Women Directors: A New Legal Strategy For Parity

By Maria Giese

Everyone knows that it is very hard to prove a discrimination case unless one has “smoking gun evidence”—e-mails, eyewitness accounts, and written or otherwise recorded proof. It’s especially difficult for women directors to pinpoint specific actions that may have resulted in their non-employment based on gender discrimination.  That’s one reason so few women directors in Hollywood consider legal action, even though it is widely known that discrimination in the American entertainment industry is rampant.

Further complicating the matter is the fact that discrimination against women directors is not just an individual issue; it is an industry-wide problem.  Hollywood has some of the worst numbers of female employment among all industries in the United States.  Unfortunately, until now, it has been considered virtually impossible to prove discrimination against women directors, targeting not just individual production companies, but whole studios and networks—indeed, the entire American entertainment industry.

What could qualify as the criteria for an industry-wide discrimination lawsuit? And how could women quantify evidence of discrimination?  The questions are complex and the answers are even more complicated, but perhaps there is another way…

Today, women may finally have found a viable solution to taking legal action against the entertainment industry at large in an effort to create lawful gender parity among film, television, and new media directors in Hollywood.

THE CONCEPT:

Instead of attempting to prove discrimination against women directors, women could assume the opposite theory—THE NULL HYPOTHESIS—that there is no discrimination, and that women are simply being hired (or not hired) based on random fluctuations. If this is so, then the random ratio of male to female employed directors should reflect the ratio in the pool of qualified directors.

Women directors would make two calculations to compare: 1) what a random distribution of directing jobs within that pool should be, and 2) the actual number of employed women directors.  They would then graph the numerical results on a bell-curve, and if the actual number of employed women directors falls two standard deviations (or more) from what the random results are, they will have proven the inference of discrimination and the court can shift the burden of proof on to those production entities that hire directors.

In this way, the burden of proof is shifted to Hollywood production entities to explain how it could be possible that the numbers are so skewed if they are not discriminating against women directors.  Hollywood production companies, studios, and U.S. media networks will be left to figure out how to justify or solve the problem they created.

Let’s look at the Null Hypothesis in action:

WOMAN DIRECTOR v. STUDIO EXECUTIVE

A Short Conversation

DIRECTOR:  Hollywood producers discriminate against women directors. You are in violation of the Civil rights Act of 1964, Title VII.

EXEC:  I do not discriminate against women directors; I hire qualified women whenever I can.

DIRECTOR:  I am qualified, but I can’t get a directing job.  I think Hollywood is gender-biased against women.

EXEC: Not so!  I can prove that there are simply not very many women in the pool of qualified directors from which to hire.

DIRECTOR: Can you define the pool of qualified directors?

EXEC:  Simple! I would say the pool is made up of about 7,500 male DGA director members male directors and 1,160 women directors.  That’s about 87% males to 13% females.  And we hire between 12% and 14% women directors on episodic TV shows.

DIRECTOR: Depending on whose stats you trust– DGA or Lauzen.

EXEC:  Still, I’d say we’re doing a pretty good a job.

DIRECTOR:  Not really. The only way one can become a DGA member is by getting hired to direct professionally. The female director membership of the DGA is disproportionately low precisely because women suffer from discrimination in the entertainment industry—women are not getting hired.  The number of female director members in the Guild can only move up if you hire more women directors.

EXEC:  You mean hire women from outside the Guild.

DIRECTOR: Yes.  After all, you don’t hire male directors exclusively from the Guild, you hire them from a broader pool. You cull directors from cast and crew—producers, writers, editors, script supervisors and actors. They are frequently hired to direct episodes.

EXEC: That’s true.  So, you are saying the pool of qualified directors is larger than the director membership of the DGA?

DIRECTOR:  I think it would be accurate to say that the actual pool of qualified directors includes male and female film school graduates (50/50), DGA director members (87/13), and TV writers, producers, and cast and crew members (60/40).  That would move the total average ratio of males to females within the pool of qualified directors to 66/34, or about 65/35.

EXEC: You think we should hire 65% male directors and 35% female directors?

DIRECTOR: Well, I’d like to see you hire men and women 50/50, but certainly women should currently expect to comprise at least 35% of the directing workforce– higher, if you include female DGA Assistant Director members in the pool.

EXEC: What are the numbers now?

DIRECTOR: As you said, women directors comprise only about 12% of the directors on episodic television and under 5% of the directors of feature films.

EXEC: I guess that is pretty low.

DIRECTOR: The DGA leadership calls those numbers “dismal” and even “despicable.”

EXEC: But the numbers themselves do not prove that we producers are in violation of United States equal employment laws– or Title VII.

DIRECTOR: I’m afraid they do.

EXEC: Why? Considering the fact that women directors make up 13.4% of the director membership of the DGA, and we hire 14% women directors in episodic TV, you cannot say that we producers are not fulfilling our agreements with the DGA to make “Good Faith Efforts” to hire more women.

DIRECTOR: I’m surprised you even know those agreements exist.  You’re doing better than most producers already.

EXEC: Of course I know: the DGA Basic Agreement, Article 15, and the FLTTA, Article 19.  We’re supposed to make “Good Faith Efforts” to hire more women and ethnic minorities,

DIRECTOR: It’s too bad you don’t have to make “Best Efforts,” but I suppose that term is too legally binding– you might actually have to hire more women!

