The Inclusion Riders Storm

Those of us who managed to sit through the Oscars, with their usual predictability and redundancy, would have heard the Best Actress Winner, Frances McDormand, give an impassioned speech about diversity which ended with these words: “I have two words to leave with you tonight, ladies and gentlemen: Inclusion rider.”

Since then, A-list celebrity and star of Black Panther, Michael B. Jordan, became the first to announce that his company, Outlier Society Productions, would adopt the rider for its projects. Matt Damon and Ben Affleck recently announced that their film company is to use “inclusion riders” in its contracts as part of a drive to improve diversity on and off screen. Brie Larson took to Twitter to embrace the idea, seemingly promising her commitment as well. On the other hand, Ava DuVerney, who recently released her film A Wrinkle in Time, admitted that she acquired diversity in her crew without the need for similar provisions.

So what are Inclusion Rider provisions? Something that McDormand discovered only a week before the Oscars? Sure. But from a legal standpoint, it’s a clause of condition that actors with negotiating power can include in their contracts, essentially a demand that studios “make a good-faith effort to hire more women and other historically underrepresented groups in both onscreen and off-screen roles,” as a discrimination lawyer trusts can explain. Associate professor at the University of Southern California, Stacy L. Smith, who was instrumental in the earliest stages of this concept, describes the process in a 2016 TED Talk, where she pointed to the role A-List actors can play in incorporating expectations of diversity, both on camera and behind the scenes, as a stipulated representation of how “those roles reflect the world in which we actually live.”

While not a quota system per se, the collaborators who helped pilot this novel legal venture described the concept in terms of expanding the diversity pipeline in Hollywood and helping bridge the “gap between the demographics of the U.S. population and that of popular films.” Kalpana Kotagal, a partner with Cohen Milstein and among the language architects for the provision, noted the role lawyers can play in helping Hollywood achieve its diversity goals: “[t]here’s a long tradition in the bar of attorneys helping to shape and craft campaigns for social change . . . [t]here are lots of different ways that we as lawyers can be part of driving fairer and more equitable workplaces across the country.”

While Hollywood is an expert performer, only time will tell if their rhetoric on inclusion and diversity will transform the employment field and whether those efforts will translate to better products on-screen.