Hollywood Bracing for ACLU Gender Probe, Possible Subpoenas

Will you be subpoenaed? Several options are on the table as Hollywood's hiring practices go under the microscope.
Richard Cartwright

This story first appeared in the June 5 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.

On May 21, the ACLU launched a petition urg­ing Hollywood to demand a government investigation into why female directors are underrepresented in film and television. "It might be time for oversight," says ACLU staff attorney Ariela Migdal. But what would this "oversight" look like, and how would Hollywood respond?

The Equal Employment Opportunity Commission has the power to bring what's known as a "commissioner's charge" and potentially serve subpoenas to entertainment companies to uncover more about the industry's hiring practices. So-called "word-of-mouth" hiring, the legal term for hiring made without publicly advertising opportunities (studios making selections from talent agency director lists could qualify), might lead to liability if men are given preference due to the belief that they have higher earning potential, says USC law professor Camille Gear Rich. If the EEOC determines there's been a violation of equal-rights laws, government attorneys would look to find a remedy through mediation, and if that doesn't work, a lawsuit.

In recent years, the ACLU has been active in key cases on behalf of women in the workplace. And in the 1960s, the EEOC actually held hearings on gender and racial discrimination in entertainment. A settlement between the Department of Justice, studios and unions provided for monitoring that lasted into the mid-1970s. The ACLU wasn't involved in that effort, but it has cited the precedent in letters to the EEOC and two other government agencies.

Those agencies could choose to do nothing, of course. But WGA general counsel Tony Segall speculates that the ACLU had conversations with officials about taking on the case before sending three federal and state agencies a letter on May 12. "Generally, we don't want the government regulating content creators, but it's pretty appalling there aren't more women directors," he says.

Attorney Bonnie Eskenazi believes legal action could begin the path toward a consent decree in which studios would agree to take specific steps to rectify bias. Eskenazi says she'd like to see a "film czar" who would oversee a fund financed by settlement money from any suits benefiting female directors.

Whatever the solution, it "isn't going to emerge organically from the industry," says Migdal, adding that one of the ideas floated has been to ask studios to adopt something analogous to the NFL's "Rooney Rule," wherein minority candidates must be interviewed before a hiring decision is made.

Could the government be charged with monitoring? Hollywood has been leery of interference since the days of the blacklist, when congressional hearings set off a scare about communism. More recently, lawsuits alleging discrimination behind and in front of the camera have been met with vigorous First Amendment challenges. For exam­ple, just two days after the ACLU sent its letters, Sony and CBS, in a dispute with a soap opera star, cited a judge presiding over alleged racial discrimination in the casting of ABC's The Bachelor. The judge wrote that it was unwise to "embroil courts in questioning the creative process behind any television program." Indeed, the uniqueness of Hollywood could be a hurdle in any legal case.

University of Texas law professor Joseph Fishkin, who wrote a book on bottlenecks to diversity, says a lawsuit "would be challenging for plaintiffs and for the government [especially because] courts are more reluctant to second-guess the hiring of high-level, highly skilled employees."

Jonathan Handel contributed to this report.