banks, when granting loans, only lend to their customers the money that they had previously received either from the savings deposits of their customers or on the basis of a loan from the central bank, and thus were not in a position to expand the existing money supply in circulation.
Phillips, on the other hand, has shown that the private banks are certainly in a position to increase the money supply in circulation, i.e., to create money on deposit, by succeeding, under certain conditions, in lending a multiple of the available money deposits to enterprises and households. Probably the most important prerequisite for such a possibility of money creation also on the part of the private banks is that the private banks proceed in lockstep, i.e. that they all make a joint effort to expand the credit line. Here, too, Phillips assumes ex pressis verbis that no formal cartel-type agreements, let alone a monopolistic merger of the private banks, would be necessary for such a lockstep to lead to success.
Since the largest part of the credit amounts made available to the enterprises will in turn flow back to the current accounts of the bank customers, the private banks will not get into liquidity difficulties when expanding their credit amounts, but precisely for this reason they are not dependent on borrowing from the central bank, which would however be necessary to ensure that the increases in the key interest rates must be passed on to the customers of the private banks.
Also, with regard to discrimination strategies, this initially incomprehensible behaviour of entrepreneurs can be explained with a kind of lockstep. In the past, the leaders of our society were taught guiding principles in which, among other things, a gender-based social division of labour was assumed. It was considered expedient that the necessary work within private households, especially parenting should be performed by mothers, be performed by women because women had a 'natural' aptitude precisely in the performance of these tasks, while men were assumed to have better aptitudes in the performance of tasks outside the family.
If the majority of the leadership elites are firmly convinced that the most important leadership positions in the economy and society should be held by male executives, there is no need for a cartel-like agreement between the entrepreneurs for gender discrimination. They can firmly count on the fact that even if they discriminate against women when filling leadership positions, they will not suffer any competitive disadvantages because they can be sure that their competitors also discriminate against women and thus forego possible productivity gains. It is true that these enterprises also forego possible increases in profits. However, this foregoing of profits does not worsen their competitive position, i.e. it is not a threat to economic survival; it can then also be seen as the price to be paid for men being able to keep to themselves in the executive suite.
The cause of such misconduct is clearly to be found in the fact that the wrong guiding principles are being instilled in the education of executives. It should be one of the most important principles of an education at secondary schools that the human rights enshrined in the constitution of liberal democracies (such as, above all, the prohibition of discrimination) must be observed at all costs.
5th Question about the efficiency of a quota regulation
Let us now ask ourselves to what extent the introduction of a legally required women's quota can achieve the goal of avoiding gender discrimination to a great extent. Within the framework of the efficiency analysis, we have to clarify to what extent a legally prescribed women's quota in the filling of board positions in the enterprises actually leads to equalising the proportion of women to that of men in this area, or at least to bringing it closer.
One might be tempted to assume that such a measure is successful per se, since the goal (increasing the quota of women) is so to speak decreed by law. We will see that answering the question of the efficiency of this measure is much more complex than it might seem at first glance. We must expect the possibility that laws can be circumvented de facto.
We do not even mean the fact that of course no law is always obeyed one hundred percent, there are always some people in all groups and social strata who violate state laws and become criminals, and no law enforcement and jurisdiction, no matter how perfect and well-functioning, can prevent laws from eventually not being fulfilled 100%.
Of course, even with the introduction of a legally prescribed women's quota, we must reckon with the fact that there will always be enterprises that violate this law and even manage to avoid prosecution.
This is a general phenomenon, according to which no earthly measure will be perfect and according to which there will always be violations of regulations. But in general, that means with a healthy development of the community, one can expect that these transgressions will be limited to a small percentage, which should be well below 10% (i.e. a few percentage points). We therefore do not need to consider these dangers in more detail here.
In further reviewing the effectiveness of this measure, it is important to distinguish between the implementation of a regulation following the letter of the law and the realisation of the objectives behind the regulation.
