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When Frances McDormand uttered the words “inclusion rider” in her acceptance speech at this year’s Oscars, Google lit up with folks searching the term. Even the entertainment industry’s savviest lawyers had to ask around for the exact meaning and derivation, although most could guess that it had something to do with ensuring diversity through contracts. Two weeks later, an increasing number of production companies are saying they will adopt inclusion riders, while WME co-CEO Ari Emanuel announced inclusion riders have become “imperative.”
And why not? McDormand might as well have commanded Hollywood to wear pink ribbons as a way to encourage greater opportunities and equity for women and people of color in the industry. Inclusion riders have suddenly become this season’s hottest accessory — a way to signal commitment to a cause and earn fawning attention for doing so without immediately committing to much of anything, really.
Consider the stories in the press about those who have said they will be using inclusion riders in the future. Although many of the articles give a quick explanation and nod to a 2014 Hollywood Reporter guest column by Stacy Smith outlining what the director of USC’s Annenberg Inclusion Initiative then called an “equity rider,” the stories are bereft of any information about what these production companies are specifically pledging to incorporate into contracts.
And good luck hunting for inclusion-rider language. Evidently it’s top secret.
A colleague of Smith declined an invitation from THR to share the clauses they’ve drafted. “The language is for attorneys, actors and content creators — we don’t give it out,” said the colleague.
Or take recent word that Matt Damon and Ben Affleck would be adopting inclusion riders for projects made through their Pearl Street Films. After Fanshen Cox DiGiovanni, head of strategic outreach at the production company, announced the news, she was prodded by this reporter for specifics. “We have a backlog of requests and are currently prioritizing those who want to adopt the language for specific projects,” she wrote back. “If you have a project actively in development, we are happy to share the language.”
Does she really know? Who does?
For all the fuss that inclusion riders have generated, little attention has focused on how inclusion riders will operate in practice. Will there be hard minimums on the number of women and people of color to be hired? What about others who may be disadvantaged in the industry, such as older professionals and those with physical disabilities? Doesn’t employment law discourage looking at protected classes of people when hiring? What will be the penalties for failure to comply with diversity obligations? Does anyone beyond the contracting party have standing to sue? Will anyone actually want to rock the boat by doing so? And so forth…
Perhaps smart lawyers can figure this stuff out, which raises the first issue. Has McDormand realized that she’s put inequality in Hollywood in the hands of transactional attorneys? Surely, these folks are problem-solvers. They are also risk-averse and deal with competing interests. Plus, there are antidiscrimination laws already on the books. If there’s a legal solution to inequality, what will contracts solve that statutes won’t? Maybe we should address that.
That gets to a much deeper reason why inclusion riders could represent a misstep for the cause of equality.
As the past six months have shown, real change happens upon sunshine. The Harvey Weinstein story sparked the #MeToo movement and led to the dismissals of prominent men accused of sexual misconduct. The stories about what the stars of All the Money in the World and The Crown were earning provoked enough outrage to force production executives to at least address gender pay disparity. In short, there’s been accountability thanks to the public discussion of these situations.
In contrast, many contracts in Hollywood include confidentiality and arbitration clauses. Incorporating diversity riders without substantial hard change elsewhere potentially means hushing up problems on the diversity front or at least driving important issues into guarded deal rooms and private adjudication forums where repeat players may be institutionally favored. It allows insiders in the industry to get a momentary pass on addressing something of urgency by permitting them to kick the can down the road to sometime in the future when perhaps some enterprising researcher decides to study whether the adoption of inclusion riders makes any difference whatsoever. In the meantime, it’s tantamount to a wink and a nod from an industry saying, “Trust us, our lawyers will take care of it.”
Instead of adding contract language, Hollywood perhaps should be considering subtraction — lifting the mechanisms of secrecy that have shielded predators and provided cover to those who may wear pink ribbons but who discriminate. As things are currently heading, these vague inclusion riders are in danger of becoming placebos for an industry feeling guilty as well as a faddish tool for Hollywood’s army of elite PR consultants. It costs absolutely nothing to embrace an inclusion rider. But without an accompanying guarantee of transparency, it’s also a quite meaningless commitment. If the road to revolution gets sidetracked by empty value signaling, McDormand’s speech may not be looked back upon so fondly.
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