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Advancing Board Diversity: Nasdaq’s New SEC Approved Rule Falls Short for People with Disabilities • DirectEmployers Association

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In August 2021, the U.S. Securities and Exchange Commission (SEC) approved a request from Nasdaq, a stock operator, to require its listed companies to report on their diverse boards or explain the lack of diversity. The Nasdaq proposal defines diversity to include at least one female-identifying board member and one of another marginalized group, such as race and identifying as a member of the LGBTQ+ community. Corporate America has historically lagged in efforts to broaden racial and gender diversity at the highest levels of governance and leadership.

But one of America’s largest minority groups is excluded from the Nasdaq proposal to the SEC: people with disabilities. About 1 in 4 Americans is disabled, according to CDC estimates. In addition to people with disabilities, Nasdaq also excluded veterans. While the changes to boardroom diversity reporting are to be commended and embraced, the exclusion of disability and veteran status leaves a gaping hole in the inclusion conversation; instead saying they are additional diverse attributes to be considered without counting to a company’s overall diversity on the board of directors.

The 3,097 companies listed on Nasdaq are tech-heavy, including giants like Apple, Facebook, Microsoft, and Amazon. For employees, there are breadths of knowledge in complying with the Americans with Disabilities Act and compliance. Others provide supportive, more welcoming environments such as with all other forms of diversity, such as Employee Resource Groups – or offer additional disability-related support as part of a benefits package. All of these things are extremely important and useful for disability inclusion.

Nasdaq-listed companies are actively engaged with the disability community outside of the work environment, whether or not they know it: some ensure to have large-scale accessibility teams, while others incorporate disability issues into policy, user experience, and interface work. Even if disability issues don’t directly affect their employees, disability certainly affects consumers and shareholders, who look favorably upon businesses who are engaged in disability inclusion. 

Further, disability is one part of an intersectional identity and how someone lives their life and the experiences they’ve had. A director can be marginalized by gender, race, and/or sexual orientation, as well as disability. Sexism, racism, homophobia, transphobia, and ableism are often intertwined and can often be experienced by the same person.

The opinions and lived experience of board members make a difference in the direction a company may go in or a decision they might make. While I have never served on a corporate board of directors, I have served on several nonprofit boards, including and especially those engaged in disability-related services. I have often been the only neurodivergent or disabled person (let alone a woman) in the room, having to sometimes fight harder to be heard. Getting our seat at the table has proven to be difficult with ableism, but our perspectives are invaluable: maybe this will impact constituents in a certain way that is unintentionally harmful. As the old adage in disability rights (and the Autistic Self-Advocacy Network’s slogan) goes: “Nothing about us, without us.” My voice has a place, as do my disabled colleagues’ – especially those who are also multiply marginalized.

But Nasdaq and the SEC do have a point – people might not voluntarily disclose a disability or the “obvious” nature of a disability may only apply to people with apparent health conditions or physical manifestations, therefore further excluding and pushing out people with “invisible” disabilities like unseen health conditions, chronic illnesses, and mental health disabilities or neurodivergence. The only difference now with reporting is people who do have disabilities and serve on a board of directors will either have their disability discounted in reporting, their voices further silenced, or disability as diversity will further be viewed as a niche issue when it, in fact, impacts all of us: if we are fortunate enough to be alive for a long time, disability will touch our lives in some way, shape or form. Some of us were just born this way or acquired a disability sooner than others. I can only hope the SEC and Nasdaq realize the intersectionality and importance of disability as diversity in the future.

Haley Moss made international headlines for becoming the first documented openly autistic attorney admitted to The Florida Bar. She received her Juris Doctor from the University of Miami School of Law in 2018 and graduated from the University of Florida in 2015 with her B.S. in Psychology and B.A. in Criminology. Haley is a speaker, educator, scholar, and consultant on neurodiversity at work, the Americans with Disabilities Act, autism, and disability-adjacent topics.
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