Diversity and Inclusion in Entertainment: Legal Perspectives and Initiatives

Nov. 17

The entertainment industry has the power to shape our perceptions, challenge stereotypes, and inspire change. However, for many years, it has faced criticism for its lack of diversity and inclusion, both in front of and behind the camera. In recent times, the push for more representation and inclusivity has gained momentum, backed by legal initiatives and evolving regulations. In this blog, we will delve into the legal aspects of diversity and inclusion efforts in the entertainment industry, exploring recent initiatives and legislation that are driving positive change.

The Legal Imperative for Diversity and Inclusion

The entertainment industry is no stranger to legal challenges related to diversity and inclusion. Discrimination, unequal pay, and a lack of opportunities for underrepresented groups have sparked numerous lawsuits and controversies over the years. In response, lawmakers and advocacy groups have taken action to address these issues.

One of the most significant legal frameworks promoting diversity and inclusion in the entertainment industry is the federal law, Title VII of the Civil Rights Act of 1964. This law prohibits discrimination based on race, color, religion, sex, and national origin in employment. While Title VII applies to all industries, it has had a profound impact on the entertainment sector, encouraging studios and production companies to adopt more inclusive practices. And then note that states like California and New York, where the entertainment industry thrives, also have their own, similar legislations, and even broader than federal law protections.

Recent Initiatives and Legislation Relating to Diversity and Inclusion in Hollywood and Beyond

1. The #OscarsSoWhite Movement: The lack of diversity among Oscar nominees and winners has been a hot topic in recent years. This grassroots social media campaign shed light on the industry's underrepresentation of people of color. While not a legal initiative per se, #OscarsSoWhite played a crucial role in pressuring the Academy of Motion Picture Arts and Sciences to implement changes in its membership and voting processes to increase diversity with the New York Times calling it “the hashtag that changed the Oscars.”

2. California's AB 979: In 2020, California passed Assembly Bill 979, which requires publicly held corporations headquartered in the state to have a minimum number of directors from underrepresented communities on their boards. While this legislation applies to all industries, it has implications for entertainment companies based in California.

3. The Inclusion Rider: The brainchild of dynamic former civil rights lawyer now appointed EEOC Commissioner, Kalpana Kotaga, and infamously mentioned by Frances McDormand during her 2018 Oscar acceptance speech, an inclusion rider is a clause that actors and producers can insert into their contracts to ensure diversity and inclusion in a film's cast and crew, or, as explained by the Washington Post, “It’s a way to legally guarantee that a film production crew — from off-leads and extras to grippers and makeup artists — reflects the diversity of America.” While inclusion riders are not “legally required” under most laws, the idea of their inclusion has gained traction as a practical tool for promoting diversity in Hollywood, with the Washington Post reporting that “now there are theater companies, arts festivals, and even JAMS, the global arbitrations and mediation services provider, working with the rider.” Following the introduction of the inclusion rider, in 2020, the Academy of Motion Picture Arts and Sciences announced new representation and inclusion standards for Oscars® eligibility in the Best Picture category, “designed to encourage equitable representation on and off screen in order to better reflect the diversity of the movie-going audience.” The representation and inclusion standards include “that a movie features a lead or supporting character who is from an underrepresented racial or ethnic group, that the movie has a main storyline focused on an underrepresented group in some way,” or that the movie has at least 30% of its cast come from two or more underrepresented groups.

4. The Crown Act: Several U.S. states have passed or introduced legislation known as the Crown Act, which stands for "Creating a Respectful and Open World for Natural Hair." This legislation seeks to combat discrimination based on natural hair texture and hairstyles, which disproportionately affects Black individuals. While not specific to entertainment, it has implications for the industry's grooming standards.

