Inclusion riders, quotas, and confusion

Yesterday, I commented on actress Frances McDormand’s call for Hollywood stars to insist on “inclusion riders” in their contracts. These riders, as I understand them, would condition starring in a film on the producer’s willingness to hire a certain percentage of minorities and women for the production.

Stacy Smith, originator of the idea, has explained that this means “for on-screen roles that are supporting and minor, they have to be filled with norms that reflect the world we live in.” Expanding on this odd statement — how does one fill roles with “norms”? — Smith insisted that in contemporary dramas, the cast would consist of approximately 50 percent women, 50 percent minority, 20 percent people with disabilities, and 5 percent LFBTQ. Mercifully, historical dramas where the formula doesn’t make sense would be exempt.

So “inclusion riders” impose quotas, right? Not according to Kalpana Kotagal, a lawyer who worked with Smith on the idea. She objects that “‘quota’ is such a loaded and dangerous word in this society — it invokes this sense that somehow under-qualified people are going to get my job.” In fact, she claims, the diversity rider “doesn’t say you have to hire somebody who fits demographic group even if you don’t think they’re qualified.”

This was the dodge used by radical civil rights lawyers 40 years ago to cope with charges that they were advocating quota hiring. It is as lame now as it was then.

Quotas don’t exist only when an employer is required to hire unqualified people to fill them. They exist whenever an employer is required to reach or approach a certain level of minority or female hires.

And they are unlawful when they cause employers to prefer less qualified candidates over more qualified ones. It doesn’t matter that the minority candidate is qualified for the job. If the non-minority candidate is better qualified and the employer selects the minority candidate to meet a quota or numerical goal, that’s unlawful discrimination.

The other dodge in Kotagal’s defense of inclusion riders is her claim that they “don’t say you have to hire somebody who fits a demographic group even if you don’t think they’re qualified.” If an employer commits to a quota and falls short, it isn’t sufficient to say you didn’t think the minorities you rejected were unqualified. If challenged, you will have to prove they were unqualified (or less qualified than the white candidates you selected).

If it were otherwise, inclusion riders would be without force. The racists, sexists, and homophobes who, in the view of McDormand, Smith, and Kotagal, control Hollywood would have an easy out. The riders would be just another meaningless gesture.

Thus, diversity riders, if enforceable, would enable judges and juries to substitute their view of who is best qualified to act in a film role for the view of the producer and director. Judges do enough dictating in our society without deciding who should appear in our movies.

Finally, I found it interesting that the originator of the diversity rider concept spoke of it applying to “supporting and minor roles.” Why not major roles?

Is the idea that supporting and minor roles are not important enough for qualifications to matter much? That seems true of extras appearing in a crowd scene. In that case, it makes sense to select people who “look like” the crowd one would expect to find in that setting. But if we’re talking about true supporting cast members, even those in small roles, Hollywood cannot fudge on qualifications for the sake of diversity without reducing the quality of its product and running afoul of the law.

But maybe the focus on supporting and minor roles is intended to enable A-listers to insist on diversity riders without creating the risk that one day they will lose big roles because they are white. After all, if diversity riders are necessary as a matter of “social justice” or to stop Hollywood before it discriminates again, the financial backers of movies should require that half of the total number of leading roles in the films they back (taken collectively) go to minorities, 20 percent to people with disabilities, and so forth.

That way, Hollywood can take its rightful place in the vanguard of America’s march to insanity.

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