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Read: The ACLU’s Letter to the EEOC Citing Employment Discrimination Against Women Directors

Read: The ACLU's Letter to the EEOC Citing Employment Discrimination Against Women Directors

Two weeks ago, the ACLU sent letters to three government agencies requesting an investigation into the gender-based discrimination against women directors in the film and TV industries. The following letter to the Los Angeles branch of the Equal Employment Opportunity Commission outlines the patterns and practices of institutional bias and inequity pervasive in Hollywood, as well as how the EEOC can help remedy the situation.

In addition to these legal efforts, the ACLU Women’s Rights Project and the ACLU of Southern California is circulating a petition so that everyone can join the campaign to end employment discrimination against female filmmakers. “We believe that the failure to hire women directors and give them a fair opportunity to succeed in the field is a civil rights issue,” states the petition. “The systemic failure to hire women directors at all levels of the film and TV industry [is] in violation of state and federal civil rights laws.”

Sign the ACLU petition here and read the letter to the EEOC below. 

May
12, 2015

Anna Y. Park, Regional Attorney

Rosa Viramontes, Director

EEOC Los Angeles District Office

Loybal Federal Building

255 East Temple St., 4th Floor

Los Angeles, CA 90012

Dear Ms. Park and Ms. Viramontes,

We
write to call to your attention to the widespread exclusion of women directors
from employment in directing episodic television and feature films.  We request that the U.S. Equal Employment Opportunity
Commission (“EEOC” or “Commission”) develop and file Commissioner’s charges and
initiate an investigation into systemic failure to hire women directors in
violation of Title VII[i] at
all levels of the film and television industry.

A
large body of statistical evidence reveals dramatic disparities in the hiring
of women directors in film and television; women are effectively excluded from
directing big-budget studio films and seriously under-represented in television
directing.  The ACLU has interviewed or
collected information from 50 women directors.[ii]  We have learned that women are systematically
excluded from or underemployed in directing jobs as a result of:

·      
studios’, networks’, and producers’ intentional and
discriminatory failure to recruit, consider, and hire qualified women
directors;

·      
use of discriminatory recruiting and screening practices
that have the effect of shutting women out, such as word-of-mouth recruiting
and use of short lists on which women are under-represented;

·      
reliance on, and perpetuation of, sex stereotyping in hiring
and evaluation of women;

·      
ineffective programs within the industry to increase hiring
of women and people of color that do not lead to women getting directing jobs;

·      
lack of enforcement of internal industry agreements to
increase the hiring of women and people of color.

Published
statements by women directors bolster the statistics and anecdotal evidence we
have gathered that points to systemic discrimination. 

In
the 1960s and 1970s, the Commission took action to address employment
discrimination in Hollywood.  Despite these
efforts, gender disparities in hiring directors have become worse over
time.  Initiating Commissioner’s charges
to investigate and address a pattern or practice of discrimination against
women directors is necessary, well within the agency’s authority, and
consistent with the agency’s enforcement priorities.  The entertainment industry employs many
people and makes products that profoundly shape our culture and the perception
of women and girls.  Such statistically
severe gender bias in this important industry is a civil rights problem worthy
of the Commission’s serious renewed attention. 

Qualified
Women Directors Face a Systemic Pattern and Practice of Discrimination and
Exclusion from Directing Film and Television.

Women directors are subjected
to discriminatory practices, including recruiting practices that exclude them,
failure to hire qualified women directors based on overt sex stereotyping and
implicit bias, and the use of screening mechanisms that have the effect of
shutting women out.  The available
statistics paint a picture of stark disparities that are “a telltale sign of
purposeful discrimination.”[iii]  These “gross statistical disparities” are of
the magnitude that courts have held “alone may . . . constitute prima facie proof of a pattern or
practice of discrimination.”[iv] 

When it comes to film,
the large studios have virtually shut women out of directing big-budget movies
for years, and the problem is not improving with time: 

·      
Only 1.9% of directors of the top-grossing 100 films of 2013
and of 2014 were women.[v] 
Of the 1,300 top-grossing films from 2002-2014, only 4.1% of all
directors were women.[vi]

·      
In 2014, women were only 7%
of directors on the top 250 grossing films. 
This number is 2 percentage points lower than it was in 1998.[vii] 

Women
are also excluded from directing episodic television

·      
In an analysis of more than 220 television shows,
representing about 3500 total episodes, women were only 14% of directors in
2013-2014.[viii]  

In
an alarming number of cases, employers shut women out of television work
entirely:

·      
A whopping 70 television shows (31%) had no women directing even a single episode
in the 2013-2014 season.  20% of shows had women directing no more than 10% of
episodes.[ix] 

·      
In 2013-2014, more than 30% of networks (31 networks) had no
women directing any episodes in any of their shows.  The same is true at the production-company
level – approximately 31% of production companies (47 companies) had no women
directing a single episode in any of
their shows.[x]

These
statistics reveal what the Supreme Court has called “the inexorable zero” – a
figure, representing “the glaring absence” of women that is highly indicative
of systemic employment discrimination.[xi]  But even beyond “zero,” the numbers of women
in television directing are low.

·      
Only 13% of directors in 2013-14 in prime-time network TV
were women.[xii]  When combining network, cable, and Netflix,
women still comprised only 13% of directors.[xiii]

·      
In the 2013-2014 season, only ten shows had women directing
50% or more of episodes – an exceedingly rare phenomenon.[xiv] 

·      
For more than half of broadcast comedies and dramas, in an
assessment of more than 1000 television shows in 2011-2012, women directed 10%
or fewer episodes.[xv] 

The
employment opportunity outlook for women directors of color is even more
dire.

