On March 4, 2018, actress Frances McDorman ended her Best Actress speech at the Oscars with the words “inclusion rider.” This term was coined by Dr. Stacy L. Smith, an associate professor at the USC Annenberg School for Communication and Journalism, in a Hollywood Reporter op-ed in 2014. An inclusion rider is a clause in an actor’s contract that “would state that tertiary speaking characters should match the gender distribution of the setting for the film, as long as it’s sensible for the plot.” This clause not only applies to actors in front of the camera but extends to crew members who work behind the scenes.

Dr. Smith created this term after publishing a study with her colleagues in July 2017. The study examined inequality in 900 popular films and found that only 31.4 percent of speaking characters were female, even though women represent more than half of the population. Also, women represented only 4.1 percent of the directors, and just 1.4 percent of the composers. Further, there were only 29.2 percent of under-represented characters in these films, while the population in the U.S. is made up of 40 percent non-white racial/ ethnic groups.

This inclusion rider concept has become more popularized after the Oscars, with actors such as Brie Larson, Ben Affleck, and Matt Damon including this clause in their contracts. For instance, in actor Michael B. Jordan’s contract with Coach to represent their menswear line, he incorporated an inclusion rider clause. In addition, directors Paul Feig, Ava DuVernay, and Anthony Hemingway have also made this a part of their business model.

But is this “inclusion rider” clause legal?

The USC Annenberg Inclusion Initiative released an inclusion rider template on their website. The template has several stipulations, including that the Director and Casting Director will audition at least one female and one person from any under-represented group for all supporting roles. The studio will also interview at least one female and one person from any under-represented group for off-screen positions as well. The objectives section of the template states that “[w]herever possible, the Director and Casting Director will select qualified members of under-represented groups for supporting roles in a manner that matches the expected demographics of the film’s setting.” For example, if a film takes place in New York City in the year 2018, the composition of supporting actors needs to match the current racial and gender makeup of the city. There is also a reporting requirement, that requires film producers to send a comprehensive report to Dr. Stacy L. Smith at the conclusion of production.

If a studio fails to comply, they “shall make a contribution…[which] will be used to establish and endow a scholarship fund for filmmakers from under-represented backgrounds.”

While individuals are free to contract with each other, the question remains on whether this contract violates anti-discrimination laws. In United Steelworkers of America, AFL-CIO-CLC v. Weber 443 U.S. 193, 197, the legality of an affirmative action plan, which reserved 50% of openings for African-American employees in an in-plant craft-training program until the program reflected the percentage of African-Americans in the local labor force, was challenged. The Court held that the plan fell within “the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories.” Id. at 209. However, in Ricci v. DeStefano 557 U.S. 557, 585 (2009), the Court held that the city of New Haven was not allowed to disregard test results from an objective examination where white firefighters outperformed other minorities for a promotion. The Court does not “question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established…they may not then invalidate the results…doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.” Id.

Unlike United Steelworks and Ricci, the template does not implement a quota system or an objective test. Rather, the language used is permissive and only requires that directors and casting directors interview at least one minority and hire them “wherever possible.” If a lawsuit were to ensue it is unknown how the Court would rule on this type of program. For example, the Court upheld the limited use of affirmative action programs in university admissions. Similarly, race is only one factor for considering who to hire as actors and crew members.

Further, it is unknown whether the actors and directors mentioned above are actually using the template when negotiating their contracts. They may be using their own contracts that do not rely on ensuring that hiring matches the film’s setting, but simply encourages the director and casting director to hire more actors and crew members of color.

Dr. Stacy L. Smith and USC’s Annenberg Inclusion Initiative is attempting to use contract law to move Hollywood and the entertainment business into reality. Not only is this method timely, but it is also an effective way to measure diversity and ensure that all professionals regardless of race and sex are given an opportunity to be part of an industry that has traditionally been closed to women and individuals of color.

Jazmine Gordon

 

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