Weinstein Scandal Should Affect The Outcome Of The EEOC Hollywood Probe (THR Guest Column)

This article was originally published as a guest column in The Hollywood Reporter on October 12, 2017.

Feature film writer/director Maria Giese, after convincing the ACLU to take on her cause, in 2015 instigated the EEOC’s industry-wide investigation into discrimination against women directors, which, according to reports, has led to current settlement talks with all six major studios.

The allegations, ranging from sexual harassment to rape, aimed at Harvey Weinstein are just a mere microcosm of a lawless industry rife with abuses against women ranging from sexual harassment to employment discrimination, but they may have tipped the scale by producing the watershed moment those of us who have been battling Hollywood gender inequality have been hoping for.

Starting in October 2015, Hollywood has been getting raked over the coals by the Equal Employment Opportunity Commission (EEOC) as it probes discrimination against women directors. Some reports say all six major studios are currently in settlement talks with the federal government. If so, these talks will soon result in either an agreement to remedy the problem or continuing legal action that could make its way to the Supreme Court. The Weinstein scandal is sure to have some impact on the outcome of this historic case.

The significance of this investigation is profound because at the heart of it is a civil rights argument about just who tells the stories that make up our cultural narrative. Weinstein is a giant among leaders in an industry that creates our nation’s most culturally influential global export, yet in his 35-year career he has hired women to direct only nine films out of his nearly 300 features — that’s less than 3 percent of female hires. Weinstein’s sexual abuses against women may come to pale in comparison to his violations against women’s employment rights.

If women cannot participate equally in our nation’s storytelling that is tantamount to the silencing and censoring of half the population. Hollywood has been shown to be the worst violator of equal opportunity law of any industry in the nation. Surprisingly, unlike the coal mining industry, it has also been left to self-regulate and has faced scant federal oversight. Executives like Weinstein have been able to do business however they want, even if it means illegal discrimination and demands for sexual favors in exchange for jobs.

Unfortunately for women, this has long seemed an impossible battle to fight. Hollywood’s business structure functions on a system of personal relationships in which reciprocity weighs heavily. In this male-dominated industry most women have little to give in return for employment opportunities, so they are often left either sexually compromised or out of a job. Yet if you speak out in Hollywood, if you litigate the discrimination or abuses you experience, you’d better be ready to give up your career — you’ll be blacklisted.

The Civil Rights Act of 1964, Title VII was set in place to protect all Americans’ right to equal employment opportunity, but it is effectively unenforceable in Hollywood for exactly the same reason that women have to put up with guys like Harvey — if you can’t get hired just because you are female, what can you do about it? You can file a complaint at the EEOC based on Title VII, but again that means litigation and getting blacklisted — and you’re out. It’s checkmate everywhere you turn. The evidence is not hiding: Women graduate from film schools 50/50 with men, yet they direct only 4 percent of studio features — which come to think of it, is slightly better odds than Harvey Weinstein’s record indicates.

The bottom line is, if a woman cannot file an individual discrimination lawsuit in this industry without losing the career she is pursuing, it means that law does not work. It’s not a useable law. And in the more than five decades since Title VII was introduced into law, the EEOC has not been able to make Hollywood comply with it. That means the law is also not enforceable on a broad industry-wide basis either. Very simply, until there is effective federal oversight and regulation in Hollywood, this lawless swamp will continue to abuse and keep women shut out, just as it has for decades.

The current legal action by the EEOC could change everything, however. Our federal government could step in at long last find ways to make Title VII enforceable in America’s dream machine. Our state and federal legislators could consider increasing the scope and utility of the FCC to mandate gender-equal hiring, and then there are dozens of other possibilities such as the seven strategic remedies recommended at the recent 2017 Women’s Media Summit, which in September published a Media White Paper in an attempt to solve this problem once and for all.

The EEOC is our nation’s most powerful body protecting Americans’ civil rights — and its ongoing inquiry has apparently already sent tremors through Hollywood. In 2016, Weinstein — who almost never hired a female director — suddenly pledged $5 million to a USC scholarship fund for women directors, just months after the 2015 EEOC investigation hit the news. Surely this indicates at least a certain sense of vulnerability in the industry.

Inside industry remedies are not going to solve the problem. Diversity efforts in unions run by a dominant male membership also competing for the same jobs, like those in the Directors Guild of America, do not embody the necessary impartiality to enforce fair hiring practices. Well-meaning suggestions for collegial industry-insider solutions made by A-listers won’t make a dent. A federal mandate for 50/50 gender hiring on the screen and behind the scenes would certainly reduce sexual harassment cases in Hollywood. That sounds fair considering women are half the population.

The Wild West needs a sheriff and needs one now. And our industry can’t fight it off much longer — thanks to the internet and social media, women have so much more access, and speaking out has become safer, even fashionable. Blacklisting won’t be possible any more. The tsunami of equality and democratization of our entertainment media is washing over Southern California. Nothing can stop it. Wouldn’t it be poetic justice if misogynistic Weinstein becomes the fulcrum upon which gender equity in Hollywood finally pivots?