·      
From 2007–2012 the 500 top-grossing movies employed 565
directors – only 2 of whom were African-American women.[xvi] 

·      
Women of color directed only 2% (73 of 3,558) of episodes in
2013-14.[xvii]

Hiring
disparities in television start at the entry level.  A recent study of first-time directors over
five years revealed that only 18% of those given a chance to direct their first
episode are women.[xviii]  

These
statistics are even more concerning than they appear, because a problem
oft-cited by women directors is that only a small handful of women is hired
over and over again.  One landmark study
of the top 600 grossing films between 2007 and 2013 found only 22 unique female
directors of those films.[xix]  One filmmaker and director with nearly 30
television credits elaborated:  “Though
it is documented that 12% of episodic television is directed by women, when
credits are examined by name, this number does not seem to represent how many
different woman are directing, only the total number of episodes.  By name analysis, it appears as if only about
the same 15 to 20 women directors are hired again and again.”[xx] 

The
failure to hire women directors in film and television cannot be attributed to
a lack of qualified or interested women. 
Women are well represented in prominent film schools such as USC, NYU,
and UCLA; while hard numbers are hard to come by, estimates place the number of
women students focusing on directing as roughly equal to the number of men.[xxi]  As one woman who runs a program promoting
women’s films said, women have had “some equality in the film school area, but
once they get out of film school and finish their short films, that’s when
they’re reaching some barriers.”[xxii]  Despite substantial numbers of women in the
filmmaking pipeline, the perception remains strong among industry executives
and employers that there are “not enough” women directors and that women lack
ambition or interest in directing.[xxiii]

Women
who break in to the industry and get hired for their first job, or make a first
independent film, are systematically underemployed thereafter: they find it
harder to obtain steady employment compared to similarly qualified male
directors.  Women
do relatively better in lower-dollar sub-sectors, such as independent film and
documentary film: nearly a quarter of directors at Sundance independent film
festival have been women,[xxiv] and women direct about a third of
documentary films.[xxv]  Yet their success in these feeder sectors
does not translate into studio opportunities as it does for male directors;
women directed under 5% of box office hits from 2002 to 2014.[xxvi]  Even when their work
earns critical acclaim and festival awards, women report that their success
does not as easily parlay into additional work or studio jobs.  Women’s statements have been confirmed by
research demonstrating a 25% gap between the percentage of women directors at
the Sundance Film Festival (26.9%) in 2014 and the percentage of women
directors on the year’s top 100 films (under 1.9%).[xxvii]  Women report being treated as tokens[xxviii]
and being judged more harshly than their male peers. 

Women
Identified Numerous Barriers to Getting Hired.

Women Directors Face Overt Disparate Treatment and Sex
Stereotyping.

Overt
sexism remains a real, concrete barrier. 
When employers fail to recruit, consider, or hire for particular types
of projects based on stereotypes about women’s abilities, the traits a man or
woman typically has, or assumptions about the types of projects for which they
are best suited, these employers are engaging in sex discrimination in
violation of Title VII.[xxix]

It
is widely known that some employers do not hire women directors.  Women have publicly reported being told “we
don’t hire women,” or “we tried [hiring a woman] once.”[xxx] 
More than one award-winning film director reported
to us that she was told in a meeting that a particular showrunner “doesn’t hire
women.”  Another director said that
producers and studio executives repeatedly told her agent “not to send women”
for consideration for particular jobs.  A
third director was told by a network executive to avoid a show that was not
“woman friendly.”

Employers
steer and pigeonhole women to particular types of projects and exclude them
from others, based on sex stereotypes. 
Nearly every woman with whom we spoke had either experienced directly or
was aware of the widespread perception that women are better suited to and typically
only considered for projects that are “women-oriented,” such as romantic
comedies, women-centered shows, or, commercials for “girl” products.  This perception was recently confirmed in a
study interviewing industry executives and sales agents, nearly half of whom
stated that films directed by women were limited to particular genres and
market segments, but believed the more profitable market segments, such as
action and comic-book films, were male-driven and -created.[xxxi]  Women are often not considered or
passed over for films or TV shows in the action, superhero, and horror genres,
or that require special effects, in favor of men with less experience.  A report published by the Sundance Institute
and Women in Film’s Women Filmmakers Initiative described this bias, finding that half of decisionmakers
interviewed said some genres like action and horror “may not appeal” to women
directors.[xxxii] 

These
stereotypes affect women throughout their careers, even women who get the rare
chance to prove their ability to direct action and special effects.  One successful television director told us
that the only jobs offered to her were “stereotypically women’s films.”  Even after making a rare successful leap to
television and getting hired to work on two prominent action-oriented
television shows, people still told her agent that she wasn’t being considered
for action jobs because “she [couldn’t] really do action.”  Others reported being told, inaccurately,
that they lacked enough special effects experience.  Two commercial directors told us that they
only get work on “girls’” or “feminine” products and are not considered for
work on “boys’” or “men’s” products.  One
working director put it this way: 

“When it comes to who’s hiring. . . I think it starts with
‘we just feel more confident that the guys are going to be able to do this
stuff.’  I happen to be doing an episode
that’s all about cars.  They thought guys
would know more about cars, but I happen to know a lot about cars.  .  .  .  There
are these biases that you hear about and you feel.  I know half a dozen women directors that are
great with action and love it like I do, but they think you won’t be in there
and get that testosterone feel, or won’t be able to hit the male marketplace.”