The Impact of Diversity and Inclusion Initiatives

Diversity and inclusion initiatives are not merely about complying with the law; they are about reflecting the world we live in and telling authentic stories. These initiatives have several significant impacts on the entertainment industry:

Expanding Creative Horizons: Diverse representation allows for a broader range of stories to be told, enriching the cultural tapestry of entertainment. It opens the door to narratives that were previously overlooked or ignored.
Tapping into New Audiences: A diverse audience wants to see themselves represented on screen. By catering to these audiences, the entertainment industry can expand its reach and profitability.
Attracting Talent: Inclusion initiatives make the industry more attractive to underrepresented talent, both in front of and behind the camera. This, in turn, fosters creativity and innovation.
Mitigating Legal Risks: By proactively addressing diversity and inclusion, entertainment companies can reduce the risk of costly discrimination lawsuits and negative public relations.

Challenges and Resistance: Supreme Court ripple effects

While the journey towards inclusivity and diversity in Hollywood has indeed seen commendable progress over recent years, we’re still far from where we need to be. To further complicate things, the winds of change have brought along certain challenges. The U.S. Supreme Court's recent ruling on affirmative action might introduce unanticipated obstacles to Hollywood's diversity, equity, and inclusion (DEI) initiatives.

The ruling raises the alarm for all DEI initiatives that might potentially be viewed as treating people differently based on protected characteristics. Such initiatives now lie at the epicenter of potential litigation concerns, especially from individuals who might feel that these programs put them at a disadvantage.

As noted by the Hollywood Reporter, one noteworthy initiative that could come under scrutiny is The Ladder and The Producers Inclusion Initiative, a collaboration between Netflix and Shondaland. The program was crafted with the intention of opening doors for those from underrepresented groups, providing them with the essential training and experience to flourish as line producers. The eligibility criteria explicitly state that applicants must come from underrepresented communities, including BIPOC individuals.

Drawing parallels, one might look at a similar mentorship initiative at Starbucks. This program, dedicated exclusively to Black, indigenous, and other minorities (excluding Asians), has been challenged by America First Legal, alleging that it infringes upon civil rights laws. Starbucks, in response, reaffirmed its commitment to fostering an environment where everyone feels welcome.

While progress is undeniably being made, challenges and resistance persist in the journey toward a more diverse and inclusive entertainment industry. Some individuals and entities argue against what they see as "forced diversity," believing that such initiatives might clash with creative freedom. However, advocates for DEI beg to differ. They argue that diversity and inclusion don't hamper creativity but rather enhance it. The success stories of movies and TV series with diverse themes and casts, which have garnered global acclaim, stand as a testament to this claim. Moreover, DEI efforts are not about imposing rigid quotas; they aim to carve pathways for underrepresented talents to shine based on their intrinsic worth and talent.

While the Supreme Court's ruling didn't specifically target the entertainment industry, the potential ramifications are clear. Hollywood, which has been at the forefront of driving cultural change and challenging societal norms, may now need to revisit and reassess its approach toward DEI. Litigation remains a looming concern, and how the industry chooses to navigate this legal minefield will set the tone for the future of diversity in Hollywood.

The Role of Representation in Legal Initiatives

Representation matters not only on screen but also in legal and policymaking arenas. The lack of diversity among lawmakers and industry leaders can hinder the development and implementation of effective diversity and inclusion initiatives.

Efforts to increase diversity in legal professions, advocacy groups, and regulatory bodies are gaining traction. When individuals from underrepresented backgrounds are involved in shaping and enforcing policies, they bring unique perspectives and experiences that can lead to more equitable and effective initiatives.

The Way Forward

The push for diversity and inclusion in the entertainment industry is not a passing trend; it's a necessary evolution. Legal initiatives and changing societal norms have created an environment where inclusivity is not just a moral imperative but a legal one.

Key Recommendations for Increasing Diversity in the Entertainment Industry

As an entertainment employment attorney, I've witnessed firsthand the myriad ways in which the industry grapples with diversity initiatives. While the intent is noble, the execution often falters, sometimes leading to inadvertent discrimination. Here are a few key takeaways and recommendations for industry professionals:

Rethink Recruitment: There's a prevalent tendency to directly target diverse candidates. While well-meaning, selecting an individual solely based on their diverse background could actually constitute a discriminatory practice (consider the fact that this means choosing one individual over another solely because of their race, religion, national origin, etc. That’s prohibited under local, state, and federal laws). Instead, the emphasis should be on widening the candidate pool. This ensures that you're not selecting diverse candidates because of their backgrounds but because they're truly the best fit for the role.

