Warner Media Implements New Inclusion Policy

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].