As an entertainment litigator for the past thirty years, I’ve seen firsthand the systematic exclusion of women from leadership roles in Hollywood. That is not to say that no women break through the invisible barriers. But the statistics are depressing. Women now make up approximately 46 percent of the U.S. workforce. (United States Department of Labor, Labor Force by Sex, 2014 and Projected 2022) They attain educational degrees at similar rates to men. (United States Department of Labor, Distribution of the Civilian, Noninstitutional Population by Sex and Education Attainment, 2014 Annual Averages) However, despite these advances, women continue to make up only a fraction of the Hollywood workforce. For example, of the top 100 films of 2014, women comprised only 1.9 percent of directors, 11.2 percent of writers, and 18.9 percent of producers. (Stacy L. Smith et al., Inequality in 700 Popular Films: Examining Portrayals of Gender, Race, & LGBT Status from 2007-2014, University of Southern California Annenberg School for Communications & Journalism, at 2.) Women are also consistently paid less than men in Hollywood. (New York Film Academy Special Report, “Gender Inequality in Film” of 2013, Nelson Granados, “How Hollywood Women Will Benefit From California’s New Fair Pay Act,” Forbes Media & Entertainment, October 6, 2015) Unfortunately, this pattern of exclusion has persisted for decades with little change.

Beginning in the 1960’s, federal and state agencies investigated and determined that studios engaged in discrimination against women. (Behind the Scene: Equal Employment Opportunity in the Motion Picture Industry, California Advisory Committee to the U.S. Commission on Civil Rights, September 19, 1978) Despite these findings, the agencies were either unable or unwilling to mandate change. Then, in 1983, the Directors Guild of American (DGA) initiated a class-action lawsuit on behalf of its women members against studios for discriminatory hiring practices. (Directors Guild of America, Inc. v. Warner Bros., Inc., 1985 U.S. Dist. LEXIS 16325 (C.D. Cal. Aug. 30, 1985)(The court also denied the plaintiffs’ motion for class certification).) The DGA, however, was dismissed from the lawsuit because the DGA itself was implicated as a perpetuator of discrimination. 

The plight of women directors is a case in point. In the 1980s, the DGA and other industry unions entered into diversity agreements, which required those who employed directors to engage in “good faith” efforts to increase the number of working women. (Melissa Goodman et al., American Civil Liberties Union of Southern California’s Letter to the Department of Fair Employment and Housing, dated May 12, 2015, at 11, FN 58.) However, as the ACLU of Southern California recently revealed, “[t]hese industry agreements have not proved effective in appreciably increasing the number of women directors who actually get work…”  Prompted by the ACLU’s written request, the EEOC (Equal Employment Opportunity Commission) recently began investigating the hiring practices of film and television directors. It has reignited dialogue over the causes of and solutions for longstanding disparities. 

With women making up roughly half of the workforce and the plethora of women directors graduating from the same programs as their male counterparts, the traditional explanation that women “lack the ambition or competence to direct the larger, commercial” films, (Stacy L. Smith et al., Exploring the Careers of Female Directors: Phase III, Female Filmmakers Initiative, Co-Founded by Sundance Institute and Women in Film, Los Angeles, at 7, 24 (“When asked about the qualities of a successful narrative director, industry experts named twice as many traditionally masculine characteristics as feminine. This tendency to ‘think director, think male’ is a form of occupational stereotyping that may bias who is considered for open directing assignments…. The chief impediment that emerged from the qualitative findings is that a view of a gendered marketplace limits the perception of women’s career potential. Industry leaders may hold an implicit association between females and less commercial stories as well as tacitly associate the role of director with a masculine enterprise. Holding these beliefs—even subconsciously—may set up an impenetrable obstacle for many female directors.”).) simply fails to explain the huge disparity in the statistics.  It seems an unavoidable conclusion that gender bias, whether intentional or subconscious, has created a systematic exclusion of women from the most prestigious directing jobs in Hollywood.       

So what can be done to break this cycle of bias in Hollywood? Voluntary agreements have proven ineffective. Financial penalties are also inadequate because studios will simply pay fines as a cost of doing business. Change will only come with state and federal intervention on a long term basis. Passing of the California Fair Pay Act is a good start. The new law will require employers to pay women the same as men for “substantially similar work” across entire business enterprises, regardless of job titles and office locations. (California Legislative Information, SB-358 Conditions of Employment: Gender Wage Differential, Patrick McGreevy et al., “California now has one of the toughest equal pay laws in the country,” Los Angeles Times, October 6, 2015) Prior legislation only required equal pay for “equal work” performed in the same establishment.

The new law expands protections for women in every industry, and could generate change in Hollywood.  The now infamous Sony hacks revealed that Jennifer Lawrence was paid less than her male co-stars for their work in “American Hustle.” (Maane Khatchatouria, “Jennifer Lawrence Blasts Gender Pay Inequity in Hollywood: ‘F-That”, October 13, 2015). Under the new law, studios could theoretically be compelled to pay actors doing “substantially similar work” the same or face costly and public litigation. (Daniel Miller et. al., “With new equal-pay act, will Jennifer Lawrence get paid like Bradley Cooper?,” Los Angeles Times, October 8, 2015)  However, studios may still be able to argue around the law given the artistic range of services required in the entertainment field, as well as myriad other technicalities imbedded in the new rules.    

That’s why I believe the industry needs long-term oversight by a central authority empowered to recommend and enforce inclusive hiring practices, what I like to call a “film gender czar.”  Similar to the EEOC, the czar could be established through federal Congressional action.  It should be given authority not only to investigate the existence and cause of discrimination, but also to recommend rules and regulations for adoption into law. While it is hard to say in a vacuum precisely what kinds of solutions might be warranted, long-term detailed study and oversight can go a long way toward finding both the causes and varied solutions to the complex and deep-seated problem of gender inequality in Hollywood. 

In addition to the czar, women who have achieved positions of power need to make deliberate decisions to effectuate positive change for women in Hollywood and engage in mentorship.  For instance, Amy Pascal, former co-chairman of Sony Pictures Entertainment, chose not to proactively pay Lawrence the same as her male co-stars for “American Hustle.” (Matthew Jacobs, “Amy Pascal Comments on Jennifer Lawrence’s Pay Disparity,” The Huffington Post, February 12, 2015). Women in power, like Pascal, need to actively generate change, not perpetuate longstanding inequalities by staying silent.   

In my work, I have committed to mentoring young women who face similar challenges in the male-dominated field of law. Among other things, I created an all-women marketing group so that we can help each other face the special challenges women lawyers have in originating business. Strong women are often stereotyped as too “masculine” or “confrontational,” yet who wants a weak or submissive lawyer? Change requires women and men to courageously step forward even in the face of criticism and ridicule because the system will not correct itself.  With the passage of California’s Fair Pay Act, the recent EEOC investigation, and renewed public awareness, the time for change is now.