If enterprises are forced to fill board positions with more women and they are not convinced that this measure is reasonable and necessary, there is a danger that the very positions that are less important will be filled with women, or that if previously important positions are filled with women, they will become less important in the future.
Of course, it will be possible to avert these dangers to some extent by reformulating the laws accordingly. However, one must realise that these possibilities are limited.
Firstly, this issue is a race against time. When drafting a law, it is quite impossible for the legislator to plug all possible loopholes from the outset. On the contrary, it is to be feared that entrepreneurs who intend to torpedo these regulations will always find new ways to circumvent the objective of these regulations. New corrections to the regulations would then have to be made again and again, but these would themselves only be effective for a very short time, since in this case the unwilling entrepreneurs would presumably seek out new ways of evading the regulations.
Secondly, a distinction must be made between the leading positions in formal and real terms. Formally, the chairman of the board of directors or the chairman of the supervisory board is at the top of an enterprise. De facto, however, this does not mean that this top manager is also 'in charge'. Often, the basic decisions lie with the main shareholder, on whom in turn the formal board members depend.
Sometimes it is even the case that the formal boards serve as lightning conductor and are responsible for the negative consequences of a decision, while the actual decisions and the fruits of these decisions fall to the real holders of power in an enterprise, who, however, by no means always and automatically coincide with the formally appointed chairpersons.
Furthermore, it must be considered that unwilling enterprises could relocate their sub-enterprises or the entire enterprise abroad, where no legal women's quota is provided for. This effect could also be seen as an undesirable side effect on employment and growth or else as inefficiency, since either in this case not more board positions would be filled with women than before.
The degree of success of a measure continues to be determined by the seriousness with which it is prosecuted in these cases. Laws are generally obeyed more if the person who transgresses a law is also punished appropriately. The intention of the law may then be circumvented by the fact that violations are not brought to the attention of the criminal authorities, that no prosecution is initiated even when the criminal authorities learn of these violations of the law, or that the penalties are so low that they do not have any deterrent effect on the persons concerned.
For a legal women's quota to be effective, it is therefore crucial that precautions are also taken to increase transparency in these matters, that the criminal authorities are willing to initiate prosecution, that the criminal authorities are also equipped with personnel and means in such a way that they are enabled to do an efficient prosecution and that, finally, the level of punishment is set high enough such that it also acts as a deterrent.
Finally, it is also important for the efficiency of a measure that educational work must be done to convince entrepreneurs that such a measure is necessary, that it only serves to realise the prohibition of discrimination enshrined in the Basic Law and that enterprises which observe this law also do not experience any impairment in competition with other enterprises.
In general, it can also be assumed that laws in which the affected enterprises are involved in the legislative process by consulting the affected enterprises before passing a law are more likely to be implemented than when these laws are enforced against the will of the enterprises. Finally, the success of this legislation depends crucially on the implementation of these laws in the enterprises.
Of course, those affected are not formally involved in the shaping of the law. However, it is sufficient if the intention of a law is explained to those affected before it is passed and if they are given the opportunity to point out possible undesirable side effects or the lack of enforceability of a measure before the law is passed.
6th Question about the secondary effects of a quota regulation
Let us now turn to the question of whether the pursuit of this goal violates other goals of economic policy and social policy. Can these violations be avoided by additional regulations? In this context, it is particularly important to check whether the introduction of a legally prescribed women's quota does not cause new discrimination, not as before among women, but now among men. We can always speak of discrimination when, in a concrete individual case, i.e. when filling a position on the board of directors, decisions are not made on the basis of who is best suited for this position due to his or her qualities. There is a danger here that in individual cases the most suitable applicant is not selected precisely because he or she belongs to a gender group that has already reached its target quota. Therefore, if a women's quota is consistently enforced, it is to be expected that once again numerous discriminations will take place, which will now take place against men just as they did in the past against women.
