The right to contract is fundamental, but one can only contract for things that are lawful. You can include a provision for no brown M&Ms, but not for an ample supply of heroin. In concluding her speech at the Academy Awards, Frances McDormand offered this tip:
I have two words to leave with you tonight, ladies and gentlemen: inclusion rider.
As a general idea, that Oscar winning celebrities use their good offices to push producers to be more inclusive in their casting, this may be excellent advice, although some might counter that casting be done based on the characters needed for the story rather than diversity. Still, there’s much to be said about crowd scenes in New York City that appear as if they were cast in Scandinavia.
People rushed to Google after hearing those two words to find out what she was talking about, because inclusion riders aren’t yet a serious thing.
Simply put: It’s a stipulation that actors and actresses can ask (or demand) to have inserted into their contracts, which would require a certain level of diversity among a film’s cast and crew.
For instance, an A-list actor negotiating to join a film could use the inclusion rider to insist that “tertiary speaking characters should match the gender distribution of the setting for the film, as long as it’s sensible for the plot,” Stacy L. Smith explained in a 2014 column that introduced the idea in The Hollywood Reporter.
On the one hand, this hardly sounds like a bad idea. In fact, it just sounds like good casting. Shouldn’t the tertiary characters match the gender, and other characteristics, of the film’s setting? To do otherwise not only smells of discrimination, but bad movie making.
But if the rider is constructed only of aspirational clauses, with caveats and qualifications that would let everyone off the hook if they failed to do so, then it’s merely precatory and meaningless. But Smith’s inclusion rider appears to be a bit firmer in its requirements.
[Smith] said a typical inclusion rider would set benchmarks for diversity in staffing. As an example, it could require the cast be 50 percent female, 40 percent underrepresented ethnic groups, 20 percent people with disabilities, and 5 percent L.G.B.T. people.
While it’s not entirely clear how one would be able to tell on film what an actor’s sexual orientation is, or whether a disabled person should be blind or suffering from depression, it appears that the word “benchmarks” is used to mean quota, “require the cast be” of a particular gender or race. When it comes to employment, Title VII kicks in.
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
While critical theory may posit that the marginalized should be exempt, the law doesn’t quite do so. It would be a flagrant violation of Title VII for an A-list actor to insist on a rider that required the hiring of white male actors. It would be no less a violation to require a quota of actors based on their race, color, religion, sex, or national origin. Ironically, it would not be a violation to require actors be gay or disabled, as those are not protected classes, although in the Second Circuit it would be prohibited to require the casting of LGBTQ actors in light of the Zarda decision.
But there is an exception to Title VII for bona fide occupational qualifications. If the role calls for a black transgender female, there would be no violation if the casting call said so, and the hiring was limited to actors who met the BFOQ. But this, too, raises both hoary questions as to what really constitutes a BFOQ, and to the challenges presented by complaints that roles don’t really call for actors of a particular race or gender except for discrimination. Why can’t the Ghostbusters be women? Who says the Black Panther has to be black?
In a well-intended effort to eliminate discrimination in entertainment, notions like inclusion riders aren’t as simple as Academy Award winning actresses, or the advocates upon whom they rely, suggest. Not only do these riders open the door to the reverse of their intent, as a rider requiring a quota of women can also do the opposite, but they may also subject the parties to liability for violation of laws designed to prohibit discrimination.
And then there are the unintended consequences of such demands, that A-list actors who make inclusion riders part of the deal are deemed too high maintenance for the role. Better to cast a different A-lister who’s easier to deal with.
Then there are the movies to be made, which may make it far easier to produce a movie about a time and place where there are less inclusion concerns. The business of making movies is business, like any other business. It may be called art, but if it fails to turn a profit, they can’t afford to keep making films. Everything that adds to the cost and difficulty matters in business.
That Hollywood wouldn’t already have an incentive to cast movies more appropriately, in relation to the characteristics of those who should be represented in the film’s setting and plot, is unclear. Is it discrimination? If so, they are doing themselves, and us, a disservice, as they are making films that aren’t as well cast as they should be. But is the answer to introduce quotas?
Maybe producers can’t be trusted not to discriminate, and need a gun to their heads to get them to do better. But violating Title VII and undermining discrimination law as if it’s not a double-edged sword hardly seems like a good way to accomplish this goal.