March 05, 2018

Kalpana Kotagal, a Civil Rights & Employment partner at Cohen Milstein Sellers & Toll PLLC, had already switched off the TV on Sunday night when Frances McDormand took the stage at the Academy Awards and drew the world's attention to her work.

"I have two words to leave with you tonight, ladies and gentlemen," McDormand said at the conclusion of her speech, accepting her second Oscar for best actress. "Inclusion rider."

The speech sent audiences racing to Google to research the relatively obscure phrase, which refers to a clause actors with negotiating power can insert into their contracts requiring studios to make a good-faith effort to hire more women and other historically underrepresented groups in both onscreen and offscreen roles.

Kotagal had been developing and advocating for the rider behind the scenes for more than a year before its unexpected airing on one of the world's most widely watched telecasts.

"I woke up this morning and my phone was just exploding," Kotagal said on Monday. "It is an incredible moment. We've been working on this for quite a while and advocating for it as a really viable and straightforward solution for at least part of the hiring and inclusion crisis in Hollywood. And I thought, 'Wow, oh my gosh, we've done it. Here we are, we're actually getting to talk about it.'"

The idea, which is somewhat analogous to the NFL's Rooney Rule, was described in an October 2016 TED talk on gender bias in Hollywood films given by Stacy Smith, founder and director of the University of Southern California's Annenberg Inclusion Initiative, which studies diversity and inclusion in the entertainment industry.

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Cohen Milstein of counsel Anita Hill had introduced Kotagal to Smith shortly before the talk, and in fall 2016 the pair began collaborating, along with Fanshen Cox DiGiovanni, head of strategic outreach at Pearl Street Films, on an effort to make the inclusion rider a reality.

"I sat down and started drafting it and thinking about the legal issues that would arise: concerns about reverse discrimination and how to avoid quotas and those kinds of issues," Kotagal said, aiming "to make sure that the language we drafted was really flexible and effectively utilized the kinds of best practices in hiring that a lot of good employers use and made them applicable to this industry."

The inclusion rider is uniquely suited to film and television, where a relatively small group of heavyweights have the market power to push for industrywide changes, but Kotagal said she can envision similar clauses appearing in other industries where high-profile public figures have comparable influence, such as the media industry.

The language in the rider does not mandate quotas but provides a framework for how productions should interview and audition people with the objective of developing a more diverse talent pipeline in Hollywood and closing the "gap between the demographics of the U.S. population and that of popular films," Kotagal, Smith and DiGiovanni said in a statement in December.

The rider is primarily focused on changing the process for how smaller parts, where the demographic of the actor does not affect the story, and "below the line" production roles are filled, and can include financial penalties for studios that do not put forth a sincere effort to broaden their talent pool to include women and minorities.

Kotagal says the development of the inclusion rider can serve as an example of how lawyers can apply their skills and training in service of a larger movement.

"There's a long tradition in the bar of attorneys helping to shape and craft campaigns for social change," she said. "There are lots of different ways that we as lawyers can be part of driving fairer and more equitable workplaces across the country."

The full article can be accessed here.