In answering this question, a distinction must be made between an average effect, i.e. based on the entire gender group, and the question of how the respective concrete male/ female applicant presents him/herself in detail.
Generally speaking, it can probably be assumed that the aptitudes and performance capacity for entrepreneurial tasks do not differ significantly according to gender. The percentage of women who are suitable for entrepreneurial tasks should also not be smaller (probably not larger either) than the percentage of men.
Sometimes the assumption has been made in public that women were less suitable than men for entrepreneurial tasks. On the one hand, women have to be prepared for a temporary absence whenever they have to give birth, which puts a strain on enterprises, and on the other hand, entrepreneurial activity would require virtues and the ability to behave aggressively due to the fierce competition between enterprises, which was not as strongly developed in women as in men.
It is questionable whether the latter argument corresponds to reality. It may well be that in the past, more charitable character traits predominated among women. But this was probably more a consequence of a role model for women that was instilled for a long time in the context of education and certainly has very little to do with qualities that women naturally possess due to their gender characteristics. In the past, women were brought up in such a way that these characteristics were desirable for a woman, they were like that, as far as this labelling was true at all, because they were brought up that way and not because as a woman, they could not behave any other way at all.
With regard to a possible burden in connection with births, it can be pointed out that this circumstance has also not led to serious difficulties so far if, for example, women have filled leading positions in politics.
However, another circumstance is of greater importance. We have to realise that the totality of men and women are not social groups, but a statistical mass. A woman (or a man) belongs to the statistical mass because she or he has certain characteristics that are inherent to that group, but not because she or he lives in a community where advantages and disadvantages are shared.
Statistical masses are characterised by the fact that each member of this mass has certain properties, e.g. men cannot bear children, whereas women cannot father children. Apart from that, however, the character and physiological traits are widely spread, not every man (every woman) exhibits all traits to the same extent. It may even be true that, on average, women have fewer of the characteristics needed in the fierce competition between enterprises than men. In individual cases, however, when discussing which specific candidates for a particular board position have the better qualities, the male or the female candidate, it is still quite possible that the female candidate far surpasses the male candidate in terms of these aptitudes.
This means that when filling board positions, it always depends on whether the individual concrete applicants have the necessary qualities and not which statistical group on average possesses the required qualities.
Precisely because this is a statistical mass and not a social group, the discrimination that women have experienced in the past with regard to filling board positions cannot be offset against the disadvantages of men due to the introduction of a statutory women's quota.
When the application of this regulation means that a woman must be chosen to fill a position on the board of directors who is demonstrably less suitable for this position than a male competitor, this clearly constitutes discrimination against the respective man. The objection that the group of men could well be burdened here, since they were given preferential treatment in the past, would only apply if it were a matter of social groups, that in the past the group of men enjoyed advantages in which all men, including those living today, had a share. Then one could indeed speak of a justified equalisation taking place here. However, since men and women are statistical masses and not social groups, a concrete male applicant for a board position has not gained any advantages by the fact that other men were unjustifiably favoured, especially in the past.
Furthermore, we must examine whether other goals of economic policy will be impaired if a legally prescribed women's quota is introduced. Thus, we have to check in particular whether general productivity and thus economic growth will be reduced if such a measure is introduced.
Of course, it must be assumed that whenever the most suitable candidates are not selected for the upcoming board positions, the overall entrepreneurial decisions will be less optimal and therefore the productivity of this enterprise will decline.
However, this applies to every suboptimal decision, in our case to every wrongly filled board position, regardless of whether the most suitable candidate who was not selected is a man or a woman. If we can assume that in the past men were preferred to women to a large extent, although the women in the specific individual cases would have been better suited for the upcoming positions, then this has also led in the past to the fact that productivity did not reach its highest possible value.