Every
woman we interviewed who mentioned gender stereotyping pointed out that the
stereotypes only operate against women: plenty of men are hired to direct
romantic comedies and commercials for “feminine” products.

Implicit Bias Pervades the Hiring Process at Many Levels.

Unconscious
bias pervades the hiring process and continues once women are on set.  Illegal disparate treatment can occur not
only where an “employer consciously intended to base [its actions on an
employee’s gender]” but also where the employer “simply did so because of
unthinking stereotypes or bias.”[xxxiii]
 The risk of unconscious bias
discrimination is particularly high where employers use the kinds of highly
subjective hiring and evaluation practices or networking/relationship-based
hiring practices that predominate in the entertainment industry.[xxxiv]

Women
often reported to us the pervasive perception that hiring women directors is
viewed as more “risky” than hiring men; even men with less experience.  This perception is particularly harmful where
multiple decisionmakers must agree each time a director is hired, and each
decisionmaker is wary of hiring outside the standard (male) norm.  The former head of a major studio summed it
up this way:

“For a woman to direct a movie in Hollywood, she has to go
through so many layers of rejection by the powers that be – I suppose including
myself – that it is harder to get to that point.  So you can’t just create something.  And I think there is a whole unconscious
mountain.  .  .  I
think the whole system is geared for [women] to fail.”[xxxv]

As a longtime
producer recently said, “There’s a great deal of reticence giving a woman
[director] a chance.  And the statistics
support that fact.”[xxxvi]

Many
women reported that even after some initial success, they are not hired
consistently, their careers do not take off or stall quickly, and they are not
trusted with bigger-budget projects at the same rate as their male peers.  Research confirms that a significant percentage
of industry executives believe women “can’t handle” big films with large crews.[xxxvii]  In film, women who win prestigious awards at
film festivals for their independent work are nonetheless denied opportunities
to direct big-budget films (told they lack “experience”) that their male peers
are given.  We spoke with at least a
dozen women who won prestigious awards for their first films, but then their
careers immediately stalled, whereas their male colleagues who had won those
awards got big-budget film work or commercial work right away.  One working director explained to us:

“You have
meetings about potential projects where studio executives say things like ‘well,
it’s hard to have you direct it because it’s such a big budget film.  You don’t have the experience.’  Instead of seeing that I’ve done five feature
films.  But a guy can be hired off of one
feature film that’s low budget. . . .  Women
are ghettoized into doing these smaller films and then people think that’s all
we want to do.”

Another Oscar-nominated
woman who has had some success in the film world told us:

“After my film won multiple awards at the South by Southwest
film festival, one reviewer said, essentially, ‘[t]his is the kind of movie
that gets a director every studio knocking on her door.’  But the truth was, studios were not
knocking.  I was going into meetings . .
. .  Somehow I ended up for two years
interviewing for things and not getting them or being attached to something
that didn’t end up going to production.”

A number of other women
directors have spoken out publicly about this particular form
of discrimination.[xxxviii]  Both research and the anecdotal evidence we
gathered show serious gender disparities in opportunities, even for women whose
films debut at prestigious festivals.[xxxix] 

Women also have a more
difficult time finding film financing. 
As one director who won recognition for a film this year put
it: “women have to convince men to “trust [them] with [their] money.”[xl]  This form of discrimination results in women
being disproportionately represented in and pigeonholed into doing only
smaller, independent or documentary films.[xli] 
Women who do make independent films “are relegated to less financially
lucrative platforms” by distributors and are less likely to have their films
distributed by the Studio Specialty / Mini Major companies, which are associated
with the major studios and have the broadest reach.[xlii]  Researchers have documented “the fiscal cliff
women face as they move from independent to more commercial fare.”[xliii]

In
television, many women reported that when they are hired for directing work
they are treated as though they are filing the one slot begrudgingly reserved
for a woman, and that they consistently get fewer episodes and jobs overall than their equally qualified
male peers.  At least three women
reported that they believe they get only one episode a season on a show, where
often men get more, because showrunners, production companies and studios know
they should at least hire one woman because hiring none at all looks bad.  One successful woman director with nearly 60
television credits summed it up to us this way:

“If I go onto a series, there will be one job for a woman,
and they’ll feel like, oh, we filled our quota. 
One job out of 13 or 22.  And I’ll be the one woman.  And you’re competing for this one slot that
they feel they have to offer.  Yet, with
the guys, I hear, ‘oh, they’re never prepared.’ 
The crew says: ‘It’s such a relief to have you here.’  You turn around next season, and the guys
will be doing three episodes and you won’t be asked back.  And that’s what you live with all the time.”

One director with
nearly 50 television credits explained the phenomenon this way:

“Decisions [about hiring] are made by the
showrunner.  And the showrunner is not
always but most often a man, and they hire their friends.  Their friends, not surprisingly, are men.  .  .  .  And
so the networks and the studios will pressure these guys to hire a woman, and
they will hire one woman, because
they have to, or they’ll hire two women, out of 22 episodes, because they have
to, and then maybe they’ll hire one back. 
And then they’ll hire none.  There
are plenty of shows that I have been up for and had good meetings on, where I
don’t get hired and I think, ‘Why? I’m capable, I’m qualified, I did my
homework.  I check all the boxes – I can
work with actors.  I can work with
difficult people.  I can do action.  So what box is missing?’  There really isn’t one.  Then statistics come out and you see that
particular show hasn’t hired a woman. 
There’s only one conclusion.”

