When Frances McDormand asked that all the female nominees stand up at the 2018 Oscars, the majority of women who stood were white. And when she left the stage with Best Actress Oscar in hand and said "inclusion rider," online pundits began defining the term as a clause meant just to stipulate that 50 percent of a film crew had to be female, causing some to view it as yet another example of white feminism. (Emma Stone's Oscars dig at the male directors nominated, two of which were men of color, also did not help.) But the inclusion rider isn't just for white women, a point co-creator and Civil Rights and Employment attorney Kalpana Kotagal wants everyone to understand.
"I want to make sure that it's completely clear that we recognize that the group that has most been challenged by the status quo in the industry are women of color," she tells me over the phone a few days after the Academy Awards. While co-creator Stacy Smith of USC Annenberg's Media, Diversity & Social Change Initiative did describe the inclusion rider as a tool to get more women on sets in its initial definition, Kotagal insists that the inclusion rider is actually meant to encourage "multiple dimensions of diversity" — which, yes, means women of color too.
Along with Smith and their other co-creator Fanshen Cox DiGiovanni of Pearl Street Films, Kotagal has been working to expand the reach of the inclusion clause. "We recognize that diversity is broad and wide, and so we've conceived it to think about race and gender, to think about LGBT status, to think about disability status, and certainly we can also think about how... age can be a part of that discussion as well," she says.
The inclusion rider, Kotagal explains, is not a rigid set of rules or quotas, but rather a flexible contract clause that can be tailored to a client's specifications. "We fully expect that the rider will evolve and grow as it's actually used in negotiations. We look forward to that process of building and improving it," she says. Moreover, it isn't necessarily about hiring a certain number of a certain kind of ethnicity or gender, but about opening the application pool in a way that is more fair and reflective of society.
"This is a flexible framework that starts from what I think is a completely non-controversial proposition that workplaces are better off when they consciously build broad and diverse and well qualified pools of candidates from which to make hiring decisions," Kotagal explains. "There is no reason that for the vast majority of films, that the smaller roles on screen and several crew roles off screen, can't truly reflect the world we live in, and that's really what we're driving at here."
Inclusion riders are a fairly new strategy, and while Kotagal says she knows there are some actors and agencies currently trying to put it into practice, the complexity and length of contract negotiations have made collecting data on its success not yet possible. Still, its creators appear eager to see how these riders evolve as they are used by more actors, studios, and agencies, each of which might put their own spin on them. "Our objective is to really measure its use and success, so that over time we can figure out how to make it work better," Kotagal says, adding, "Stacy and I are deeply committed to making this contractual provision the absolute best and most effective it can be."
The inclusion rider is something meant to help increase diversity across all fronts, but because of its nature — Kotagal describes it as a tool to "use the existing power structure in Hollywood to help drive change" — it requires participation from one very specific group: straight white men. An inclusion rider is only effective when those in power use it, or, in the case of big Hollywood stars, when they demand it in contract negotiations.
"While I am delighted that Frances McDormand is going to use this... we are also working with, and really will focus on working with... straight white men," Kotagal says. "It is primarily those folks who have the kind of bargaining power to take this clause in negotiations with studios and say, 'Look, I really want to be in your production, but I'm not going to be in your production unless you agree to these much better workplace practices.'"
The burden of change shouldn't fall onto those being oppressed, Kotagal adds, saying, "It shouldn't be for women of color to transform the industry that... they have struggled with and suffered under." Though she cannot name any of the men who have already expressed interest in using an inclusion rider, the attorney hopes they will take it upon themselves to speak out and hopefully inspire more Hollywood stars to hop onboard. It's not enough to simply wear a Time's Up pin on the red carpet — one must also walk the walk.
That said, Kotagal is the first to recognize how much the newfound popularity of the inclusion rider owes to the Time's Up and Me Too movements. "I think about what has happened in the last 18 months and the way that women have come forward and spoken out, and I really see us as standing on their shoulders," she says. "And this strategy is part of this really much broader movement to change the way that women are valued, and people of color are valued, and the LGBT community is valued, and immigrants and people of different abilities are valued in the world that we live in."
In fact, Kotagal adds, the women are currently working with Time's Up to help establish the inclusion rider as an industry-wide practice — and then change Hollywood for good. "Our hope here, our objective here, is to eventually make the inclusion rider obsolete or unneeded," the lawyer says.
One day in the future, we hopefully won't need inclusion riders to make sure women, people of color, members of the LGBT community and of the disability community get a fair shot in Hollywood. But for now, inclusion riders are not only necessary, but crucial if we want to see any kind of institutional progress.