Whether the introduction of a legally prescribed women's quota therefore leads to an impairment of general productivity then depends on whether the extent of discrimination was greater or smaller in the past than after the introduction of this regulation. It would also be conceivable that after the introduction of this regulation, discrimination against men would increase, but that in return there would be such a strong reduction in discrimination against women that on balance there would be an increase in general productivity. However, the undesirable discrimination of those men who were not elected because of the application of this provision, even though they are better qualified, remains.
7th Alternative proposals to eliminate discrimination
Let us furthermore ask ourselves what alternative measures are being discussed and how these measures perform in comparison to the introduction of a compulsory women's quota, both in terms of their efficiency and possible secondary effects. We had already pointed out above that the actual cause of these misconceptions (discriminations) is to be found primarily in the education policy sector and that education policy is therefore urged in the first place.
However, it is certainly not only necessary to make certain corrections in the educational process in order to bring about a change from these behaviours, at least in the short or medium term. Corrections must also be made in the labour market itself, which may very well have to be introduced or accompanied by legislative measures.
Perhaps it will help if we realise how this problem was successfully tackled in other areas of life. In the field of education, especially at the universities, there was also the problem that the chairs were predominantly occupied by men. The reason for this practice was that initially there were significantly fewer women studying natural sciences and economics. Thus, the first step was to create incentives for more women to complete their studies. After the number of women graduating with diplomas and final university examinations had come closer to that of men, the percentage of women graduating with doctorates was still significantly lower than that of men, although on average women's final grade certificates showed almost no difference to that of men. Even lower was the percentage of women that habilitated. Thus, the number of female applicants for a new filling of a professorial chair was considerably lower than that of male applicants.
The consequence was, of course, that men were entrusted with professorships more often than women, thus it was first of all necessary to ensure that the proportion of women in doctoral exams and habilitations increased.
In addition, procedures were introduced to ensure that women who apply for a professorial chair have exactly the same chances as male applicants. For example, it was stipulated that when newly appointed chairs were advertised, special reference was made to the fact that women could also apply. In addition, in the appointment procedures at the faculty level, a women's representative had to be involved in each case to ensure that there was no discrimination against women. The university senate, which had to confirm the appointment, had to check whether the procedure was considered correct by the women's representative. These procedural additions, as well as the fact that more and more women also did doctorates and habilitations, significantly increased the number of professorial chairs held by women.
But it is clear that this process takes time and that the reform is also carried out in the right order. To begin with, it would be of very little use to start the correction with the filling of professorships; such an approach would be inefficient because the number of female applicants will remain low as long as it is not taken care at the lowest levels of educational institutions to ensure that the number of female students broadly corresponds to their share of the population.
Similar procedures could also be introduced when filling executive positions in the entrepreneurial sector. Here, too, it could be provided that when executive board positions are to be filled in the supervisory board, the leadership positions must be publicly advertised, so that all female applicants are also informed of the vacancy of a leadership position. Furthermore, a women's representative should be designated to participate in the process of filling top leadership positions. In the event that this women's representative determines that the necessary care was not taken and that the female applicants were disadvantaged and that this determination can be substantiated with factual arguments, it could then be made easier for the female applicants who were not selected to challenge the decision before the labour courts.
If these procedural rules were initially introduced only for enterprises above a certain size (or only for stock corporations), if the involvement of a women's representative were made mandatory only for cases in which the women's quota realised so far differed significantly from that of men, and if, in addition, the simplified court procedures were limited to cases in which there were complaints on the part of the women's representative, the costs caused by these procedures would probably be kept within reasonable limits and still the women's quota would be decisively increased.
8th The prevalence of quota regulations
Our considerations so far have mainly been related to gender discrimination. However, we pointed out at the outset that the Basic Law not only prohibits gender discrimination, it also prohibits other forms of discrimination, specifically discrimination on the basis of origin or religious confession. Basically, this is about the formulation of human rights that are to be granted to everyone, no matter how much they belong to a minority in the population. Positively speaking, the claim is valid that equality before the law applies in a free and democratic constitutional state.