Another director
was told at a meeting for a television directing job, “We already hired a woman
this season.”  The statistics largely
support this perception.  As noted above,
the pool of women who get hired repeatedly for more than one or two episodes on
a show is quite small. 

Numerous
women reported that women are judged more harshly by employers, often getting
only one chance to succeed whereas their male peers may still find success
after some failure.  This is a difficult
barrier to overcome in an industry in which many more projects will fail than
succeed.  One successful TV director
said:  “You just have to do better, with less complaining.  And experience and survive three times as
much judgment” as male directors.  One
award-winning and Oscar-nominated director who has made multiple films and has
one TV credit noted:  “You can’t ask of every woman in the
profession to be such an outstanding pioneer that she just has to be 20 or 30 times better and never have a
failed movie, which is something she can’t control in the first place.  It’s unfair to ask women to be like J.K.
Rowling is in the writing world to have success.  Why can’t we be judged in the way the guys
are judged?”  Another director stated that “often women
will get a shot, but they won’t get a second shot.  Whereas men often will…. men often get a lot
more chances to ‘fail’ than women do.”[xliv] 

Practices Used in Hiring and Recruitment Have a
Discriminatory Effect on Women.

Ostensibly
neutral employment practices have the effect of keeping women out of the
workforce.  Title VII prohibits
“employment practice[s] that cause a disparate impact on the basis of … sex”
unless the employer can show that the practice is “job related for the position
in question and consistent with business necessity” and this necessity cannot
be accomplished by use of an alternative.[xlv]  The law thus bans “‘not only overt
discrimination but also practices that are fair in form, but discriminatory in
operation.’”[xlvi] 

One
such practice is employers’ widespread reliance upon “lists” of directors when
deciding whom to hire or seriously consider for directing jobs.  These lists, which are widely used in the
industry, disproportionately exclude women; in a recent study, industry
executives and agents asked to name who appear on such lists most frequently
named zero women directors.[xlvii]  The chair of one major studio described this
problem to The New York Times:  the hiring team starts with a list of
candidates, but women aren’t on the list in numbers.  “When we start our interview process what I
find is, more often than not, that the majority of candidates are male.”[xlviii]  Numerous institutions within the chain of
employment are culpable in utilizing these lists that result in the exclusion
of women directors – lists come from talent agencies, production companies, and
studios.  The Directors Guild (DGA or
Guild) itself reportedly uses short lists to recommend directors for particular
projects, but the lists are not transparent or publicly available.

One
successful TV director explained how women directors can be dropped from these
lists: 

“When I stopped directing television for a year, the
percentage of women directing television dropped by a third.  There are that few of us.  I can name the women who work, and I can also
name the women who came up with me, dropped off the list and never got back
on.”

Another practice that
disadvantages women is reliance on who-you-know or “word-of-mouth” recruiting
for directing jobs, which can have an unlawful disparate impact on women
seeking jobs.[xlix]  This practice limits women’s job
opportunities in Hollywood, because “individual stakeholders in the industry
(typically white and male) look to surround themselves with other individuals
with whom they feel comfortable, … [who] tend to think and look like the
former, thereby reproducing an industry culture that routinely devalues the
talent of minorities and women.”[l] 
Both lists and reliance on “who you know” exclude women directors,
because industry leaders under-estimate eligible women directors when they rely
solely on memory.[li]

The Talent Agencies that Represent and Refer
Directors for Jobs Under-Represent Women.

Successful
directors are, by and large, represented by a small number of talent agencies,
which refer their director clients for jobs on television and in film.  Women report that many of the leading
agencies, from whom studios and networks do the bulk of hiring, are reluctant
to represent women, represent fewer women than men, and often do not include
women directors on many of their lists when they refer directors to
employers.  The agencies play a
gatekeeping function,[lii] and also
provide cover to networks who can blame the lack of women directors on the fact
that the agencies do not supply them with a list. 

One woman
director was told by an employer that his studio only hires directors through
these agencies – in this way, employers seek to pass the buck for the
discriminatory outcome to the agencies. 
One woman director with whom we spoke relayed how an agent admitted to
her that agents often don’t want to represent women because women do not get as
much work.  Another
director was told by an agent that it’s common knowledge that agents
don’t like to represent women because they don’t make as much money as male
directors.  A recent report by
UCLA confirms the important gatekeeping role of the top agencies in
contributing to the diversity problem in Hollywood, including for directors.[liii]  Another recent report found that nearly a
fifth of film sellers, including agents and managers, mentioned doubt
concerning women directors’ abilities as a barrier, perhaps explaining their
reluctance to put women forward for jobs.[liv]

Our civil rights laws have
long recognized the potential for discrimination in the gatekeeping function
performed by third-party employment agencies and therefore prohibit employment
agencies from discriminating based on sex, including in “fail[ing] or
refus[ing] to refer for employment” people based on sex.[lv]

Internal Industry Efforts to Increase Hiring of
Women are Ineffective and Some Practices May Perpetuate Discrimination.

