Meet the Lawyer Working on Inclusion Rider Language

At the Oscars in March, Best Actress winner Frances McDormand made “inclusion rider” go viral. But Kalpana Kotagal, a partner at Cohen Milstein Sellers & Toll had already worked for months to write the language for such provisions. Kotagal was developing legal language for contract provisions that Hollywood's elite could use to require studios and other partners to employ diverse workers on set.

Civil rights and employment litigator Kotagal and her colleagues from the Media, Diversity and Social Change Initiative — renamed the Annenberg Inclusion Initiative — at the University of Southern California's Annenberg School for Communication and Journalism had been discussing inclusion riders with Hollywood agents and lawyers. “What we hope is that this kind of change, driven by those with power in the industry, will help to make this the normative practice industry wide,” Kotagal says.

The initiative, which was founded and directed by Professor Stacy Smith, is now including the music industry in its groundbreaking research on diversity and inclusion.

Prior to the March Academy Awards ceremony, Kotagal made the following comments in an ALM interview.

Q: To start off, how did you get involved in this initiative, and why?

Kotagal: I originally got connected to Stacy Smith through my colleague Anita Hill, who is Of Counsel at Cohen Milstein and knows Stacy as a fellow academic working on issues of diversity, inclusion and inequity. They approached me about working on a version of the “Rooney Rule” that addresses issues of inclusion and hiring in the film and television industry.

So I've been working with Stacy for the past year to develop legal language for a contract provision that A-listers can take into studio negotiations to foster a more fair and inclusive hiring process. That's how I got connected to Stacy originally.

What's quite clear when you look at what's obviously a bubbling-up crisis of diversity in Hollywood, that has spawned men like Harvey Weinstein, Brett Ratner and others in this wave of sexual harassment allegations, is the industry is lacking genuine diversity in so many dimensions. The work Stacy is doing in the now-rebranded Annenberg Inclusion Initiative puts hard numbers on that lack of diversity, measures it, analyzes it, and also — to Stacy's credit — really is searching out solutions to the problems.

So that's why I wanted to get more involved. And, I really think we've wrung our hands a lot — we being folks who work on civil rights issues, on issues of inclusion and diversity. I think what's compelling to me as a litigator here is there often are solutions to these problems, and we have to be willing to ask hard questions and push to see those solutions realized. That is why I am eager to be working with this board.

Q: What will your duties be as an advisory board member?

Kotagal: There are people who work on mental health issues, people who work on gender issues, people who work in film or in television. So the board is intended to help provide the initiative with insight and advice from our particular areas of expertise and also to help amplify the work the initiative is doing.

Q: Why is it important to have legal voices on this board?

Kotagal: From my standpoint, I'm an employment lawyer, a civil rights lawyer and a litigator. That's given me real insight into what it looks like when companies get it right and what it looks like when companies get it wrong, and how it is that an industry can build and advocate for best practices on the employment side. So I expect that my experience will help to advise the kinds of solutions to problems in the industry related to employment.

Q: Stacy Smith said in an interview that this effort is called an initiative, as opposed to a think tank or institute, because the hope is that it's temporary, and that these problems can be fixed. Do you think that's possible?

Kotagal: This industry could apply best practices to its hiring and casting process and to its process for selecting what content gets made, and applying those practices could start a radical shift in what comes out of the industry and what product it makes. And there is an appetite for that product. We haven't been able to study it on a wide scale because there isn't enough yet. But we know from examples — Hidden Figures — that these are stories people will go see.

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Cogan Schneier is a Washington, DC-based litigation reporter for ALM, covering D.C. courts, national litigation trends, the Justice Department and the federal judiciary.