As the New Year arrives, the film and television industry should be bracing for one of the biggest legal challenges it’s faced in decades — one that could affect the way every studio, network and production company does business for years to come.

DL_LookAheadThat challenge is coming from the federal government’s Equal Employment Opportunity Commission, which is expected to come down hard on the industry’s hiring practices once it concludes a sweeping investigation into the underemployment of female film and TV directors. The employment data is dreadful, and the legal, financial, and public relations implications of a possible class action lawsuit are staggering.

If the EEOC sues the industry – and there’s a good chance it will – it’s going to be one of the biggest class action cases ever to hit Hollywood. Many studio and network heads are going to have a lot of explaining to do – not only to the government, but to their shareholders.

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To get some idea of what it could cost the companies, Morgan Stanley, the giant investment banking firm, settled a sex discrimination suit with the EEOC in 2004 for $54 million – and that case only involved about 100 women. A class action suit against Hollywood could involve many more times that number of plaintiffs, and much more to settle. There are about 1,300 women who are director members of the DGA, and each could potentially be included in the class of plaintiffs. (Women make up 14% of all DGA directors, and 23% of the DGA’s 16,200 total membership.)

To meet this challenge, industry executives appear to have but two choices: 1) They can immediately start hiring more women directors, which can be done with a simple four-word memo to producers: “Hire More Women Directors!” (the exclamation point is optional but recommended); or 2) They can cling to the status quo and face the consequences in court.

The first option may give a few of the more nimble companies an advantage if they act quickly, because, like being chased by a bear in the woods, they don’t have to outrun the government, they just have to outrun each other. The first companies to write that memo (with or without the exclamation point) might be able to get up a tree unscathed while the others get mauled.

Image (4) 2013-box-office-frozen__131231024550-275x407.jpg for post 725126But they’ll have to start running fast, and Disney and Universal will have to run the fastest because they have the longest way to go. A recent DGA report found that those two studios hadn’t hired a single female to direct any of their combined 53 live-action films in 2013 and 2014. (That’s not counting Disney’s Frozen, the animated hit that was co-directed by a woman.) And Sony Pictures wasn’t much better, with only 2% of its films being directed by women. None of the other major studios had more than 6%.

Producers of scripted TV shows employ women directors 2 ½ -times more often than producers of live-action feature films (16% compared to 6.4%), and could make a case that they are at least trying. A DGA report found that women accounted for more than 40% of the directors on 57 network and cable shows in 2014 and 2015. But another 27 shows didn’t have any female directors at all.

If all else fails – and it probably will – the studios and networks can always resort to blame-shifting. The studios can say that they don’t hire directors; that they’re hired by the producers. The producers can say that they wanted to hire a woman, but there weren’t any on the studio’s approved-list. The networks can say that they don’t hire directors; that they’re hired by the production companies. And they can all blame the talent agencies, which package the deals.

Should the companies choose the second option – to battle it out in court – their best bet may be to hire a legion of lawyers to argue that the government has no right at all to tell them who to hire, any more than the government can tell Random House to hire more female authors, or LACMA to hang more pictures by women painters on its walls. Hollywood, after all, doesn’t make widgets; it creates artistic expression, and under the First Amendment, the government has no role in dictating to the arts.

Joe McCarthyHollywood has long been an easy target for headline-grabbing government meddlers, whether they be self-righteous censors trying to impose their morals on filmmakers, or blacklisting crusaders seeking to root out suspected communists. And because of that long and sordid history of government intrusion, Hollywood and the public should be wary of all attempts by the government to control the way films and TV shows are made, and who makes them.

But Hollywood is not above the law, either. And the law – Title VII of the 1964 Civil Rights Act – prohibits discrimination against women in the workplace, even in businesses historically protected by the First Amendment such as newspapers, music publishers, movie companies and TV networks.

In 2000, CBS paid $8 million to settle an EEOC suit that accused the network of subjecting some 200 female technicians to a pattern and practice of discrimination in regard to salary, overtime, promotions, and training. In 2009, Crick Pictures and Mandate Pictures paid $75,000 to settle an EEOC suit that accused them of refusing to hire an extras casting assistant on the film Stranger Than Fiction after they learned that she was pregnant. In 2012, the Hal Leonard Publishing Co., a music sheet publishing company in Minnesota, paid $150,000 to settle a sexual harassment charge brought by the EEOC.

But film and TV directors are not technicians, or casting assistants, or office workers. They are artists, and there has been no precedent for the EEOC bringing a case involving discrimination against artists. It’s brought cases involving a Saks 5th Avenue makeup artist, a Dallas striptease artist, and even a Subway sandwich artist, but never a case against employers of artistic creators.

