ACLU’s Melissa Goodman on Gender Discrimination: It’s a Legal and Civil Rights Problem

ACLU on Gender discrimination Among TV
Courtesy ACLU

Earlier this year, the ACLU of Southern California sent a letter to two federal agencies and one California agency, asking them to look into discrimination in the hiring of women as directors in television and film. In October, it was reported that Equal Employment Opportunity Commission, one of the federal agencies, has opened an investigation and has begun interviewing women in the entertainment industry (including some of the directors interviewed for this story on the lack of diversity in TV directing rosters).

The ACLU began its investigation two and a half years ago, and in the course of that inquiry, talked to dozens of women about the hurdles they face in establishing and building a career as directors in the industry. 

Melissa Goodman is the director of the LGBTQ, Gender & Reproductive Justice Project at the ACLU of Southern California, and she spoke about why the ACLU looked into this matter, what the organization found and what may happen next. This interview has been edited and condensed. (Here are links to the entire series of interviews related to the story on directors and diversity.) 

Can you talk about the roots of the ACLU’s involvement in this issue?

The ACLU obviously has a history of looking into gender discrimination in industries that are historically male-dominated. Hollywood qualified as one such industry. Initially a group of women directors contacted us to bring to our attention the very glaring statistics about the exclusion of women. We took a look at those statistics ourselves and said, “Those numbers alone suggest there’s a real problem here.”

In the law world, statistics alone don’t necessarily prove there’s discrimination going on. But even the Supreme Court says, when you look at an industry and the numbers of women getting work are close to zero or substantially lower than they should be, they tend to show that there’s some bias going on. So we looked at the wide range of statistical data that was out there and we said, “We have to really dig into this more.”

We launched a story-collection process and for about two years we conducted our own investigation. We looked at all the statistics that could be gathered. We tried to interview as many women as were willing to speak with us, and we wrote to the government civil rights agencies in May. At that point, we had interviewed about 50 women. Now the number is higher, but at that point we had had that number. Basically, what we learned through that investigation painted what I think is a disturbing picture of very long-running systemic discrimination throughout the industry.

This story will focus mainly on TV and how the hiring of directors works there.

I’m glad that you’re focusing on TV, because a lot of the people that we talked to — so many people were giving up on film, because it was just a bit too obvious that you’re never going to get any opportunities. You have to turn to television. That’s where all the jobs are, but the exclusion was still happening there.

We wanted to do the interviews because we wanted to bring a voice and a face to like some really cold, hard numbers. And what we learned wasn’t surprising — women directors were basically facing common systemic barriers to getting jobs. There were common problems we heard about over and over again. Some people were experiencing overt discrimination or discriminatory comments that were obvious, like, “Oh, we already hired a woman this year.” “We don’t hire women for this show because women just don’t work out with our cast and our crew.” The fact that people even still experience that in this day and age is kind of shocking, and says something about the culture of the industry — that it’s still acceptable for people to say things like that. It shows that there is a deep bias problem going on.

I had a woman director tell me someone said to her, “You direct just like a man.” And this person thought it was a compliment.

Exactly, yeah. I’ve heard a lot of that. Or the number of people who go to meetings for shows and the first question [makes it seem like,] “Oh, it’s a woman director!” Like she’s an alien.

But beyond the obvious things that we were hearing, there was just rampant, rampant unconscious bias happening and sex stereotyping that was happening. It’s sex stereotyping that limits the projects that women are even considered for, or even if you get a job, how does sex stereotyping follow you as you do that job? How are you evaluated at that job? We heard about a lot of problems about the [director] lists and the fact that women are not on enough lists or up for consideration for jobs and the various ways that happens.

What we saw after this investigation was that the exclusion of women directors from film and television jobs was a very serious civil rights problem, in addition to being a very troubling cultural problem, which I’ll touch on in a second. But it was a serious civil rights problem. We didn’t think we were bringing to light anything new. This was a problem people had been talking about forever and ever.

But what we thought we could help [with] was to put this frame on it — that it’s not just some problem everyone should wring their hands about every year and say, “Too bad there’s not enough women.” It is actually a legal problem in this huge, important industry in southern California and in our country that is basically excluding women from work. And that is a legal problem and it is a civil rights problem. Gender discrimination is illegal and Hollywood doesn’t get a free pass to violate civil rights law just because of the product that it’s creating.

