5:00am PT by Jonathan Handel
Hollywood Gender Imbalance, Even if Suspect, May Be Difficult to Challenge (Analysis)
In the wake of an ACLU call for a government investigation of gender disparities among movie and TV directors, legal experts surveyed by The Hollywood Reporter cautioned that widely used recruiting practices in Hollywood could easily have discriminatory effects, but most felt it would be hard to hold studios, networks and talent agencies liable.
Directors are seldom if ever hired via websites, search firms and other methods common for jobs in corporate America, as the ACLU noted in its letters last week to three state and federal anti-discrimination agencies. Instead, word-of-mouth recruiting and talent-agency director lists are commonly used.
But while those means of doing business may be common, they readily lead to a workforce that mirrors the decision makers, who are usually white men.
"It’s a pretty common problem, especially among higher status jobs," said USC law professor Camille Gear Rich.
And indeed, the result of Hollywood recruiting practices has been anything but diverse: As the ACLU pointed out, studies of hundreds of top film and TV episodes that have found that women directed about 4 percent of top grossing films in recent years and 14 percent of recent TV episodes.
As the Equal Employment Opportunity Commission (EEOC) says, "word-of-mouth recruiting … in a non-diverse workforce is a barrier to equal employment opportunity if it does not create applicant pools that reflect the diversity in the qualified labor market."
But are those practices — when used alone and not supplemented with channels that cast a wider and more diverse net — legally risky? Here, experts split somewhat.
Word of mouth is "not in and of itself unlawful," said employers’ counsel Douglas Farmer of Ogletree Deakins, who wrote a handbook on California employment law, "but best practice is to post and advertise. You don’t want to use exclusively one method to hire."
Gear Rich added that talent agencies’ alleged preference for male clients (because of their generally higher earning potential), if true, "is a moment of discrimination" and could subject them to liability.
But most discrimination experts concluded, generally with some sadness, that the defendants in such suits would likely prevail.
University of Texas law professor Joseph Fishkin, who wrote a book on bottlenecks to diversity, said any case in this area "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."
Zev Eigen, a Yale law professor and former Fox labor lawyer, pointed out another difficulty. "'Failure to hire' cases are much harder [to win] than discipline or firing," he said. "There’s a problem of proof — you don’t know how many women would have applied" had a directing job been posted.
And USC law professor Stephen Rich countered that under the law, "employers don’t have an affirmative duty to use diverse pool recruiting methods."
(Full disclosure: This reporter is an adjunct professor at USC Law School.)
Rich pointed to the 1993 case of a Korean janitorial company in Chicago, Consolidated Service Systems, which primarily used word-of-mouth recruiting, such as employee suggestions or chance meetings at social gatherings, which produced an almost all-Korean workforce in a county whose workforce was less than 1 percent Korean. "It doesn't take a statistician to tell you that the difference [in percentages] … is not due to chance," said the opinion by noted jurist Richard Posner.
"But is it due to discrimination?" the judge asked.
No, Posner answered, adopting the sort of economic efficiency analysis he is noted for. "If an employer can obtain all the competent workers he wants, at wages no higher than the minimum that he expects to have to pay, without beating the bushes for workers — without in fact spending a cent on recruitment — he can reduce his costs of doing business." The fact that under the circumstances "this stance is likely to result in the perpetuation of an ethnically imbalanced work force" — as it indeed had — did not, to the court, prove intentional discrimination.
But intentional discrimination, or "disparate treatment," is not the only form of discrimination recognized in law. Another is "disparate impact," in which a seemingly neutral policy has a differential impact on one group and is without business justification. Does word-of-mouth recruiting violate anti-discrimination laws under a disparate impact analysis?
That was the issue in another Windy City case, involving a company called Chicago Miniature Lamp Works, which manufactured pretty much what its name suggests. In a somewhat paradoxical 1991 ruling, the same court of appeals — the Seventh Circuit — found that "passively wait[ing]" for applicants to learn of job opportunities from current employees was not an unlawful employment practice under a disparate-impact analysis because it wasn’t an employment practice at all.
"That’s a remarkably limited view of what constitutes an employment practice," said Fishkin, who said he doubted that the West Coast’s Ninth Circuit would follow its sister court.
"It’s kind of the Seventh Circuit against the rest of the world," he added, at least as far as the issue of what constitutes an employment practice is concerned.
And indeed, on the broader issue, other circuits have been more open to finding that word-of-mouth recruiting can be unlawful. In a case against a Virginia school board, the Fourth Circuit found unlawful disparate impact where "black applicants … were not being given an opportunity to compete for teaching jobs, largely because the Board's practices of nepotism and word-of-mouth hiring kept them unaware of job openings."
In another school case, the Second Circuit found that word-of-mouth recruiting may be prohibited by the federal civil rights law, Title VII, under disparate impact, while an older, 1973 case in the then-Fifth Circuit against Georgia Power condemned word-of-mouth recruiting in that instance as creating a "built-in headwind" against blacks.
Federal circuit court opinions are binding precedent only within their own region. Outside the circuit, they become just another factor that a sister court will likely consider — and then may reject, if it so chooses. Outright differences of opinion between circuits — so-called "circuit splits" — are sometimes resolved by the Supreme Court and other times simply lie unresolved, resulting in geographical differences in what should theoretically be a uniform federal law.
And that’s not even to account for differences in state law. The ACLU directed its letters to two federal and one California state agency. There appears to be a paucity of law on point in the Ninth Circuit and the California state courts.
Both of those are politically liberal jurisdictions, but even so, said Berkeley law school’s Russell Robinson, who has written on discrimination in the entertainment industry, disparate impact claims "are very hard cases to win."
That’s even more true because "it’s a creative business, the standards are very subjective. … A court would be hesitant to wade into these creative waters. And looming in the background is the First Amendment."
Indeed, for just those reasons, a Tennessee federal court in 2012 turned away a discrimination claim by two African-American men who had unsuccessfully sought to compete on ABC’s The Bachelor, while the California Supreme Court in the widely noted Friends case held that sexually coarse language in the writers’ room reflected the show’s creative nature and was hence not actionable as gender discrimination. A concurring opinion in the latter case cited the First Amendment.
Fishkin said that attacks on industry-wide practices are harder than on a single, outlier company, since an outlier exists against a backdrop that shows it's possible to do better. In industry-wide cases, it becomes more challenging to prove that there is an adequate supply of qualified and interested candidates to begin with.
Balancing that, he added, is the fact that the EEOC has nonetheless become more interested in systemic cases.
It might be that the issues of feature and TV directors will have different resolutions. Fishkin points out that it may be hard to hold decision makers responsible for motion-picture hiring decisions because there’s only one director per movie, whereas a long-running TV series hires many directors over time. That means that it may be easier to point to a pattern of exclusion in the case of a TV series that hires few or no women directors, while a feature film is usually de facto just one product.
Also, the job of an episodic TV director is generally a more constrained and perhaps technical one than the feature-film counterpart, as so many creative decisions are made by the showrunner. That could make it easier to attack gender disparities in the comparatively lower-status world of episodic television directing.
However this plays out, the ACLU upped the pressure Thursday with the announcement of a petition directed at the government civil rights agencies. Said the organization’s Melissa Goodman previously, “External oversight and pressure are needed to fix this long-running civil rights problem.”