Last Sunday evening, I turned off the Academy Awards just a few minutes before Frances McDormand won her much-deserved Oscar. The following morning, I awoke to the startling – but wonderful – news that, while I slept, a project I had been quietly working on for months had been catapulted into public awareness by the year’s best actress during her acceptance speech.
McDormand had concluded her remarks with two cryptic words – “inclusion rider” – which prompted a flurry of Web searches around the globe to figure out what she was talking about. As an author of the inclusion rider, I was personally thrilled by the shout-out; as a woman of color living in a society that still struggles to fully value and promote diversity, I think McDormand’s elevation of the inclusion rider was critically important for all of us.
For decades, Hollywood has been run primarily by straight, white men. One tragic consequence of this reality has become all too clear through the #MeToo movement. A less visible result is that women, people of color, members of the LGBTQ community and other underrepresented groups have disproportionately faced more difficult hurdles to break into the industry – whether in front of or behind the camera.
In basic terms, the inclusion rider is an addendum to a leading actor’s contract that stipulates a process for ensuring minority representation in the audition and interview pools for a film or television project, and establishes objectives and tracking requirements for casting and hiring.
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The provision also imposes financial penalties on projects that don’t engage in good-faith efforts to find qualified individuals from diverse backgrounds and opportunities to publicize and celebrate successes. It has generally been used as it was written, but it can be adapted to fit a particular contract.
It is important to note that, while the inclusion rider mandates consideration and encourages hiring, it is in no way a quota. In the highly competitive industry of Hollywood, building a team that is both qualified and diverse is not a heavy lift, and concerns about “reverse discrimination” are misplaced.
The need for a new model for the industry has long been clear, but the path toward achieving it has been less obvious. The inclusion rider grew from multiple people approaching the problem from different perspectives. My background as a civil rights and employment lawyer gave me deep experience crafting workplace best practices. Stacy Smith, the founder and director of the University of Southern California’s Annenberg Inclusion Initiative, has researched and fought for equality in film and television for years, as has Fanshen Cox DiGiovanni, the head of strategic outreach at Pearl Street Films. My colleague Anita Hill saw the potential for collaboration and brought us together. Together, we transformed Stacy’s general concept into a detailed framework grounded in specific legal language.
The true power of the inclusion rider is that it simply embodies best employment practice. A study published in the journal Financial Management this year found that companies that promote diverse workforces develop more innovative product pipelines, which lead to stronger financial performance. I strongly believe that once the entertainment industry begins to adopt the practices stipulated in the text of the inclusion rider, and experiences the associated benefits, it will embrace them as standard. If inclusion riders become commonplace over the next few years, they could be rendered obsolete within 10 or 20 years.
I am grateful to McDormand for opening a national conversation about the inclusion rider and what it could achieve. Now is the time for A-listers to step up, to use their clout to open the floodgates to talent in all its forms and origins, and to help build an entertainment industry that truly reflects – and celebrates – our multifaceted world.
Kotagal is a partner in the Civil Rights & Employment practice group at Cohen Milstein Sellers & Toll.