US SEC Corp Fin Issues New Compliance & Disclosure Interpretations on Diversity > Human Capital Components

11 Feb 2019 4:24 PM | Brad Monterio

This is just an FYI as it relates to regulatory oversight of Diversity & Inclusion in the US - both components of human capital (and perhaps social/relationship capital) and potential drivers of intellectual capital and financial capital - by the US SEC. 

On February 6, 2019, the SEC's Corp Fin area released new Compliance & Disclosure Interpretation (CDI) from the SEC under Reg S-K that relates to diversity disclosures among directors etc. 

The new CDI updates apply to both Item 401— Directors, Executive Officers, Promoters and Control Persons and Item 407—Corporate Governance.  Interesting development from a regulator.

Updated SEC Interpretations of Specific Sections in Reg S-K shows up in 2 sections, 116 and 133, as highlighted below.  The interpretation is the same for both questions, and it shows perhaps some new or expanded thinking on the topic.  However, the interpretations both seem to focus only on the tangible, more visible characteristics of diversity (e.g., gender, race,) and does not reference something more inclusive such as diversity of thought (I would not expect the SEC to do so at this time either).

Nevertheless, I thought this was an interesting development.  It may not move mountains, but it gets diversity (and hopefully inclusion more explicitly) onto radar screens of issuers in the US.  The state of California already mandated recently that women must be on board of directors, which paved the way for considerations at the federal level.  This past week, legislation was also introduced in both houses of Congress on similar diversity topics.  Diversity and Inclusion, both contributors to human capital and others potentially, are not coming off the back burner and to the forefront increasingly.  This is a good indicator of what may come.  More importantly, I am thinking ahead to what may become best practice and the 'right thing to do' among corporates, regardless of the existence of regulatory mandates or laws.

Here are the details below from the SEC interpretations:

Section 116. Item 401 — Directors, Executive Officers, Promoters and Control Persons

Question 116.11

Question: In connection with preparing Item 401 disclosure relating to director qualifications, certain board members or nominees have provided for inclusion in the company's disclosure certain self-identified specific diversity characteristics, such as their race, gender, ethnicity, religion, nationality, disability, sexual orientation, or cultural background. What disclosure of self-identified diversity characteristics is required under Item 401 or, with respect to nominees, under Item 407?

Answer: Item 401(e) requires a brief discussion of the specific experience, qualifications, attributes, or skills that led to the conclusion that a person should serve as a director. Item 407(c)(2)(vi) requires a description of how a board implements any policies it follows with regard to the consideration of diversity in identifying director nominees. To the extent a board or nominating committee in determining the specific experience, qualifications, attributes, or skills of an individual for board membership has considered the self-identified diversity characteristics referred to above (e.g., race, gender, ethnicity, religion, nationality, disability, sexual orientation, or cultural background) of an individual who has consented to the company's disclosure of those characteristics, we would expect that the company's discussion required by Item 401 would include, but not necessarily be limited to, identifying those characteristics and how they were considered.Similarly, in these circumstances, we would expect any description of diversity policies followed by the company under Item 407 would include a discussion of how the company considers the self-identified diversity attributes of nominees as well as any other qualifications its diversity policy takes into account, such as diverse work experiences, military service, or socio-economic or demographic characteristics. [February 6, 2019]

Section 133. Item 407 — Corporate Governance

Question 133.13

Question: In connection with preparing Item 401 disclosure relating to director qualifications, certain board members or nominees have provided for inclusion in the company's disclosure certain self-identified specific diversity characteristics, such as their race, gender, ethnicity, religion, nationality, disability, sexual orientation, or cultural background. What disclosure of self-identified diversity characteristics is required under Item 401 or, with respect to nominees, under Item 407?

Answer: Item 401(e) requires a brief discussion of the specific experience, qualifications, attributes, or skills that led to the conclusion that a person should serve as a director. Item 407(c)(2)(vi) requires a description of how a board implements any policies it follows with regard to the consideration of diversity in identifying director nominees. To the extent a board or nominating committee in determining the specific experience, qualifications, attributes, or skills of an individual for board membership has considered the self-identified diversity characteristics referred to above (e.g., race, gender, ethnicity, religion, nationality, disability, sexual orientation, or cultural background) of an individual who has consented to the company's disclosure of those characteristics, we would expect that the company's discussion required by Item 401 would include, but not necessarily be limited to, identifying those characteristics and how they were considered. Similarly, in these circumstances, we would expect any description of diversity policies followed by the company under Item 407 would include a discussion of how the company considers the self-identified diversity attributes of nominees as well as any other qualifications its diversity policy takes into account, such as diverse work experiences, military service, or socio-economic or demographic characteristics. [February 6, 2019]

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