It is precisely for these reasons that the conclusions we have drawn with regard to the attempt to prevent discrimination via a legally prescribed women's quota apply in essence to all types of discrimination. However, this also means that whenever one proceeds from the conviction that the introduction of a legally prescribed women's quota is an efficient and desirable way to prevent gender discrimination, it is also necessary to apply a quota regulation to the other types of discrimination. Why, for example, should employees with an immigrant background accept an inequality of starting opportunities when they have to realise that women have been successful with this regulation and have seemingly achieved in this way a reduction in discrimination.
The fact that women have fought for their rights through the quota regulation will inevitably lead to demands to apply a legally required quota to other types of discrimination as well. However, the negative effects of a quota regulation described for gender discrimination will be intensified if this quota regulation spreads to other forms of discrimination.
However, if a quota regulation spreads and if this is therefore the most important way to fight discrimination, the alleged successes of the quota regulation with women will in turn be undermined for precisely these reasons. If an enterprise needs to fill a new management position, it must not only be checked whether the number of positions filled by women corresponds to the proportion of women in the entire population, but this question must also be checked with regard to the quota achieved for other traits.
The probability that in the case of an understaffing, e.g. of women, also an understaffing will have to be determined for other groupings, which is even greater than the gender understaffing, increases in any case the more a quota has to be observed for certain characteristics. However, this necessarily means that the probability of a woman being able to expect a vacant leadership position has now been reduced again compared to a situation in which a quota for women alone was prescribed.
However, we do not only have to observe that the commandments to adhere to certain quotas when filling leadership positions block each other. Of even greater importance is the fact that in this way there is a growing danger that when it comes to filling management positions, less and less the applicant will be selected who is best suited for the specific position. The fulfilment of the quota has clear priority in this question, since it has to be fulfilled by law. Selection on the basis of suitability, while highly desirable, is however not required by law and for that very reason is subordinate.
Now, we have seen above that the actual measurement of whether there is discrimination between two applicants must be measured expediently by the question of which applicant has the best suitability for the intended leadership task. Only in this way can the operational success, and thus also the general welfare, be fulfilled in the best possible way. For reasons of justice, such a regulation can also be accepted. First of all, it should be noted that as a rule the number of applicants exceeds the number of vacancies, and that in this respect complete equal treatment is not possible at all.
On the one hand, it is partly up to the efforts of each individual to improve its performance and thus increase its chance of being selected. On the other hand, when filling a leadership position, it is not primarily a matter of allocating personal rights to leaders, but rather duties, and it is then also the task of the internal company regulations to ensure that leaders fulfil their duties and that they can also be demoted if they have violated their duties.
A broadening of the quota regulations, however, has another negative effect. The more an enterprise has to observe certain quotas for different characteristics, the more it is overburdened the smaller its number of employees. Only a large enterprise that has reached a certain minimum size is in a position to fulfil all quotas. Let's take the extreme case where an enterprise with 100 employees has just two leadership positions to fill this year, but three different quotas have to be met. A quota for women, a quota for Mohammedans and a quota for Africans. It would be pure coincidence and extremely unlikely that the applicants for these two positions would have the features that would allow all the required quotas to be met.
The probability that in this case the most suitable applicants cannot be appointed is much greater than in a large enterprise where a large number of positions must be filled every year. Precisely because inefficient solutions have to be chosen here, these small enterprises suffer competitive disadvantages, which in the long run will result in an increase in the number of large enterprises. As a rule, this concentration process leads to an increase in monopolistic market structures. This would not only mean that the orientation of production towards consumer wishes would be reduced, but at the same time the de facto possibilities for discrimination would increase.
These tendencies are then exacerbated by the fact that small enterprises have to fear that they will be fined by the courts for not complying with the quota regulations, or that they will have to create new leadership positions for the sole purpose of complying with the quotas. All these effects have a negative impact on small enterprises on the one hand, but on the other hand they increase the number of cases of de facto discrimination.