The Directors Guild of America
(DGA or Guild) represents directors and it has a number of diversity
committees, including a Women’s Steering Committee.[lvi]  The DGA has made some efforts to increase the
hiring of women and people of color for directing jobs.  The DGA and the Association of Motion Picture
and Television Producers (AMPTP) have agreements concerning diversity that
require those who employ directors (1) to “make good faith efforts to increase
the number of working ethnic minority and women Directors,” and other members
of the directorial team, (2) to report to the DGA on compliance, (3) to comply
with antidiscrimination laws, and (4) to give the DGA various mechanisms of
enforcement power.[lvii]  The DGA has used the data it obtains from
employers to produce an annual report on the number of women and people of
color hired to direct television each year. 
The DGA also reportedly meets with employers to discuss matters of
diversity and discrimination.

These
industry agreements have not proved effective in appreciably increasing the
number of women directors who actually get work, as the DGA’s own statistical
reports reveal.  Information about the
DGA’s actual enforcement of the diversity agreements is not publicly
available.  However, women reported a
widespread perception that the DGA leadership did not prioritize increasing the
number of women directors hired and at times has expressed hostility or blocked
efforts of female members to make the issue a higher priority. 

The
DGA has also worked with studios to create fellowship or “shadowing” programs
aimed at increasing diversity, but these programs have been, at best,
ineffective at reducing gender disparities in hiring of directors and, at
worst, perceived by women directors as patronizing and a double-standard.  The programs are described as providing women
and people of color who have not yet broken into directing with opportunities to
shadow experienced directors on set, with networking and mentoring
opportunities and training.[lviii]  However, we spoke with at least 10 women who
had participated in these highly selective programs and every one told us that
the programs were too small, too hard to get into, and, most importantly, did
not lead to employment opportunities for most women—instead, as one woman put it,
these programs are “window-dressing.” 
The programs, most of which are unpaid, do not guarantee a job for those
who complete them and do not translate into jobs for most participants.  One woman told us that of her cohort of 15 at
one of the programs, only two women parlayed the experience into work
opportunity.

Many
women, particularly experienced directors, view these programs as condescending
to women, especially where women directors are required to participate as an
express or implied condition of getting work, while comparably experienced men
are not.  We learned of directors with
significant directing experience being put through the programs.  One director put it this way:

For those of us who have been in the business for a while,
who have managed against tremendously difficult odds to make movies or find
employment in TV, even accumulate long lists of awards along the way . . . .  these [programs] are a slap in the face and
just another way to humiliate a group of people who are already being
marginalized by a flawed and bias[ed] establishment.  Imagine having to watch filmmaker peers with
an equal or often inferior list of credits simply being handed an episode of TV
to direct while you are being told to go back to film school first, which may
or may not enhance your chances of landing the same exact job.  All because you are the wrong gender and/or
skin color.

The sentiment that
the shadowing programs are disrespectful to women and just another unnecessary
and biased “hoop” women directors have to jump through is widely held.[lix]  Many men get their first television directing
jobs without going through this extra hoop.

Some
described the programs as futile.  One
woman relayed to us a particularly troubling experience:  This director, who had previous experience
directing a film and a TV movie, during her time shadowing a TV director, was
pulled aside by two female crew members and warned that the Directing Producer
didn’t like women, didn’t hire women directors, and the one time he had hired a
woman director in the history of the show, he made her work environment
miserable and set her up to fail.  After
completing the program, she met with the Directing Producer to pitch herself
for directing a future episode.  While
the conversation was friendly, at the end, the Directing Producer informed her
that this particular show was “too hard” for women directors, that the crew was
hard on women directors, and that the one time he had tried a woman director
“she had done a poor job and . . . he felt sorry for her.”

A number of women pointed to
ways in which the DGA perpetuates discriminatory hiring practices.  The most common complaint was that the DGA
did not actively advocate enough for the hiring of women directors and, when it
did, promoted or referred only a small handful of women members.  The DGA maintains a list of “experienced women
and minority directors” that it provides to production companies,[lx]
but a number of the women we spoke to believe that the DGA under-includes women
when it provides short-lists of recommended directors to prospective employers,
and that this undercuts its claim that it is attempting to get more women
hired.  A related complaint is that the
DGA refers a small number of women repeatedly to employers, excluding most
women. 

Title
VII prohibits labor organizations from discriminating against members on the basis
of sex.[lxi]  Specifically, labor organizations cannot
“limit, segregate, or classify its membership or applicants for membership . .
. fail or refuse to refer for employment” in a way that would tend to “deprive”
or “limit” employment opportunities because of the individual’s sex.[lxii]

The EEOC
Should Initiate Commissioner’s Charges Against Employers that Have a Pattern of
Discriminating Against Women Directors.

Statistical and anecdotal
evidence shows that women directors face discriminatory barriers to employment.  Some employers have particularly dismal
records with regard to hiring women: not just when looking at one show for one
season, or films in one year, but consistently over time and across many
projects.  The directors we interviewed
reported that women routinely encounter discriminatory recruiting and hiring
practices, sex stereotyping, and neutral screening practices that have a
discriminatory effect.  Internal industry
mechanisms for addressing the problems have not proved successful.  Real change is needed to address this
entrenched and long-running problem of discrimination against women
directors.  External investigation and
oversight by government entities tasked with enforcing civil rights laws is
necessary to effectuate this change.[lxiii] 

The
Commission has authority to investigate industries with systemic bias in order
to develop and initiate charges against employers who engage in a pattern or
practice of discrimination.[lxiv]  Its powers include filing Commissioner’s
charges and bringing enforcement actions to remedy systemic discrimination.[lxv]  The Supreme Court has emphasized the
importance of the Commission’s broad and flexible power to investigate and
remedy systemic discrimination, noting that Congress believed that
“‘[unrelenting] broad-scale action against patterns or practices of
discrimination’ was essential if the purposes of Title VII were to be
achieved”; that the EEOC is “in the best position ‘to determine where ‘pattern
or practice’ litigation is warranted’ and to pursue it; [and thus] Congress
“made clear that Commissioners could file and the Commission could investigate
such charges.”[lxvi]

