[Ed. note: Lawrence is enjoying a well-deserved day off, so I am filling in with an update based on something I recently shared on our “Proxy Season Blog” on TheCorporateCounsel.net.]
Civil rights audits are the latest target of “anti-ESG” activism, with Strive Asset Management’s Vivek Ramaswamy sending a letter to Apple last week in connection with launching his second ETF, which is focused on large public companies. Lawrence has blogged about Ramaswamy’s other recent efforts to encourage oil companies to make capital investments in oil & gas production and to dissuade them from setting net-zero goals. Now, the author & investor is urging Apple to:
- Rescind any commitments to conduct a racial equity audit; and
- Commit to making all employment decisions based on merit, without regard to race, sex, or political beliefs.
On the same day last week, Strive also sent a letter to Disney urging it to commit to “political non-discrimination” and to “commit to making all decisions based on long-term profitability of Disney alone, without regard to social, cultural, or political pressure from employees, activist groups, or other stakeholders.”
Apple agreed to conduct its civil rights audit after a proposal on that topic received approval from a majority of its shareholders this past spring. In his letter, Ramaswamy continues to argue that institutional asset managers aren’t really shareholders, so their votes shouldn’t count. The letter suggests that Strive may submit its own shareholder proposal next spring, or take some action against directors, if Apple doesn’t address Ramaswamy’s concerns.
It was nearly two years ago when we first blogged about shareholder proposals requesting independent audits of corporate racial equity practices. This year, that proposal category – which now tends to address the broader concept of civil rights – has broken into the “Top 5” most common proposals, according to Alliance Advisors’ recent proxy season recap. And it’s not just the number of proposals that is making waves (49 submitted as of August 5th, plus nearly a dozen “reverse discrimination” audit requests from NCPPR) – it’s also the level of support they’re receiving. Here’s an excerpt from the memo (also see this ISS Corporate Solutions summary):
Proposals calling for racial justice reports made an explosive second-year appearance following the 2020 death of George Floyd and Black Lives Matter protests. Most centered around independent racial equity and civil rights audits after last year’s requests — primarily at financial institutions — resulted in four negotiated withdrawals and 33% average support across the nine voted. This year the proponents broadened their industry reach and tripled the number of filings. The 22 voted averaged 44.9% support and achieved eight majorities (see table below).
The memo goes on to note that ISS backed 77% of the resolutions this year – compared to 22% in 2021. ISS recently gathered feedback on this topic as part of its annual global benchmark policy survey, so it will be interesting to see whether & how their policy changes for 2023. Alliance Advisors noted that investor votes varied – e.g., BlackRock was largely supportive but didn’t back certain proposals due to the companies already making extensive disclosures about DEI efforts. Withdrawals were also important:
Less visible were proponents’ off-ballot successes. Seventeen proposals never reached a vote including at Amazon.com, Dow, JPMorgan Chase, Tyson Foods, Uber Technologies and Verizon Communications which publicly announced their intent to undertake an audit. Apple and McDonald’s also committed to a third-party civil rights assessment following their 2022 majority votes, as did Microsoft in mid-June.
The memo says that some companies have spent up to $1 million conducting these independent audits. If your company is at risk of receiving a proposal, you will not only want to consider the substantive pros & cons of eventually conducting an audit, but also start looking at the ROI of being proactive with DEI initiatives and disclosures. It will be important to frame any decisions and policies in a way that is business-centered: long-term value remains the underlying driver of these initiatives and “human capital”-related decisions in general. But with shareholders having different perceptions of what “long-term” means – and, in a tale as old as time, different views on how to maximize value and whether the corporate “social contract” matters – boards will need to continue to act in what they deem to be the best interest of the company and be prepared to weather criticism from both sides.
For a starting point on the steps of this process, visit our checklist on racial equity & civil rights audits – which is based on an awesome workshop we held in the spring with Covington’s Eric H. Holder, Jr. and Aaron Lewis, audit pioneer Laura Murphy, Airbnb’s Megan Cacace and SOC’s Tejal Patel. If you’re not already a PracticalESG.com member with access to this practical and essential guidance, sign up now and take advantage of our no-risk “100-Day Promise” – During the first 100 days as an activated member, you may cancel for any reason and receive a full refund.