There have, however, been private civil suits in this area. Earlier this year, an assistant director on The Big Bang Theory sued Warner Bros. for age discrimination, and a former actress on The Young And The Restless sued CBS for refusing to rehire her, allegedly in retaliation for her advocacy for greater diversity on the show. And in 2010, the TV networks and talent agencies agreed to pay a whopping $70 million to settle a class action ageism suit brought by hundreds of older television writers.

But these cases didn’t involve the government telling industry employers who to hire, and if the EEOC sues Hollywood over the underemployment of women directors, it will be entering uncharted territory.

DGA Gender report graphic number of filmsIndustry lawyers might even try the Hail Mary of all gender arguments by asserting that the terrible employment numbers are not the result of discriminatory hiring practices at all, but rather, are the result of some sort of natural selection in which men and women naturally gravitate to different professions. After all, the archeological record suggests that in prehistoric times, the vast majority of hunters were men, and that the vast majority of gatherers were women. Maybe something like that is happening here in Hollywood today. Perhaps fewer women just don’t see movie directing as a career goal. After all, not everyone wants to direct. Maybe it’s as simple as that.

Maybe something like that explains why, according to the U.S. Bureau of Labor Statistics, only 7.4% of all coal miners in America are females, and why only 2.8% are loggers, and why only 8.9% are construction workers, and why only 20% are auto dealers. Maybe that explains why only 20.4% of couriers and messengers are women, and why only 14.3% are car washers; only 12.5% are ship and boat builders; only 8.4% are landscapers, and only 25.4% work in computer systems design and related services. And maybe that explains why only 16.1% of the petroleum refining workforce are women, and why only 17.8% are employed in tire manufacturing, and why only 24.1% are barbers, and why 93.8% of beauticians are women. And maybe something like that explains why women make up less than 4% of the membership of the American Society of Cinematographers. Or maybe not.
http://deadline.com/2015/09/american-society-of-cinematographers-asc-women-members-1201546540/

But it probably doesn’t explain why the studios have, for decades, employed virtually no women as voice-over artists on their movie trailers; or why hardly any women are employed as voice-over artists on promos for the major networks’ primetime TV shows. The almost total lack of women in those jobs suggest that the studios and networks have a long way to go towards making even easy changes to increase equal opportunities for women.
http://deadline.com/2015/12/voiceover-industry-gender-bias-film-tv-promos-1201647993/

In the end, it may not take a government lawsuit to settle the issue. Before it sues, the EEOC prefers to reconcile – to help industries come up with a plan to remedy their discriminatory hiring practices. This is especially true when the problem is seen as systemic, industrywide and protracted.

In recent years, the EEOC has been focusing more of its attention on systemic cases that involve patterns or practices of discrimination that have a broad impact on an industry or a group of employees. And there is good reason to believe that the EEOC is looking at the underemployment of women directors as a systemic problem that’s going to require an industrywide solution: letters the EEOC sent to women directors seeking their input came from the Systemic Supervisor of the Commission’s San Diego office.

“When the agency makes a finding of systemic discrimination and efforts to secure voluntary compliance fail, the agency may choose to file suit to enforce the law,” the EEOC said last month in its annual Performance and Accountability Report.

In fiscal year 2015, the Commission filed 16 systemic lawsuits, obtaining $65.3 million in relief for charging parties for litigation, and another $356 million in relief for victims of workplace discrimination in the private sector, secured from employers through the agency’s mediation, conciliation, and other administrative enforcement efforts.

The companies’ only other hope is that the government bear will get bored and just go away, as it did 30 years ago when the EEOC last investigated Hollywood’s hiring practices. But those were different times. Ronald Reagan was president, and the chairman of the EEOC was Clarence Thomas. After a year-long investigation, Thomas, an outspoken opponent of Affirmative Action, locked the findings in a desk drawer and threw away the key. Then he threw away the desk. Nothing ever came of it, and the bear went into hibernation for the next 30 years.

But today there’s an African American president, possibly to be succeeded by the first woman president, and the bear is once again poking its nose under Hollywood’s tent. Clarence Thomas now sits on the U.S. Supreme Court, and his replacement, EEOC chair Jenny Yang, seems intent on fulfilling the EEOC’s stated mission: “To stop and remedy unlawful employment discrimination.”

“At EEOC, we view this as a critical time to lead the country in identifying persistent barriers to opportunity as well as constructive solutions to address our most stubborn and difficult workplace challenges,” Yang wrote last month in the annual report of the EEOC, which this year is celebrating its 50th anniversary. “Indeed, EEOC’s role remains as vital today as it was 50 years ago: To eradicate discrimination in the workplace and promote opportunity for all through enforcement, voluntary resolutions, public education, and outreach.”

Under Yang’s tenure, the EEOC has sought to do so in big cases that do the most good – and generate the most publicity. So where better to make a big splashy case than in Hollywood? The headlines almost write themselves: “Lights! Camera! Affirmative Action!”