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How Tax Credits Could Bring About Inclusion in Hollywood (Guest Column)

The demand for equity in Hollywood has never been more explosive. Yet Hollywood’s proposal for the next version of California’s Film and Television Tax Credit Program, which sunsets in 2020, may ignore its inclusion crisis. That would be a big mistake.

The program doles out hundreds of millions of dollars to film and TV productions filmed in California each year. The competitive application process considers job creation and wages, with bonus points for things such as days shooting in a facility or outside Los Angeles. Additional money after production — uplifts — is available for in-state visual effects, music recording and scoring.

The program has created jobs and boosted wages, especially for below-the-line workers. But those who get these jobs that tax incentives support do not accurately reflect the diverse array of qualified people who live and (hope to) work here. Women, people of color, LGBTQ people and people with disabilities still lack equal opportunity.

The data is so clear and oft-repeated as to be utterly boring: Films and TV shows are overwhelmingly made by a homogeneous group of people, and change is slow, with historically marginalized groups getting a tiny slice of the job pie behind the camera. And it’s obvious individuals among these groups are also seen and speak far less on-screen.

The movement to transform Hollywood’s hiring practices has been building for years, in the form of external pressure from the ACLU and the federal EEOC investigation and reported charges against studios for discrimination against women directors; damning data and pressure from researchers at USC, UCLA, San Diego State and groups like Women and Hollywood, Color of Change, #OscarsSoWhite and GLAAD; and internal initiatives like ReFrame by Women in Film and Sundance, 5050by2020 and Time’s Up.

But real monetary incentives could seriously move the needle. Here’s how the tax credit statute or regulations could do it:

  • The program could require applicants to state a plan for inclusive hiring, with concrete recruitment and hiring targets to place historically underrepresented people in crew positions more in line with their presence in the population.
  • It could require productions to use the much-talked-about inclusion rider, promoted by Frances McDormand and adopted by folks like Michael B. Jordan, Brie Larson, Paul Feig, Ben Affleck and Matt Damon. The rider, among other things, requires something akin to the NFL’s Rooney Rule: ensuring people from historically marginalized groups are actually recruited and interviewed for key roles.
  • The program could provide bonus points for applications with women, people of color, LGBTQ people, and/or people with disabilities attached as director, writer or lead actor.
  • It could provide uplifts (later, additional credits) for hiring crews that mirror California’s diverse, qualified labor pool for these jobs. Uplifts could also be given when people from historically marginalized groups are hired in production leadership positions where stats are dismal.
  • The program could demand repayment of some funds if inclusion promises and targets are not met.

Having concrete plans and targets for recruiting and hiring, when done carefully and to fix demonstrated employment imbalances, is perfectly legal. Affirmative action plans are legal if they rectify imbalances in positions where equal representation is a quantifiable problem or discrimination has historically occurred, so long as the result does not unduly burden the rights of employees outside the target groups. In other words, if certain groups have been denied equal opportunity to meaningfully compete for or hold certain jobs, affirmative action plans and hiring targets that fall short of rigid quotas are allowable under discrimination law.

Reasonable actions employers can take to rectify imbalances include setting long- and short-term goals and timetables that do recognize identity characteristics of applicants, targeting recruitment to attract people with certain identities, and having processes to make sure members of certain groups who are qualified for the job are in the pool from which the selection decision is made.

Nor is Proposition 209 any automatic barrier to this strategy. That measure’s terms restrict the state’s affirmative action practices in public employment, education and contracting. Tax incentives are none of these things.

Governments can incentivize increasing employment opportunities for groups that are underrepresented due to discrimination. California should make the move.

Melissa Goodman is the Audrey Irmas director of the LGBTQ, Gender and Reproductive Justice Project at the ACLU of Southern California.

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