EXEC: Look, we also have to make subjective, merit-based decisions about the directors we hire.  We cannot do our best as producers and succumb to affirmative action-style mandates to hire more women directors.

DIRECTOR: Not if you don’t think women directors are just as competent  and talented as their male counterparts.  It reminds me of the quote by the British art critic—Brian Sewell—from the The Sunday Times in 2010: “I don’t dislike female artists. I just don’t think they should be artists.” Misogyny is real.

EXEC:  I think we all know Brian Sewell is an ass.  I’m not a misogynist, but I certainly want to know that the directors I hire will not only do the job, but are the best in the business.  Most women directors simply haven’t done much to judge them by.

DIRECTOR: Some producer took a chance on every single guy who is now “the best in the business.”  I guess it’s simply a matter of choice: what sort of society do you want to live in?  One of equal opportunity?  Or one that just pays lip service to equal opportunity?

EXEC:  We all agree about the importance of equity in America, but employment equality takes time.

DIRECTOR:  Yes, “The Geena Davis Institute on Gender in Media” ran the stats on that and found that, at the rate we’re going, women will achieve equality in the film & TV industry in more than 500 years.  That’s a bit too long for most of us to wait.

EXEC: I doubt it will take that long.

DIRECTOR: You can doubt all you want.  In the meantime, you are required to abide by Title VII called for by President John F. Kennedy in his civil rights speech of June 11, 1963.  In this speech, he asked for legislation to abolish employment discrimination.  Martin Luther King predicted that this legislation would “…take the Nation a long, long way toward the realization of the ideals of freedom and justice for all people.” On July 2, 1964, seven months after the assassination of Kennedy, the legislation became law.

EXEC: It did result in greater justice.  And the controversial affirmative action programs initiated over 50 years ago have arguably borne out fairly good results for ethnic minorities.

DIRECTOR:  Ethnic minority males.  And women are not minorities, we are a majority.  We make up 51% of the general population in the U.S.

EXEC: You want 50% women directors?

DIRECTOR:  That would be reasonable in a society that truly honors equity, but Title VII does not require that the employment pool reflect the general population. It requires that employment ratios reflect the available pool of qualified directors.

EXEC:  My best guess is that any discrimination you perceive is due to the disparity of women director members in the DGA.

DIRECTOR:  Are you really going to point your finger at the DGA?

EXEC:  Well, in 1985 the DGA was disqualified from representing a class-action lawsuit it launched on behalf of women and ethnic minorities because the judge—a woman—said that DGA itself has policies that discriminate against those same groups.

DIRECTOR:  The DGA has work to do, but excuses like that won’t help you in court.

EXEC: You think I am guilty of discrimination? Prove it!

DIRECTOR: I don’t have to.  I can use the “Null Hypothesis” and let the court shift the burden of proof onto you.  You will have to prove you don’t discriminate against women directors.

EXEC: Null… What?  Is that new?

DIRECTOR: It’s not new, but it’s never been used specifically to fight discrimination against women directors in Hollywood on an industry-wide basis.  In that way, it’s revolutionary.

EXEC: What’s it mean?

DIRECTOR: The Null Hypothesis states that the differences in a sample are random or accidental. Therefore, if I can demonstrate that it is numerically impossible that discrimination against women directors is accidental, then it means producers are willfully discriminating against them.  It will become your obligation to prove it is not so.

EXEC: Is there a legal precedent for this?

DIRECTOR: Yes, courts have shifted the burden of proof in discrimination cases based on that kind of statistical evidence.

EXEC: Explain.

DIRECTOR: Courts consider something called a ”binomial distribution” to determine if there is gross disparity.

EXEC: I don’t get it.

DIRECTOR: Okay, imagine you take a jar and fill it will red and blue marbles to represent male and female directors—say 6,500 red marbles for men and 3,500 blue marbles for women.  Then you randomly select the marbles from the jar to fill, say, 3,100 episodic TV directing jobs for that year.

EXEC: Is that the number of episodic TV shows that get made in Hollywood each year?  3,100?

DIRECTOR:  That’s right.  So, the results of your random selection should approximate the 65/35 ratio. And if you graphed it…

EXEC: …it would appear as a bell-curve.

DIRECTOR: Exactly.  The bell-curve represents the binomial distribution of male and female directors.  So, if the court begins with the “null hypothesis” (that the directors were randomly selected) it would anticipate seeing a percentage of women directors that reflects the proportion of women in the ”jar” of qualified women directors.

EXEC:  You mean around 35% women?

DIRECTOR:  Right.  So, if employers actually did select their employees without considering gender, the distribution of the TV directing workforce should be near the null hypothesis.  On the bell curve graph, the larger the “standard deviation,” (the gap between the null hypothesis and the actual workforce)—the more likely it is that producers are selecting their directors in a biased way.

EXEC:  And that’s…

DIRECTOR: Against the law.

EXEC:  What would that mean for us— I mean, if we were found to be in violation?

DIRECTOR:  I don’t know.  Maybe a fine— like 50 million dollars?

EXEC: Industry-wide?

DIRECTOR: For one year.  And if producers, studios and networks don’t fix the problem, 50 million dollars the next year, and the next year, and the next— until the problem is solved.

EXEC:  I guess it’s time to call the legal department.

DIRECTOR: You betcha!

****

Originally Published in 2012