Kalpana Kotagal, one of the lawyers behind the inclusion rider, wasn’t awake to see the project she’d been laboring on for months become a trending topic on social media.
The initiative got a high-profile plug during the Oscar broadcast on Sunday when best actress winner Frances McDormand urged viewers and the assembled Hollywood luminaries to embrace a legal effort to push for greater on-screen diversity. That’s good news for Kotagal and the other lawyers and advocates who have been taking meetings at talent agencies and studios to help popularize the concept. The only downside was McDormand’s speech came toward the end of a nearly four-hour broadcast.
“I had literally just turned off the television,” said Kotagal. “I have little kids, and I have to be up early. I was being responsible so I could get to bed at the time I’m supposed to go to sleep. When I picked up my phone the next morning, I had all these messages.”
Kotagal, an attorney at Cohen Milstein, is hopeful that McDormand’s plug will help popularize the initiative. The inclusion rider is language that actors, producers, and directors can bake into their contracts, asking that their projects make a concerted effort to cast minorities, LGBTQ actors, and women in supporting and background roles. They can also ask for more diversity in below-the-line positions.
“The thinking behind this tool is to ask those who have power in the industry, which is primarily straight white men, to use their bargaining power in negotiations with studios,” said Kotagal. “We want them to use their influence.”
Inclusion riders are the brainchild of Stacy L. Smith, a professor at USC Annenberg School of Communication and Journalism whose research centers on underrepresentation of women and minorities in media. Smith first introduced the concept of an inclusion rider in a 2014 op-ed after despairing that all the talk about the need for diversity had led to very little substantive change.
“There’s no reason why films can’t look like the world we live in,” says Smith.
The numbers tell a different story. USC’s research has found that women, Hispanics, Asians, African-Americans, and other minority groups remain vastly underrepresented when it comes to both speaking roles and lead or co-leading parts in films. Instead of improving, the level of representation has essentially stalled out, Smith said.
Other studies are similarly dispiriting. In 2017, just 24% of protagonists in the 100 highest-grossing films were women, according to a recent report by the Center for the Study of Women in Television and Film at San Diego State University. That represented a drop of five percentage points from the previous year. Instead of going up, the numbers were getting worse. And all this at a time when female-driven movies such as “Wonder Woman” and “Girls Trip” were dominating the box office.
“I would love to leave this industry to self-regulate, but it’s clear it can’t,” said Smith. “People nod their heads and agree we need more diversity, but that leads to no meaningful change.”
Smith and Kotagal said they have managed to get interest from a number of important constituencies, including WME and Pearl Street Films. They’ve also had prominent stars such as McDormand and Brie Larson embrace the cause, and the women claim that inclusion riders are already in use.
As for whether studios would go for such clauses, a lot depends on the bargaining power of the actors involved.
“I think people would be willing to agree to it if you get enough talent behind it,” said Jeremiah Reynolds, an attorney at Eisner Jaffe. “If Tom Cruise says he’s not going to do a movie unless he gets an inclusion rider, somebody’s going to agree to that.”
Of course, a concept like this is likely to face blowback. Affirmative action programs, for instance, have been dogged by legal challenges, with opponents arguing they enforce quota systems that can lead to reverse discrimination.
“I think it’s an interesting idea, and it certainly serves a noble purpose, but my initial reaction is it’s a clumsy and potentially unlawful way of achieving diversity,” said Adam Levin, an employment attorney at Mitchell Silberberg & Knupp.
Any producer who agrees to an inclusion rider could face a lawsuit from a white actor who wasn’t hired, he said. Such a producer could argue that the First Amendment provides the freedom to cast whomever they want. Levin successfully defended ABC on those grounds when the network was sued for alleged racial discrimination for casting only white bachelors on “The Bachelor.” But it might be more difficult to defend if the producer’s diversity goals were codified in a contract, he said.
Anyone who agrees to such a clause, Levin said, is “signing on for some future heartache and some very interesting constitutional arguments that need to be made.”
Kotagal said she was aware of these types of potential protests and structured the language to be clear that they were not imposing quotas. The contract is worded so that productions do not have to hire a certain percentage of women and minorities, but they have to make a good faith effort to audition or interview potential candidates from those constituencies. If they fail to do so, the productions will be fined and the money can go into a fund to support underrepresented filmmakers.
“This is all about building a diverse and broad pool from which to make hiring decisions and to encourage people to keep diversity in mind when they fill jobs,” said Kotagal. “We need to try something different so we can move forward, because whatever we were doing before wasn’t working.”
Gene Maddaus contributed to this report.
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