Oscars Delve into Legal Territory with Two Words: Inclusion Rider

by FordHarrison
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At the end of her Oscars acceptance speech for Best Actress this year, Frances McDormand, after having spoken about equality, concluded with the following statement: “I have two words to leave with you tonight, ladies and gentlemen: inclusion rider.” And with that, McDormand was done and making her way off stage, leaving the audience and viewers (non-lawyers, and frankly lawyers alike) looking at each other going: What’s an inclusion rider? Now generally speaking, one can certainly make an educated guess. Inclusion clearly refers to making an effort to be inclusive and diverse. And a rider is known as a condition or provision that is typically added to a contractual agreement. But what exactly does an inclusion rider do?

Backstage after her speech, McDormand contended that an inclusion rider could permit artists to “ask for and/or demand at least 50% diversity” in casting and the crew. McDormand, to her credit, admitted that she had just found out about this provision “last week,” and so can be forgiven for not understanding the potential nuances of this legal provision. In fact, there is no question that such an inclusion rider is potentially more complex than the summary provided by McDormand.

As reported by various outlets, the concept of an inclusion rider was developed by Stacy Smith, founder and director of USC’s Annenberg Inclusion Initiative, and then drafted by an attorney. According to Smith, the purpose of the inclusion rider is to counter biases in the casting, auditioning, interviewing, and hiring process. Therefore, while the language of inclusion riders will vary from project to project, they often provide that supporting and minor on-screen roles should be filled in a manner that reflects the diversity in the real world. Obviously, this will be unworkable in certain movies, particularly non-contemporary movies, where actors’ racial and gender makeup will be related to the particular time period or setting at issue. Inclusion riders, however, also can seek to increase the diversity of the crew working on that project.

The legality of such inclusion riders really depends on how the provision is drafted. Demanding that certain race or gender quotas be met could run afoul of Title VII of the Civil Rights Act of 1964 and analogous state laws, which ban employment discrimination against any race, gender, religion, national origin, and various other protected classes. For example, while exceedingly difficult to prove, Title VII permits claims of “reverse discrimination,” whereby members of a non-minority class (e.g. Caucasian, or male) can bring claims stating they were discriminated against due to their non-minority status.

Therefore, an inclusion rider that requires certain specific quotas be met is likely problematic in the private sector.  However, inclusion riders that request that good faith efforts be made to hire diverse individuals, or that diverse candidates be interviewed and/or considered for certain positions, or that creatively use other methods to ensure that hiring reflects the diversity in the real world, would not be an issue. Take for example the Rooney Rule in the NFL, which requires that teams at least interview minority candidates for head coaching and senior football operations positions.

Inclusion riders make more sense in an industry like Hollywood, where individuals are hired on a project-by-project basis, and are likely not to become relevant to private employers with a continuous workforce. As it is, employers are already required by federal and state law not to discriminate in their hiring practices against protected classes. That being said, the term inclusion rider has officially entered the zeitgeist, and follows a continuous pattern of recent diversity and #MeToo initiatives that I, and my fellow colleagues, have written about here at EntertainHR, which have only escalated since the spate of public sexual harassment allegations began bombarding the news cycle last year.

While it is unclear what effect, if any, inclusion riders will have in Hollywood and whether they will be adopted in other industries, what is clear is that the movement shining a light on issues relating to diversity is only building. As I have stated many times before, such a movement creates awareness. And awareness can lead to action. Employers should take initiatives that are necessary to ensure they are prepared for such action. If they haven’t done that yet, there is no better time than now to start.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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