Investigating
systemic sex discrimination against women directors in order to develop a
Commissioner’s charge is consistent with the EEOC’s strategic enforcement
priorities.  A 2006 Task Force report
encouraged the Commission to place greater emphasis on identifying,
investigating, and bringing charges to address systemic employment
discrimination and to make greater use of its authority to develop and initiate
Commissioners’ charges.[lxvii]  The EEOC’s Strategic Enforcement Plan for FY
2013-2016 identified eliminating barriers in recruitment and hiring as a
priority and recognized the essential role of Commissioner’s charges in
enforcing bans on gender discrimination: 
“The EEOC will target compensation systems and practices that
discriminate based on gender. . . .  The
Commission particularly encourages the use of directed investigations and
Commissioner Charges to facilitate enforcement.”[lxviii]

Investigating
systemic discrimination against women directors is not unprecedented.  In the 1960s, the EEOC held hearings on equal
opportunity for both women and people of color in film and television, and
requested that the Department of Justice litigate to combat discrimination in
the entertainment sector under Title VII.[lxix]  The EEOC’s hearings identified barriers
facing women and people of color, including their exclusion from “rosters,” or
lists, of eligible employees, compounded by their exclusion from craft and
trade unions and guilds.[lxx]  The Justice Department investigated and
agreed that a pattern of discrimination existed and that litigation was
warranted, and it entered into settlement agreements with the Association of Motion
Picture and Television Producers, as well as a number of unions.[lxxi]  Women were not included in the agreement,
because there were too few of them in the work force to begin with.[lxxii]  The EEOC helped monitor compliance with these
agreements but monitoring and enforcement ceased after 1976.[lxxiii]  The Office of Federal Contract Compliance
Programs (“OFCCP”) and General Services Administration (GSA), to which OFCCP
had delegated compliance authority, also investigated the studios in the early
1970s.  In 1976, they found Universal
under-utilized women and minorities in a number of job categories and reached a
monitoring and reporting agreement.[lxxiv]  Thereafter, the GSA reviewed other major
studios including Warner Brothers, Columbia, MGM, Paramount, 20th Century Fox,
and Disney.  These efforts did not specifically
address discrimination against women directors,[lxxv]
nor did they create significant long-term improvements in hiring bias in the
industry. 

Decades
have passed and gender disparities remain as stark as they were in the
1970s.  The EEOC should return its
attention, investigatory powers, and enforcement resources to these serious
disparities.  The Commission should
examine the publicly available statistics and other information about hiring in
the possession of the major studios, networks, and DGA to identify employers
with the most stark pattern and practice of failing to hire women for directing
work.  The EEOC should gather further
evidence of the barriers – both intentionally discriminatory and practices with
a discriminatory effect on women – that women directors systemically
experience.  Further, the Commission
should examine the use of “lists” for hiring directors, and investigate any
disparities as to who is required (formally or informally) to go through shadowing
programs in order to get episodes.  The
Commission should examine the roles of employment agencies in failing to refer
women for jobs.  Based on available
statistics and our own investigation, it is likely the agency will find
systemic conduct that violates Title VII.

We would be happy to meet
with you to discuss these problems further. 
There are women directors who would like to meet with you as well.

Sincerely,

Melissa
Goodman

Director

LGBTQ,
Gender & Reproductive Justice Project

American
Civil Liberties Union of Southern California

Ariela Migdal

Senior
Staff Attorney

Women’s
Rights Project

American
Civil Liberties Union

Footnotes:                                                                                        

[i]
42 U.S.C. § 2000e-2(a) (2012) et seq.
  

[ii]
The majority of these women currently prefer to remain anonymous and are not
identified in this letter.  However, many
of the women have stated to us that if a civil rights enforcement agency were
to open an investigation, they would likely speak with investigators. 

[iii]
Teamsters v. United States, 431 U.S.
324 n.20 (1977).

[v]
Stacy L. Smith et al, Gender Inequality
in Popular Films
; USC Annenberg, 1, 4, 7-8 (2014); Stacy L. Smith et al., Exploring the Careers of Female Directors:
Phase III
4 (Sundance Institute & Women in Film’s Female Filmmakers
Initiative 2015), http://www.sundance.org/pdf/artist-programs/wfi/phase-iii-research—female-filmmakers-initiative.pd…
(hereinafter Careers of Female Directors
Phase III
).

[vi]
Careers of Female Directors Phase III
4.

[vii]
Martha M. Lauzen, The Celluloid Ceiling:
Behind-the-Scenes Employment of Women on the Top 250 Films of 2014,
San
Diego State Uni. Center for the Study of Women in Television & Film 2015,
1-2 (2014); see also Brent Lang, Number of Female Directors Falls Over 17
Year Period, Study Finds
(Jan. 13, 2015), http://variety.com/2015/film/news/number-of-female-directors-falls-over-17-year-period-study-finds-1….

[viii]
Directors Guild of America, DGA Report:
Employers Make No Improvement in Diversity Hiring in Episodic Television (
Sept.
17, 2014), http://www.dga.org/News/PressReleases/2014/140917-Episodic-Director-Diversity-Report.aspx.
  

