March 28, 2018

By Kalpana Kotagal

Over the last few weeks, thanks largely to Frances McDormand’s acceptance speech at the Academy Awards, the “inclusion rider” has taken center stage in Hollywood. The inclusion rider is an addendum to an industry heavyweight’s contract that stipulates a process for ensuring minority representation in the audition and interview pools and establishes objectives and tracking requirements for casting and hiring.

The unique strength of an inclusion rider is that it leverages the bargaining power of people who already have industry clout to drive change, rather than placing the burden on the marginalized. Without imposing any quotas, it mandates consideration of the deep bench of talented candidates from historically underrepresented backgrounds. In the past two weeks, big names including Matt Damon, Ben Affleck and Brie Larson have pledged to use their influence to open a wider door to their projects, rejecting the myth that diversity and highly qualified candidates are somehow mutually exclusive.

Although the focus thus far has been on Hollywood, the inclusion rider’s power extends beyond Hollywood in its potential to change the landscape for women, people of color, members of the LGBTQ community, or those with disabilities working across the economy in industries ranging from media and health care to technology and financial services. At its core, the inclusion rider embodies a set of best practices for hiring that are simply common sense.

In the absence of leadership from Washington, state attorneys general across the country must embrace their role as the de facto first line of defense for American workers. Last week, I spoke at the Democratic Attorneys General Association spring policy conference to encourage the room to continue embracing the challenge.

In Massachusetts, an updated state Equal Pay Act will take effect this summer with new protections for workers, greater clarity on what constitutes gender-based wage discrimination and incentives for employers to address gender-based pay disparities. Attorney General Maura Healey has aggressively pursued litigation against construction companies that falsely certified compliance with equal opportunity requirements on construction contracts and then used funds from those settlements to provide grant funding to organizations that promote equal opportunity for women and minority workers and small business owners in the construction industry.

In Washington state, Attorney General Bob Ferguson has sued the second-largest private prison provider in the country for failing to pay its workers, comprised of mostly immigrant detainees, the minimum wage and asked the court to order the company to forfeit its ill-gotten profits. Despite the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (DACA), Attorneys General Healey and Ferguson joined New York Attorney General Eric Schneiderman and California Attorney General Xavier Becerra in leading lawsuits filed by 21 state attorneys general that have successfully kept DACA alive, protecting Dreamers and the $460 billion they contribute to the economy.

In a political climate that threatens to expose workers everywhere to increased vulnerability and uncertainty, state attorneys general have both the opportunity and the obligation to stamp out discriminatory labor practices in their states. The growing profile of inclusion riders in Hollywood should jumpstart a nationwide movement across industries, hopefully ingraining diversity so deeply in corporate culture as to one day render inclusion riders obsolete. But until that day, the American people need their lawyers, both public and private, to stand up.

Kalpana Kotagal is a partner in the Civil Rights & Employment practice group and chair of the hiring and diversity committee at Cohen Milstein Sellers & Toll PLLC.

The full opinion piece can be accessed here.