Diversity Disclosure Requirements: SEC Staff Issues New C&DIs Clarifying Regulation S-K Requirements

Item 401(e) requires a company to "briefly discuss the specific experience, qualifications, attributes or skills that led to the conclusion that the person should serve as a director...." If diversity is a factor that is considered when nominating directors, Item 407(c)(2)(vi) requires a company to discuss how "the nominating committee (or the board) considers diversity in identifying nominees for director." Additionally, Item 407(c)(2)(vi) requires a company to disclose whether its "nominating committee (or the board) has a policy with regard to the consideration of diversity in identifying director nominees" and a description of how such a policy is implemented.

The New C&DIs address the type of disclosure required under Items 401(e) and Item 407(c)(2)(vi) when board members or nominees (i) voluntarily provide certain self-identified diversity characteristics, such as, race, gender, ethnicity, religion, nationality, disability, sexual orientation or cultural