[ix]
Directors Guild of America, 2014 DGA Episodic Director Diversity Report (by %
of Episodes Directed by Women) (Sept.
17, 2014), http://www.dga.org/~/media/Files/Press%20Releases/2014/DiversityReportCOMBFEMALE917.ashx.
 The Directors’ Guild of America collected
data that it used in this report, which included relevant percentages of women
directors.  The ACLU used this data to
calculate additional statistics and percentages of women directors.  We can share our spreadsheets and
calculations with the Commission upon request. 
The links to several spreadsheets created by the Directors’ Guild of
America, including this one, can be found at the bottom of this page: http://www.dga.org/News/PressReleases/2014/140917-Episodic-Director-Diversity-Report.aspx.

[x]
Id.

[xii]
Martha M. Lauzen, Boxed In: Employment of
Behind-the-Scenes and On-Screen Women in 2013-2014 Prime-time Television
,
San Diego State Uni. Center for the Study of Women in Television & Film
2014 at http://womenintvfilm.sdsu.edu/files/2013-14_Boxed_In_Report.pdf

[xiii]
Id.

[xiv]
DGA, supra note 9.

[xv]
Darnell Hunt & Ana-Cristina Ramon,
2014 Hollywood Diversity Report: Flipping the Script
(UCLA Bunche Center
2014), 16.  Our independent analyses of
the DGA report referenced in note 10 also found this to be true of the
2013-2014 shows included in that data set.

[xvi]
Jonathan Handel, Women Still
Underrepresented in Film and TV, Study Says
(Feb. 19, 2014), http://www.hollywoodreporter.com/news/women-still-underrepresented-film-tv-681485.

[xvii]
DGA, supra, note 8.

[xviii]
DGA Five-Year Study of First-Time
Directors in Episodic Television Shows Women and Minority Directors Face
Significant Hiring Disadvantage at Entry Level
(Jan. 8, 2015), http://www.dga.org/News/PressReleases/2015/150108-DGA-Five-Year-Study-of-First-Time-Directors-in-Epi….

[xix]
Smith et al., supra, note 5, at 4-7.

[xx]
Rachel Feldman, An Open Letter to TV
Showrunners: There Are Over 1200 Experienced, Accomplished Women Directors
Waiting to Be Hired
, Women and Hollywood, (July 17, 2014).

[xxi]
Lang, NYU Students Celebrate Women in
Film at Fusion Festival
, Variety (Feb. 26, 2015), http://variety.com/2015/film/news/nyu-students-celebrate-women-in-film-at-fusion-festival-1201442164…; Elizabeth M. Daley, Dean, USC School of Cinematic
Arts, Women in Hollywood:  Are the Numbers Changing?  Huffington Post Blog (July 12, 2010) available at http://www.huffingtonpost.com/elizabeth-m-daley/women-in-hollywood—are_b_639786.html.
 

[xxii]
Shaunna Murphy, Want to See More Women at
the Oscars?  It Starts at Sundance
,
MTV News (quoting LunaFest program manager Suzy Stark German) (Jan. 24, 2015), http://on.mtv.com/1CPbrfu.

[xxiii]
Careers of Female Directors Phase III 17-18.

[xxiv]
Stacy L. Smith et al., Exploring the
Barriers and Opportunities for Independent Women Filmmakers Phase I and II,
11,
17 (Sundance Institute & Women in Film’s Women Filmmakers Initiative 2014).

[xxv]
Martha M. Lauzen, Independent Women:
Behind-the-Scenes Employment on Festival Films in 2013-14,
San Diego State
Uni. Center for the Study of Women in Television & Film 2015, 1 (2014).

[xxvi]
V Renée, Why Are Women Directors Having
(Relative) Success in Independent Film, But not in Hollywood?
No Film (May
6, 2013), http://nofilmschool.com/2013/05/female-directors-indie-film-hollywood;
Careers of Female Directors Phase III 4.

[xxvii]
Careers of Female Directors Phase III
4.

[xxviii]
A “token” is someone whose group – here, women – represents a small proportion
(under 15%) of a workforce where that group has historically been
excluded.  Tokens experience
discrimination as a result of heightened visibility, having their competence
disregarded, and being judged by a double standard.  See
generally
Dana Kabat-Farr & Lilia M. Cortina, Sex-Based Harassment in Employment: New Insights into Gender and
Context,
38 Law & Human Behavior 58, 59 (2014). 

[xxx]
See, e.g., What’s it Like to be a Black, Female Director in Hollywood?  Take 2 (Feb. 19, 2014), http://www.scpr.org/programs/take-two/2014/02/19/36114/whats-it-like-to-be-a-black-female-director-i…
(interview with director Angela Robinson)[hereinafter Angela Robinson
Interview].

[xxxi]
Careers of Female Directors Phase III
15-16.

[xxxii]
Smith et al., supra note 24, at 31.

[xxxv]
Dorothy Pomerantz, Sony’s Amy Pascal On
Closing The Money Gap Between Men And Women In Hollywood
, Forbes Magazine
(May 22, 2013), http://www.forbes.com/sites/dorothypomerantz/2013/05/22/sonys-amy-pascal-on-closing-the-money-gap-be….
                 

[xxxvi]
Inkoo Kang, Producer Gale Anne Hurd: Sexism Against Women Directors Hasn’t
Changed Since the ‘80’s, Women and Hollywood,
Indiewire (Feb. 17, 2015), http://blogs.indiewire.com/womenandhollywood/producer-gale-anne-hurd-sexism-against-women-directors-….

