California recently enacted a law requiring gender balance on the boards of public companies headquartered in the state, but the prospect of similar legislation in Delaware is widely seen as a long shot, attorneys said.

Delaware, home to most of the nation's publicly traded corporations, has a long tradition of allowing the “private ordering” of corporate affairs, leaving governance largely to shareholders. Gender diversity on the boards shareholders elect is not viewed differently, even in the era of the #MeToo movement.

“It's a level of a kind of regulation that traditionally [lawmakers] have stayed out of,” P. Clarkson Collins Jr., chair of Morris James' litigation practice group, said in an interview.

The law requires California-based companies to have at least one woman on their boards by the end of 2019. By 2021, companies with five directors would need to have at least two female directors, and companies with more than six directors would be required to have three women on their boards.

The measure, signed into law by Gov. Jerry Brown in late September, is generally seen as a step toward boosting diversity in U.S. boardrooms. However, California businesses have argued that it violates both the state and federal constitutions on the grounds of gender discrimination.

In Delaware, the policy has yet to gain traction with members of the General Assembly, and no lawmakers have publicly floated the idea of introducing similar legislation when the legislature reconvenes in January. Multiple calls to members of the state House and Senate this month were not returned.

The issue, in some ways, raises questions that are specific to Delaware politics. Lawmakers in Dover generally rely on the corporation law council of the state bar association to draft annual proposed amendments to the Delaware General Corporation Law, which are then debated and, almost always, approved by the General Assembly. Rarely do bills that originate outside that process ever come up for a floor vote.

“I would not expect that kind of law change to occur,” said Collins, who chairs the corporation law section of the Delaware State Bar Association.

According to Collins, large institutional investors are already advocating for greater diversity among directors, and companies have started to respond.

“I think you're going to see more diverse boards, more women on boards of directors, because it's good business. It makes for a more successful company,” he said.

State Rep. Melanie George Smith, D-Bear, a Richards, Layton & Finger partner who long acted as the primary liaison between the DSBA and state lawmakers, said that instead of imposing regulations on businesses, legislators typically find ways to allow companies to opt into initiatives that fall in line with the state's policy objectives, as well as the interests of the business community.

She pointed to a measure, passed in early May, that charted a path for companies to apply for a certification of sustainability from the Delaware Department of State, if they adopt guidelines and make certain disclosures regarding their efforts.

“Instead of choosing to regulate it, we've chosen to support companies that choose to be sustainable,” said Smith, who is retiring from the General Assembly in January. “It's a big distinction but the same end goal.”

Still, legislation to mandate gender balance could be an appealing goal for some lawmakers, especially since the #MeToo movement has spurred a national conversation over power dynamics and the voice of women in the workplace. Delaware has a strong contingent of progressives, who have been fighting for greater influence within the Democratic Party, and a measure like California's could fit within their broader agenda.

But Smith said any major changes to Delaware's traditional model remained unlikely heading into the next legislative session.

“I think there's enough legislators that still appreciate that we're Delaware, and this is who we are and what we are,” Smith said. “You've kind of got to pick your battles at some point , and that's just a battle that the progressives are going to have to decide how they want to handle it.”