Many people heard about “inclusion riders” for the first time in Frances McDormand’s speech when she won Best Actress in a Leading Role on Hollywood’s biggest night. What are these riders, and will attorneys start adding them to contracts for people outside the entertainment industry? For answers to these and other questions, Bloomberg Law reached out to Kalpana Kotagal, partner with Cohen Milstein in Washington, who is one of the progenitors of inclusion riders.
Bloomberg Law: Can you describe the purpose and genesis of inclusion riders like the one mentioned by Frances McDormand at the Academy Awards?
Kalpana Kotagal: The inclusion rider is an addendum to a leading actor’s contract that requires a process for ensuring minority representation in the audition and interview pools for a film or television project. It establishes objectives and tracking requirements for casting and hiring, creating a flexible mechanism for Hollywood’s most influential players to wield their star power and create opportunities for women, people of color, members of the LGBTQ community, and other underrepresented groups to enter the industry. The idea of the inclusion rider grew out of multiple people approaching the problem from different perspectives. Anita Hill, who is a colleague of mine and of counsel at Cohen Milstein, first put me in touch with Stacy Smith, the Founder and Director of the Annenberg Inclusion Initiative at the University of Southern California. Stacy has been focused on issues of diversity, inclusion, and inequity in film and TV, as has Fanshen Cox DiGiovanni, the head of strategic outreach at Pearl Street Films. The three of us combined our skills to transform Stacy’s general concept for an inclusion rider into a detailed framework grounded in specific legal language with the goal that A-list celebrities, who have the power to change the entertainment industry’s status quo, can take it into studio negotiations to drive a fairer and more inclusive hiring process.
Bloomberg Law: Is there anything similar outside the contracts of movie stars, and have you been approached by others who want such riders in their employment agreements?
Kotagal: Unfortunately, there is currently nothing similar to the inclusion rider. Transforming the hiring process in Hollywood, while important, should be a launching pad for other industries to finally have discussions about inclusion provisions within their own employment procedures as the principles embodied in the rider are simply employment best practices and are applicable across industries. Furthermore, we need to dig deeper and think about workplace conditions that underrepresented groups are subjected to around the country. Only then can we effectively implement solutions that encourage and ensure diversity and inclusion.
Bloomberg Law: Do you foresee inclusion language making its way into collective bargaining agreements negotiated in the entertainment industry or elsewhere?
Kotagal: Inclusion language is simply just an embodiment of a best employment practice. A study published this year in Financial Management found that companies that promote diverse workforces—specifically including women, people of color, and members of the LGBTQ community—develop more innovative product pipelines, leading to stronger financial performance. Our hope is that once an industry as influential as the entertainment industry begins to adopt the inclusion rider and sees the benefits that it has been missing, other industries will follow suit. In the next decade or two after that, these riders could be rendered totally obsolete as diversity and inclusion would no longer be issues in the workplace.
Bloomberg Law: How would you answer critics who liken the inclusion language to an affirmative action program?
Kotagal: The inclusion rider mandates consideration and encourages hiring—it is not a quota. In a highly-competitive industry like Hollywood, building a team that is both qualified and diverse is not a heavy lift. Concerns about “reverse discrimination” are misplaced, as that term implies that there is an insufficient number of qualified candidates who are people of color, women, members of the LGBTQ community, and more. We know that isn’t true.
Bloomberg Law: Can you draw a comparison between inclusion riders and the Rooney Rule that requires NFL teams to consider minority candidates in hiring?
Kotagal: USC Annenberg Inclusion Initiative Director Stacy Smith first suggested a “Rooney Rule” for Hollywood in 2014 in a guest column for the Hollywood Reporter. At the time, the idea was that executive and studio heads would have to at least interview women for director jobs to combat gender bias. Initially, this rule helped us develop the inclusion rider, but it has expanded and transformed to go further than the Rooney Rule in certain respects.
Bloomberg Law: Is there anything else about inclusion riders people should know, and can you think of further details that labor and employment attorneys would be particularly interested to learn?
Kotagal: The important thing to understand about the inclusion rider is that it’s about giving those who have the bargaining power—historically straight white men—the tool to drive change in the industry. It doesn’t call on those who have struggled to find a place to also be the solution, but instead calls on those with power to use that power to fix this issue.