Frances McDormand's Inclusion Rider Goal May Be Elusive

Best Actress Oscar - Getty - H 2018
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The Oscars callout is leading to a real organizing effort, but studios may invite discrimination lawsuits if they prioritize gender and race in hiring decisions.

It might just be the most famous contract clause no one had ever heard of. When Frances McDormand uttered the words “inclusion rider” on the Oscar stage on March ?4, the Three Billboards Outside Ebbing, Missouri star left viewers (and many in the industry) baffled.

The concept, however, is simple: stars — or anyone with leverage, such as showrunners and top movie directors — can negotiate a contract addendum, or rider, that commits a studio or producer to recruit and hire diverse actors and crew on a?project. It’s the brainchild of USC professor Stacy Smith and Kalpana Kotagal, a civil rights employment attorney at Cohen Milstein.

“Movies fail to feature females, individuals from underrepresented racial/ethnic groups, the LGBTQ community, and people with disabilities,” says a summary they provided. “The Inclusion Rider is a solution.”

Smith first introduced the idea in a 2014 Hollywood Reporter guest column, but it lay mostly dormant until this year's Oscar night. The media scholar says she’s not aware of any actors having used the rider, and entertainment attorneys say they’re unfamiliar with it. “Seen none. Have none,” says a top talent lawyer. 

Yet Smith and Kotagal aren’t sharing the clauses they’ve crafted. “The language is for attorneys, actors and content creators — we don't give it out,” says a colleague of Smith’s. “We want to avoid public negotiation,” says Kotagal, but the Washington-based attorney may also see secrecy as a ticket to Hollywood legal work. “Civil rights lawyers have a right to make money,” she notes.

The rider, as Smith and Kotagal outlined in their summary, focuses on improving diversity in select below-the-line jobs (cinematographer, production designer, sound, 1st and 2nd AD, editor, visual effects and composer) and supporting roles that do not affect “story sovereignty” or interfere with financing or insurance. It also “creates financial consequences for studios that don’t engage in good faith efforts.”

Will studios agree to binding commitments and monetary penalties? Some have their doubts. Loeb & Loeb management-side labor lawyer Ivy Kagan Bierman, who supports the overall concept, predicts companies might try to soften the language. 

Others wonder whether such riders are workable at all, especially in television (would numerical targets be per episode, per ?season?), and how penalties would be assessed and ?to whom they would be paid. Even the rider’s authors acknowledge the risk of reverse discrimination suits, which could ensnare not just a studio but even the A-list star who demanded the rider. Assessing these issues is tough without seeing specific language.

Unions also could have a role. SAG-AFTRA issued a noncommittal but supportive statement, and the guilds could seek to incorporate aspects of ?the rider into their collective bargaining agreements in the 2019–20 negotiations. The studios shot down a 2016 DGA attempt to strengthen currently toothless language, but that was pre–#MeToo era.

Meanwhile, a coalition led by Smith and Kotagal is trying to get state governments to provide inclusion rider tax incentives. Ultimately, audiences might make a difference too.

Endeavor Content co-president Graham Taylor, who spoke passionately in an interview about using the rider to advance equity and diversity, says his company suggests the rider on all projects. “Just as consumers are increasingly interested in where their food is from, they are becoming increasingly interested in how their content is created and the values behind it,” he says. 

A version of this story first appeared in the March 7 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.