We thought this was very important because the effects of this exclusion from director positions is a cultural matter. I really think that film and television are powerful and influential cultural products. But they’re overwhelmingly made by men telling male stories depicting women through a male lens. And often women are stereotyped, and that matters and it shapes how a million girls see themselves and it [reinforces] the division that boys and girls have about the opportunities that the world presents to them.

So the thinking is that the stories that get told can ultimately shape what we value in real life.

Absolutely. And obviously because we care about the employment aspect of this, there should be no industries where women are effectively shut out or vastly underemployed in the way women are for directing jobs. But also as a civil rights advocate who does gender-equity work more broadly, the discrimination happening within culture production actually helps reinforce discrimination that happens in the wider world.

We acknowledge absolutely that there is gender bias basically throughout all positions in Hollywood. We chose to focus on directors. We were approached by directors, but also [this aspect was pursued] because directing is a leadership position. And we thought that so much of what keeps women out of leadership positions is the bias that [hinders them getting there] and then has them evaluated more harshly when they get there. It’s important to go for leadership positions in the hope that change there would kind of trickle down to other positions.

This fall, the decision was made by the ACLU of Southern California to bring the investigation to two federal agencies and a state agency. Can you talk me through that part of it?

Sure. After looking at the statistics and interviewing all of these women and getting these anecdotal experiences of discrimination, we just said, “There’s so much here that shows real systemic bias throughout the entire industry.” There’s lots of ways you can go about trying to fix that. But one way is to go to government agencies that are actually tasked with enforcing civil rights laws in our country. And there are federal agencies and there are state agencies and they have some special powers. Powers they don’t use too often, but special powers to look at systemic bias when it affects an entire industry.

We thought that the problem was serious enough that it was very worthy of the time, energy and resources of these government agencies to take a look at this and take it on. So we compiled all we had learned into a letter that we sent in May to three civil rights agencies asking them to launch an investigation into whether there was systemic bias against women directors in film and television, and to use their special powers to take on systemic bias in this way. The agencies are the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs, which oversees federal contracts, and the California Department of Fair Employment and Housing.

The reason we went to the OFCCP is because a number of the major studios are actually significant government contractors. When you get government contracts, you actually sign up to have particular affirmative action and anti-discrimination obligations. So we brought it to their attention as well. The state agency is basically like the EEOC in California. They enforce California’s anti-discrimination laws. 

Where does the ACLU stand now? What is the organization’s role at this point?

We see our job as two-fold. Our job is to keep pushing civil rights agencies and make sure that they do something to tackle this problem and that whatever gets done makes a difference. And we continue to be public about this problem and talk about it as being a serious civil rights problem that people need to be paying attention to.

Obviously there are issues with the employment of people of color as directors as well. Where does that part of it fit in for the ACLU?

Our specific investigation was focused on women directors. That obviously encompasses the particular problems that women of color face in the industry. If the numbers for white women are dismal, the numbers of women of color are atrocious. Women of color face enormous barriers to getting work. But our particular inquiry focused on women. We however completely recognize and acknowledge that there are serious, serious issues when it comes to race and racial diversity and hiring as well. But we had to start somewhere, and we started in the place where we were approached by women directors to take on this problem.

In our letters to the government agencies, we certainly talked about how there was both a gender and a racial aspect to this. And historically the EEOC has some history of scrutinizing diversity in Hollywood. When they did it in the past, they looked at both race and gender. So if any of these agencies wanted to take on racial problems in addition to gender, they could absolutely do so. And they’re obviously intertwined.

What might happen next? I know you can’t speak to the specifics of what might happen in this case, but hypothetically, how do these cases progress?

This is the hypothetical scenario. Generally, if a government civil rights agency were to do what we suggested, typically there would be a long investigatory period. It’s hard to put a time frame on things. What they decide to do kind of at the end of that obviously depends on what they learn in the investigation. They have the power to do nothing or to act. Acting can take the form of potentially filing what are called in, the case of a federal agency, “commissioner’s charges.” In the case of a state agency, there would be “directive charges.”

