With the rise of the #MeToo movement and the Time’s Up initiative, Hollywood is beginning to truly reflect on the problems within the entertainment community. Diversity, or the lack thereof, has been a long running issue in Hollywood and is finding itself in the spotlight once more. In her acceptance speech for the Best Actress Award at the Oscars, Frances McDormand puzzled the audience when she left them with the words “inclusion rider”, as most people, including those with lifelong careers in the entertainment industry, had never heard the term before. So, what are inclusion riders? Why has no one heard of them? And will they be able to make the impact on diversity in Hollywood that is so desperately needed?
The concept of an inclusion rider (also known as an equity rider) was created by Stacey Smith, the Director of USC Annenberg’s Media, Diversity and Social Change Initiative in 2014. The basic premise of inclusion riders is that actors and actresses (and potentially other big players in the industry such as directors and producers) can insist that a clause be added to their contract that demands that the composite demographic of the cast and production staff meet a certain level of diversity. Many believe the diversity of the staff composition should reflect the diversity levels present in the country as a whole. The idea is that inclusion riders will force Hollywood and the entertainment industry to bring in more diversity both in front of the camera and behind the camera, and allow minorities to have greater exposure and opportunities in the field.
There have been mixed reactions to the idea of inclusion riders, with some stars and agents immediately stating that they intend to adopt them on all future production and others wondering about the true efficacy of inclusion riders on the diversity problem. The biggest question around inclusion riders’ potential for success is how they would operate in practice. Would this require productions to meet diversity quotas? This could face constitutional challenges similar to those seen around affirmative action programs at universities. Many have pointed out that certain productions may require the cast to be far from diverse, such as a historical period piece, perhaps focusing on the British Monarchy. It’s unclear whether an inclusion rider would allow the production to meet the requirement using behind the scenes staff alone. Others worry that this forced hiring of minorities may not change attitudes within the industry and in fact could create greater animosity towards women, LGBT, people of color and the disabled. Inclusion riders may also negatively impact other disadvantaged groups in the industry that may not be covered by the language of the clause, such as older workers and people with physical disabilities.
Due to the sudden influx of attention around inclusion riders, many wonder how to go about implementing them. Smith’s office has refused to share the language they have drafted so far, and those who have eagerly jumped on the inclusion rider train have not yet shared the specifics of their plans. The Hollywood Reporter is quick to point out that by dealing with the diversity problem through contract language, Hollywood is effectively relying on transactional attorneys to solve large scale social issues. The legal blog also points to a concern that contracting away the diversity issue doesn’t shed enough light on the underlying problems, and gives executives a “momentary pass” by focusing on one-off negotiations, rather than confronting the issue head on. The recent explosion of sexual harassment allegations in the entertainment industry, and the media firestorm surrounding them, has led to substantial and dramatic changes. Many believe the only way to effect genuine change within Hollywood is by bringing the problem into the public spotlight and letting the court of public opinion force the changes into being.
Rebecca Chapman, a criminal defense and civil rights attorney, wrote in an op-ed for the New York Times that a fundamental assumption underlying contract negotiation and impliedly inclusion riders is that both parties come to the table as equals. However, this is rarely true, particularly within the entertainment industry. Chapman believes the power of negotiation still lies predominantly with white males, who may use the inclusion rider to bring in diversity in tertiary roles, but would never relinquish their own headlining spot for someone more diverse. Only high-profile celebrities will be able to negotiate these riders into their contracts—however it seems unlikely that these celebrities will be willing or able to determine whether the production has reached the level of diversity it has promised. It is likely to fall to the marginalized minorities, the very ones the rider was enacted to protect, to ensure compliance with the terms of the inclusion rider.
Finally, there are several legal questions surrounding inclusion riders. Who has standing to sue? Who is responsible for measuring and maintaining compliance? What remedies are available if a production falls out of compliance? If damages are assessed, to whom will they be paid? These questions likely will remain unanswered until a controversy involving an inclusion rider ends up in court. It’s not clear that answers can be readily determined through contract language, and the questions shed light on the vulnerabilities of inclusion riders within the legal system.
There is no doubt that Hollywood needs to do more to encourage diversity in all aspects of the entertainment industry. Perhaps inclusion riders can have a meaningful effect on diversity within film and television production. Regardless of their success, inclusion riders have started the conversation and brought the issue back into the spotlight, and can hopefully lead to meaningful change.
Nicole Garbe is a J.D. Candidate, 2019, at NYU School of Law.