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Kalpana Kotagal L’05 discusses Hollywood’s ‘inclusion rider’

July 02, 2018

“I have two words to leave with you tonight, ladies and gentlemen: inclusion rider.”

The two word equity clause, highlighted by Oscar-winning actress Frances McDormand in her 2018 Best Actress acceptance speech at the Academy Awards, was unknown to many and became popular overnight. But for Penn Law’s Kalpana Kotagal L’05, the concept to bring diversity to Hollywood was something she had been working for years. 

Inclusion rider, a contract provision that actors, directors, or producers can use to negotiate for more diverse and inclusive hiring on set, was developed by Stacy Smith from the Annenberg Inclusion Initiative and drafted with Kotagal and Fanshen Cox DiGiovanni of Pearl Street Films.

Even during law school, Kotagal was dedicated to advocating civil rights. At Penn Law, Kotagal served as law clerk in the Chambers of the Honorable J. Curtis Joyner, an Articles Editor of the University of Pennsylvania Law Review, and was a James Wilson Fellow. After graduation in 2005, she served as a law clerk to the Honorable Betty Binns Fletcher of United States Court of Appeals for the Ninth Circuit. 

Now, a Cohen Milstein partner and a member of the firm’s Civil Rights Employment practice group, Kotagal works to address issues of employment and civil rights law, class actions, mandatory arbitration, and diversity in the workplace.

Penn Law sat down with Kotagal to learn more about her work on the ‘inclusion rider’ contractual clause, Academy Award winner Frances McDormand’s promotion of the concept during the end of her acceptance speech at the 90th annual Academy Awards, and how she was asleep when her legal language became national news.

 

Transcript:

Kalpana Kotagal L’05: Hollywood has had tremendous problems with diversity for decades.

Frances McDormand: We all have stories to tell and projects we need financed; don’t talk to us about it at the parties tonight, invite us into your office in a couple days, or you can come to ours, whichever suits you best, and we’ll tell you all about them. I have two words to leave with you tonight, ladies and gentlemen, “inclusion rider.”

Kotagal: The inclusion rider takes concepts, best practices, from hiring and builds them into a contract that somebody like an a-lister in Hollywood could attach to their contract to star in a particular film. The idea being, somebody with bargaining power can bring to the contract their very best practices and ensure that the hiring for that film reflects greater diversity. If you look at… Woody Allen’s movies in New York, Woody Allen’s movies do not reflect the diversity, true racial and ethnic diversity, of New York, and that’s what we wanted to create. We wanted the world in which these movies take place to really reflect the world we live in now.

It feels inevitable, it certainly came at a particular moment that was ready for it and I think [films like] Hidden Figures, Black Panther, there are all of a sudden a handful of these movies that really show us the power of other narratives, but the inclusion rider itself was the product of years of work. My start on the project was back in 2016, and my collaborators, and Fanshen, and Stacy had been talking about it even before that. This is one piece of a broader puzzle about how we fix an industry that’s gone wrong in so many ways.

So, we never thought about our approach to it as being a very high-profile approach, we always thought that the way it would move forward would be with actors but primarily with their lawyers and their agents recognizing the value of the idea. So, it was much more an inside baseball strategy, and then Frances McDormand heard about it from her agent, who had heard about it from my collaborator Stacy Smith, and then, “bam,” Oscar Sunday, I’d gone to sleep and woke up the next morning to an unbelievable response from the public and in the press.

Transcript edited for length.