The difference is — let’s say I experienced discrimination in my job tomorrow. I, as an individual, could go file a complaint of discrimination with one of these agencies. I could say, “I work for Corporation X and they discriminated against me.” This process we’ve asked these agencies to consider invoking is different. They don’t need an individual like me to step forward. Instead what they do is they investigate an industry as a whole.  They can say, theoretically, “We find that there is systemic bias,” and they can file charges themselves, as the agency, against a whole bunch of employers. Or they could pick one and make an example of them.

So they can do that on their own without needing an individual complaining about a specific incident of discrimination. 

Many of these companies trade on good reputations, and certainly one person filing a lawsuit isn’t great for them, in theory. But if the federal government were to potentially take action — it sounds like that’s a whole different kettle of fish.

Absolutely. At the end of the day, it’s our hope that this will happen and that the agencies will take serious actions. But it can be a slow process. In the meantime, I think the discussions about it are important, because at the end of the day, change will happen when people with hiring power recognize that they have to do something to fix the problem.

From what we’ve observed, and from the many, many women and others that we’ve talked to in the industry, part of the problem is that so much of this is about unconscious bias. Every single person with hiring power who’s not actively trying to hire more women and people of color — they are part of the problem. It’s not enough to say like, “I’m not biased. I do happen to hire mostly white men, but I’m not biased.” That’s part of the problem.

My hope is that people are becoming more conscious of this and will acknowledge and help solve the problems. That doesn’t mean that you have to acknowledge that you’re a horrible discriminator, but it means that if you don’t step up to say, “We don’t do a good enough job on this show of hiring women,” or, “We don’t do a good enough job at this network of making sure women directors are hired,” you are part of the problem. You have to take responsibility for that.

When it comes to the hiring of directors in TV, it’s a very diffuse process and everyone says they are not the problem. It’s not the studio. It’s not the DGA. It’s not the network. It’s not the showrunner. And in the end, the result are often remains the same, year after year. What is your take on that circular “nobody is to blame” aspect of it?

I agree that it’s complicated and diffuse and everybody can point the finger at someone else. “It’s not me, it’s that I get lists from the talent agencies that don’t have any women on them.”

But what we wrote to the government civil rights agencies was, we need a conscious decision to talk about every single facet of the system and every single player, because we wanted paint the picture of how the problem is at the totality level. And if you don’t tackle it at each place, you’re not going to get to the right result, because people can continue to pass the buck and say it’s somebody else’s fault.

It’s hard work and it will be slow and it requires a collective consciousness about it: “We’re actually going to put some effort behind tackling the problem.” Because let me just say I also think that if there was a will to seriously tackle the problem, the problem would be tackled.

It’s not actually hard to hire women directors. It’s not actually hard to find women directors who are talented and qualified and able and willing to work. There’s this perception that it’s harder but it’s my understanding, as an outsider having talked to a lot of people now – it isn’t hard. If people made it a priority and made it important and made it something that was a part of what was required of their shows, there would be a perceptible move in the numbers.

One thing that I’ve heard from various people in the industry is that if someone doesn’t have recent directing credits and they’re not already in the DGA, then they’re less likely to be considered.

They have to recognize that that in and of itself is a barrier and it can be a discriminatory barrier. This stuff is not unique to Hollywood. This is true in all industries when there’s a hiring bottleneck. You have to understand that the pool coming to you might be skewed by bias. And if you work in a way where only the people who have already broken through the network — the white guy’s network — are the only people you consider, then that’s a problem.

There are also shadowing programs that are meant to bring people into the pipeline.

Yes, there is already this effort to put energy behind having programs that are supposed to create a [more diverse] pipeline. But I think there has to be some open acknowledgement that the current programs out there aren’t working, right? There is this energy and commitment to doing some kind of program that is theoretically supposed to give people their first break. And I think more effort needs to be put towards making those actually more effective — toward actually requiring that there be a job, an episode [that the participants direct], at the end of that program, so somebody actually gets that credit.

There could be efforts to create a different kind of mentoring structure [that would allay the concerns of those who are] nervous to give somebody their first break. In the shadowing system, somebody with less experience just kind of sits and watches the more experienced person  work. But what if you had programs where the newer person is doing all the work but they’re being shadowed and mentored by the very experienced person? Maybe a woman, maybe a man — who cares?

Programs like that exist in other industries. Maybe it’s just a matter of changing the way those programs work to make them better.