Warner Media Implements New Inclusion Policy

It seems fitting that a new movie that highlights racism and inequity in the American prison system is the first Hollywood production to apply a policy aimed at increasing diversity and inclusion both in front of and behind the camera. WarnerMedia, the parent company of Warner Bros., announced last month a companywide commitment to greater inclusion of women, people of color, the LGBTQ+ community, those with disabilities and other underrepresented groups in all of its projects going forward.

The first project to formally implement the policy, which also will apply to WarnerMedia-owned HBO and Turner, is Just Mercy, an upcoming film starring Michael B. Jordan, who serves as an executive producer on the project and worked with WarnerMedia to establish the policy. (The film is based on the memoir of the same name by Bryan Stevenson, founder and executive director of the Equal Justice Initiative in Montgomery, AL. It is set to begin filming in Atlanta.)

“Inclusivity has always been a no-brainer for me, especially as a black man in this business,” Jordan said in a news release. “It wasn't until Frances McDormand spoke the two words that set the industry on fire — inclusion rider — that I realized we could standardize this practice. … This is a legacy-bearing moment.”

Although Hollywood has faced criticism about the lack of on-screen diversity for years, it was actress Frances McDormand's acceptance speech giving a nod to so-called inclusion riders at the Oscars last March that galvanized efforts to improve the lack of accurate representation in the entertainment industry.

The inclusion rider is a contract provision that Hollywood's A-listers can use to require studios and other partners to employ diverse workers on set. And it's a tool that entertainment companies and others in the industry can use to help ensure that those appearing in onscreen worlds, as well as crew members, look more like the world we live in, said Cohen Milstein Sellers & Toll law partner Kalpana Kotagal.

Along with Stacy Smith, director of the Annenberg Inclusion Initiative at the University of Southern California, and Fanshen Cox DiGiovanni of Pearl Street Films, Kotagal co-authored an inclusion-rider template. The trio had been working on inclusion-rider language before McDormand's shout-out.

Kotagal quickly pointed out, however, that WarnerMedia's new policy goes beyond simply adopting an inclusion rider to making explicit the company's commitment to diversity and inclusion business-wide. “There's no reason that valuing diversity and inclusion can't be good for business, and my hope is that [WarnerMedia] will show us how true that is and that others will follow suit,” she said.

The new policy does not include specifics but rather states that “in the early stages of the production process, we will engage with our writers, producers and directors to create a plan for implementing this commitment to diversity and inclusion on our projects, with the goal of providing opportunities for individuals from under-represented groups at all levels.”

The company also pledged to issue an annual report on its progress. This element of the plan poses concern for Roger Clegg, president and general counsel at the Center for Equal Opportunity, a conservative think tank devoted to issues of race and ethnicity. “As long as the focus is on making sure opportunities are there for everyone and that there are no barriers that prevent the best-qualified people from getting a job, there's no problem,” he said. “The problem comes when we talk about an annual report on our progress. Does progress mean hitting particular numbers? Then we're talking about quotas, and quotas mean discrimination.”

Kotagal acknowledged the risk of quotas but noted that inclusion riders can withstand scrutiny if they are flexible and avoid rigidity. “It's important to get it right,” she said of the inclusion-rider contract. “It has to be implemented in a careful and thoughtful and defensible way that involves counsel.”

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Kristen Rasmussen writes for Corporate Counsel, an ALM sibling of Entertainment Law & Finance. She can be contacted at [email protected].