The Legality of Inclusion Riders
What is the end of Civil Rights? The notion suggests complete equality under the law. We’ve all supposedly entered into a civil contract with one another in which our natural rights are transferred to the sovereign body, or the people in our case. However, in practice a great number of us have seen far less than equal treatment. In the United States, beginning in the 1950’s, a concerted effort to reclaim the promise of equality emerged from among students, religious leaders, and everyday people across the country. Like many movements alive with the energy of its participants, this one seemed to have met its end all too quickly in the late 1960’s, when a number of devastating assassinations reduced its leadership. What’s more, fifteen years of federal efforts against radical political organizations had contributed to its destabilization for better or worse. Although this movement has been celebrated for its successes in bringing justice to an unjust society, its first and greatest end – equality before the law – has never been achieved.
Lately, one of the more visible offshoots of the mid-century freedom movement has found its light in Hollywood. The #MeToo movement has made the issue of sexual violence an open topic for discussion with some truly important consequences. One of these consequences attracted a good deal of attention when Francis McDormond gave us two words at the 2018 Oscars: Inclusion Rider.
An inclusion rider is a clause in an actor’s contract which stipulates that good faith efforts must be made to redress hiring biases and bring much needed diversity to an industry. The film crew will achieve demographic parity, meaning the crew working the film will have 50% women 50% minority, 20% people with disabilities, and 5% LGBTQ. This ratio would address the famous imbalance of diversity in Hollywood and across the country. What the contractual stipulation would do is:
Inclusion Riders are contractual stipulations whereby good faith efforts can be made to redress hiring biases.
Ultimately, the concept of an Inclusion Rider is a continuation of the effort achieve equality in all social arenas - not just entertainment, but the legal, academic, financial, and corporate professions should continue to work towards parity.
In light of the push back, led in large part by the recent administration, against the growing trend social justice and civil equality, I wondered what sort of challenges a concept like inclusion rider would face. Would there be first amendment protests by the hard right claiming that pushing for equal representation trampled on their rights? Well, in spite of the brevity of inclusion riders’ fame, there are already some arguments made against them, albeit these are less a serious critique of principles, then they are watered down practical problems. I want to address this criticism, mostly because it’s an opportunity to flesh out the consequences of inclusion riders through discourse, but first I want to actually address the underlying principle of the matter to be sure of its validity before any haters come around and throw this thing under the bus as another attack on their right to say whatever disrespectful thing they would like.
I had to come at this question, which I’m still only assuming is worthwhile to talk about, as a novice, namely, are inclusion riders legal? Can we really force an organization to hire according to a prescribed mix of ethnicities, genders, sexualities, and class? First of all, this made me think about the clauses on the bottom of every hiring packet, saying that the organization does not discriminate on the basis of sexual orientation, gender, race, disability, etc. Wasn’t this called Affirmative Action, and didn’t this hiring practice come under fire in the 1990’s by angry conservatives? I had to learn more, so I looked it up.
The first use of the term ‘Affirmative Action’ was used by John F. Kennedy in 1961 in Executive Order 10925 which states, among other things, that “it is the plain and positive obligation of the United States Government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin.” A later order signed by president Johnson broadened these protections to gender and helped establish the Equal Employment Opportunity Commission. These orders generally made it illegal for employers to discriminate on the conditions given above.
Since then, three landmark supreme court cases regarding in university admissions have decided the legality of Affirmative Action on the federal level. The first case, Regents of the University of California v. Bakke, decided in 1978 that Affirmative Action as part of university admissions processes was legally permissible, although quotas were not. This decision and distinction between A.A. and quotas was reaffirmed by the 2003 case Grutter v. Bollinger, which argued that the University of Michigan Law School’ Affirmative Action admission policies violated the 14th amendment and the Civil Rights Act of 1964 because they favored African American and Latino students over a white woman who had higher test scores.
While Affirmative Action policies and legislation have a long and controversial history, there’s one important thing to remember to note when it comes to inclusion riders. That is: they are contracts, not legislation. There is very little for the more conservative among us to object to if two parties willingly enter into a contract together. They have only one path to argue, which is a moral objection to the very idea of diversity as such. They will argue that it is some kind of quota, and they may even point to Gratz v. Bollinger, another landmark decision where a points-based university admission system rewarding diversity was ruled unconstitutional. However, it would be incorrect to cite any of these rulings, because inclusion riders are contracts, and only the breeching of a contract can be brought to a court. It would be like agreeing to pay $40 for a clean apartment, but refusing to pay the $40 because once the apartment was cleaned because it seems lazy to pay for a cleaning service.
While I might not expect inclusion riders from actors like Mel Gibson and Charlie Sheen, other A-list actors are already declaring their support. Once enough actors put these stipulations in their contracts, we may start to see changes to Hollywood’s diversity problem.
Written by Quixote Vassilakis
You might recognize his work A Short Polemic on Men’s Rights