"Inclusion Rider"-What's That?

By: Amy Epstein Gluck

New buzz phrase, y’all. It’s been around awhile, but just received a LOT of attention due to the 2018 Oscar awards and Frances McDormand’s Best Actress speech, which, if you’re so inclined, you can read about here.

So, what exactly is it?

An “inclusion rider” floats the idea that A-list actors may have enough clout to require studios and the powers that be to include percentages of diverse people onscreen and in “below the line” positions (the crew, like behind the camera) on films in which they star —the same films where women, POC (that’s “people of color” for all of you not #woke), and members of LGBTQ communities have been underrepresented.

Remember, these are basically employment contracts and movie sets are workplaces!

A failure to meet the terms of the rider could cause the studio or distributor to incur a monetary penalty likely (I would think) in the form of liquidated damages. 

What are liquidated damages?

A liquidated damages clause in a contract specifies an amount of damages to be paid by a breaching party in the event of a specifically defined breach. I’m guessing these numbers would need to be quite high in order to be effective in Hollywood, and I’m thinking that only true A-list celebs will be able to command such clauses.

BUT, be aware: any such clause (in Hollywood or more mundane workplaces) must reasonably relate to the actual damages to be suffered or courts may consider such a clause an unenforceable penalty, and…. that defeats the whole purpose! It will be interesting to see the language used for these clauses IRL.

Wait, what. Where Did This Concept Even Come From?

The concept of an “inclusion rider” was explored in a TED talk in 2016 by Stacy Smith, founder of the Annenberg Inclusion Initiative at the University of Southern California, as discussed in this Guardian piece.

Smith likens the implementation of the inclusion rider to the NFL’s “Rooney Rule.” I know very, very little about the NFL, but I know the Rooney Rule requires teams to interview minority candidates for head coach and other senior football positions.

From the Rooney Rule to the Mansfield Rule

Also, remember that in 2017, the Rooney Rule inspired the “Mansfield Rule,” discussed by our friends at Above the Law, here.

That reminds me—I have been meaning to write about the Mansfield Rule since returning from Women Law 2018 held in San Francisco last month, presented by the ARK Group, which included a presentation about the Mansfield Rule by Diversity Lab. The Mansfield Rule is a program that will certify law firms that consider significant numbers of women and minority attorneys for leadership roles. The Rule is named after Arabella Mansfield, who was the first woman admitted to practice law in the United States, and arose out of the 2016 Women in Law Hackathon, a collaboration of Diversity Lab, Bloomberg Law, and Stanford Law School to find ways to take real steps to eliminate the gender gap.

The Rule requires law firms to affirmatively consider 30% women or attorneys of color for 70% of specified leadership positions including equity partner promotions, leadership and governance roles, and lateral hires. If firms succeed in considering an applicant pool that consists of at least 30% diverse candidates, they will be considered “Mansfield Certified,” which will, in turn, allow them to participate in a client forum hosted by the in-house legal departments of 70 major corporations, including Microsoft, Hewlett-Packard, Google, PayPal, Mastercard, Facebook, and a whole host of other well-known large corporations.


Anyway, Smith was stoked by the Best Actress’s speech and said that inclusion riders could be used to ensure fair pay on sets: “The goal here is to really put it in the hands of the most powerful people.”

I like it!

Given America’s fascination with pop culture, when people start seeing films that represent as commonplace the population they actually see in the world, perhaps movements toward diversity in all industries—not just Hollywood and in law firms—will increase, and boys’ clubs and gender pay gaps will be a thing of the past. This coupled with movements like #MentorHer could really move the needle in diversity and discrimination.

Want to know more? Connect with us at FisherBroyles to help navigate these issues.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.