Career Fairs at Diverse Educational Institutions: While it's common to scout talent from renowned film or art schools, expanding to a broader range of educational institutions can be eye-opening. Consider hosting or attending career fairs at community colleges, historically black colleges and universities (HBCUs), tribal colleges, or institutions known for a significant international student body. These fairs can unveil a reservoir of untapped talent that might not have had the same exposure or opportunities as those from premier institutions.
Engage with Diverse Professional Groups and Work with Diversity Advocacy Groups: Instead of narrowing recruitment drives to specific ethnic or gender groups, consider partnering or exploring with professional organizations and diversity advocacy groups that champion diversity in its myriad forms. For instance, organizations like the National Association for Multi-ethnicity in Communications (NAMIC), Free the Work, Color of Change Hollywood, Array or Women in Film are just a few examples of excellent starting points. Partnering with such groups can provide insights into potential recruitment channels previously overlooked.
Leverage Social Media: Use platforms like LinkedIn, X (Twitter), or even Instagram to advertise positions. Encourage current employees to share these postings within their networks. Given the global and diverse user base of these platforms, it's a fantastic way to get the word out to a broad audience.
Internship and Mentorship Programs: Offering internships and mentorship opportunities can be a proactive way to nurture and discover talent from diverse backgrounds. Partnering with educational institutions or non-profits dedicated to such causes can ensure a steady stream of diverse candidates eager to learn and contribute.
Collaborate with Diverse Film Festivals: Film festivals dedicated to specific ethnicities or genders have become prominent over the years. Collaborating with such festivals can be a pathway to discovering unique talents who may not have had the spotlight in more mainstream events.
Bypassing the "Tap on the Shoulder" System: The entertainment industry is notoriously known for its 'tap on the shoulder' system, where hires are often based on internal recommendations rather than objective evaluation. This system, akin to the concerns raised in the infamous Dukes v. Walmart gender discrimination case, inadvertently perpetuates an environment where hires mirror the existing demographics. By relying on referrals from existing employees, we may unintentionally create barriers for talented individuals outside these circles.
Broaden the Job Posting Process: If genuine diversity is the goal, then positions need to be made widely available. Casting a wider net by publicly posting positions can yield a richer array of candidates from diverse backgrounds and experiences.
Reevaluate Educational Requirements: The movement against degree inflation (aka the #paperceiling), as highlighted in this Vox article and the aim of Tear the Paper Ceiling, sheds light on the unnecessary barriers created by stringent educational requirements. For many roles, especially in the creative industry, the skills and talents required don't necessarily align with formal education. By emphasizing degrees, we might be sidelining a vast pool of talented individuals who could bring diverse perspectives and creativity. It's essential to question whether a particular degree is genuinely necessary for a role or if it's merely a historical relic.

In essence, creating a genuinely diverse workplace means challenging the status quo. It requires introspection and a willingness to adapt. Instead of narrowing our vision, we should be expanding our horizons, ensuring that every talented individual, regardless of their background, has a fair shot in the dynamic world of entertainment.

And remember, the goal isn't just about filling a quota; it's about recognizing and giving opportunities to diverse voices that have been historically sidelined. By casting a wider net and getting creative with recruitment strategies, industry executives foster a genuinely inclusive environment and benefit from the rich tapestry of ideas and creativity that such diversity brings.

Interested in learning about ways to increase diversity within the entertainment industry or as part of your workforce? Contact Wagner Legal PC for more information about our employment counseling services, which include ways to tackle diversity initiatives legally. Don’t forget to subscribe to receive the Legal Cut, a newsletter built to keep you informed with the latest legal insights of employment details entertainment industry!