[xxxvii]
Careers of Female Directors Phase III
21-22
.

[xxxviii]
See, e.g., Craig Lindsey, Julie Dash and the Ongoing Struggle of Black
Women Filmmakers
, Indy Week (Sept. 7, 2011), http://www.indyweek.com/indyweek/julie-dash-and-the-ongoing-struggle-of-black-women-filmmakers/Conte…

[xxxix]
Manohla Dargis, Making History, The
New York Times (Dec. 3, 2014), http://www.nytimes.com/2014/12/07/movies/ava-duvernay-makes-a-mark-with-selma.html;
Manohla Dargis, In Hollywood, It’s a
Men’s, Men’s, Men’s World
, The New York Times (Dec. 24, 2014), http://www.nytimes.com/2014/12/28/movies/in-hollywood-its-a-mens-mens-mens-world.html?_r=0.;
Careers of Female Directors Phase III
13-14.

[xl]
Nsenga Burton, Black Women and the
Hollywood Shuffle
, The Root (Aug. 6, 2010), http://www.theroot.com/articles/culture/2010/08/black_women_filmmakers_struggle_in_hollywood.html?pa…,
(quoting Ava Duverney, who subsequently directed Selma).

[xli]
Manohla Dargis, In Hollywood, It’s a
Men’s, Men’s, Men’s World
, supra note 39.

[xlii]
Careers of Female Directors Phase III
10-13.

[xliii]
Id. at 4.

[xliv]
Angela Robinson Interview, supra note
30.

[xlvii]
Careers of Female Directors Phase III
17-18.

[xlviii]
Dargis, supra, note 41.

[l]
Darnell Hunt & Ana-Cristina Ramon,
2015 Hollywood Diversity Report: Flipping the Script
(UCLA Bunche Center
2015), 54 (hereinafter “2015 Bunche Center Report”) (describing the phenomenon
and reporting that women are underrepresented 8 to 1 among film directors and
that film studio senior management remains 83% male). 

[li]
Careers of Female Directors Phase III
18.

[lii]
2015 Bunche Center Report, supra note 50, at 35.

[liii]
Id. at 35-41.

[liv]
Careers of Female Directors Phase III
22.

[lvi]
A director must have a job with a DGA signatory employer to be eligible for
Guild membership.  DGA Website,
Membership Department, available at http://www.dga.org/The-Guild/Departments/Membership/Joining-the-DGA.aspx;
http://www.dga.org/The-Guild/Diversity.aspx.   

[lvii]
Basic Agreement, Article 15 (non-discrimination terms covering directors and
directorial team in film and television.), available
at
http://www.dga.org/~/media/Files/Contracts/Agreements/2011%20BA%20sc/2011%20BA%20full.pdf;
Freelance Live and Tape Television Agreement, Article 19, available at http://www.dga.org/Contracts/Agreements/FLTTA2011.aspx
(non-discrimination terms covering  directors and directorial team in live
productions and projects shot on videotape). 
These agreements were made after the DGA sued two studios
for failing to hire women and people of color. 
The district court judge denied the plaintiffs’ class certification
motion and dismissed the DGA as a class representative, finding the DGA had
conflicting interests and evidence indicated that the DGA was partially
responsible for any alleged discrimination at issue, given its own
practices.  See Dirs.
Guild of Am., Inc. v. Warner Bros.
, Nos. CV 83-4764-PAR; CV 83-8311-PAR,
1985 U.S. Dist. LEXIS 16325 (C.D. Cal. Aug. 30, 1985)
.  It is our understanding that the parties then
reached a settlement which led to the diversity agreements.

[lviii]
Directors Guild of America, http://www.dga.org/The-Guild/Diversity.aspx

[lix]
Rachel Feldman, Me and My Shadow, Women
Directors in Hollywood (Dec. 6, 2012), http://www.womendirectorsinhollywood.com/me-my-shadow/.

[lx]
DGA Report Assesses Director Diversity in Hiring Practices for Episodic
Television (Sept. 27, 2012), http://www.dga.org/News/PressReleases/2012/092712-DGA-Report-Assesses-Director-Diversity-in-Hiring-P….
 

[lxiii]
Note that we are simultaneously asking the Office of Federal Contract
Compliance Programs and California’s Department of Fair Employment and Housing
to consider action as well.

[lxiv]  42 U.S.C. § 2000e-6.

[lxvii]
Systemic Task Force Report to the Chair of the Equal Employment Opportunity
Commission (March 2006), available at
http://www.eeoc.gov/eeoc/task_reports/systemic.cfm#fn5.

[lxviii]
U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan (FY
2013-2016), available at http://www.eeoc.gov/eeoc/plan/sep.cfm (“The EEOC will
target class-based intentional recruitment and hiring discrimination and
facially neutral recruitment and hiring practices that adversely impact
particular groups [including women]. . . . 
These include exclusionary policies and practices, the
channeling/steering of individuals into specific jobs due to their status in a
particular group, restrictive application processes, and the use of screening
tools.”).

[lxix] California
Advisory Committee to the United States Commission on Civil Rights, Behind the Scenes:  Equal Employment Opportunity in the Motion
Picture Industry
(Sept. 1978) at 11-14 (summarizing early history of
efforts by anti-discrimination agencies to enforce civil rights mandates in
Hollywood). 

[lxx]
Id.    

[lxxii]
Id.    

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