Such disclosures — of American Hustle’s Jennifer Lawrence and Amy Adams being paid markedly less than their male co-stars, and of a huge gender gap in executive pay — have played a giant role in the recent awareness, and discussion, of gender disparity in Hollywood. It’s a classic case of the difference between the presumption of discrimination and seeing it laid out in black and white, in dollars and cents and percentages of the back-end.
But what’s so striking about the ACLU’s action is how it’s being framed: not as an entertainment issue, but as a social and legal one. It’s not a matter of film fans wringing the hands, but a question of breaking the law. “We think that this discrimination is a civil rights issue,” Migdal says. “And that’s why we’ve asked our civil rights enforcement agencies to get involved. We’ve asked them to look into the systemic bias here—and what that means is, it’s not just, your boss fired you because you’re a woman, but it’s entrenched in your industry, or there’s a handful of big studios and other employers that are involved. So it’s not one person that did something wrong; the whole hiring system is off in this industry.”
In the letter to the Department of Fair Employment and Housing, the ACLU charges, “the Department should develop and file Director’s complaints and initiate an investigation into employers that have a pattern of discriminating against women directors, entities that aid or participate in employment discrimination, and talent agencies that have a pattern of failing to represent women directors, in violation of the Fair Employment and Housing Act (‘FEHA’) and the Unruh Civil Rights Act.” They request that the EEOC “develop and file Commissioner’s charges and initiate an investigation into systemic failure to hire women directors in violation of Title VII1 at all levels of the film and television industry.”
In other words, as the boldfaced email from the ACLU press office begins, “Hollywood employers do not get a pass to violate civil rights laws.” That’s an eye-catching charge, and it’s an attention-getting campaign. But can it actually work?
I spoke to an attorney who specializes in discrimination law, and he’s impressed with the case the ACLU is presenting — especially considering how difficult it can be to show gender discrimination in the entertainment industry, where the hiring criteria can be a bit more nebulous. But the anecdotal evidence (of executives specifically stating that they’re not considering women for certain shows and films) is key, and strong. And he tells me the evidence cited for a roughly proportionate hiring pool — based on the gender breakdowns of film programs and independent film festivals like Sundance — is persuasive.
So, where does it go from here? If the federal and stage agencies take up the complaints and pursue investigations (which, rest assured, would take a very long time), they can hold hearings, instigate compliance reviews (requiring proof of equal opportunities on the job), require conciliations (a mediated agreement, putting certain steps in place to prevent discrimination), and the like.
There’s precedent for the action — sort of. As The New York Times’ Cara Buckley notes, the EEOC and Justice Department investigated discrimination in Hollywood back in the 1960s, discovering that (surprise!) it was a problem. The Association of Motion Picture and Television Producers and several unions came to a settlement that included referrals for minorities and similar stopgaps which (surprise!) didn’t take. And that’s the thing to keep in mind about what the ACLU’s doing here, bold and welcome as it may be; at the end of the day, it’s still up to Hollywood to fix the problem, and we all know how well that usually goes.
But there’s also another, and possibly more effective, outcome. If the investigation yields evidence of specific discrimination from a studio or studios that prove to be especially egregious offenders, well, then we could be talking about enforceable consent and injunctive relief and (here we go) damages. That hits ‘em in the pocketbook; that’s where it counts.
“I can see a lot of ways that concrete steps can be adopted, and they don’t necessarily involve litigation,” Migdal told me. “We’re many steps from that.” And, as she notes, when it’s a question of systemic bias, a few slaps on the wrist will only go so far. It’s a tough problem, and solutions are difficult to puzzle out. But this is a start.