May 12, 2015 Anna Y. Park, Regional Attorney Rosa Viramontes

1 3 1 3 W E S T E I G H T H S T R E E T L O S A N G E L E S C A 9 0 0 1 7 t 2 1 3 . 9 7 7 . 9 5 0 0 f 2 1 3 . 9 7 7 . 5 2 9 9 A C L U S O C A L . O R G

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

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.

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.

42 U.S.C. § 2000e-2(a) (2012) et seq.

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.

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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.”

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.”

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.

Of the

1,300 top-grossing films from 2002-2014, only 4.1% of all directors were women.

 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.

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.

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

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

Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977).

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.pdf (hereinafter Careers of Female

Directors Phase III).

Careers of Female Directors Phase III 4.

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-1201402686/.

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.

Page 3

 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.

 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.

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.

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.

When combining

network, cable, and Netflix, women still comprised only 13% of directors.

 In the 2013-2014 season, only ten shows had women directing 50% or more of episodes – an

exceedingly rare phenomenon.

 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.

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.

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.ash

x. 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.

Id.

Teamsters, 431 U.S. at 342 n. 23.

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.

Id.

DGA, supra note 9.

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.

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.

Page 4

 Women of color directed only 2% (73 of 3,558) of episodes in 2013-14.

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.

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.

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.”

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.

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.”

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.

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,

and women direct about a third of

DGA, supra, note 8.

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-Episodic-Television.aspx.

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

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).

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.

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.

Careers of Female Directors Phase III 17-18.

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).

Page 5

documentary films.

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.

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%).

Women report being treated as tokens

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.

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.”

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.

Women are

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).

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.

Careers of Female Directors Phase III 4.

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).

See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989).

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-in-hol/ (interview with director Angela Robinson)[hereinafter Angela Robinson Interview].

Careers of Female Directors Phase III 15-16.

Page 6

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.

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.”

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.

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

Smith et al., supra note 24, at 31.

Thomas v. Eastman Kodak Co., 183 F.3d 38, 58 (1st Cir. 1999).

See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 (1988) (finding “subjective” hiring

practices can be discriminatory because of “subconscious stereotypes and prejudices”).

Page 7

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.”

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."

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.

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.

Both research and the anecdotal evidence we gathered show serious gender

disparities in opportunities, even for women whose films debut at prestigious festivals.

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-between-men-and-women-in-hollywood/.

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-hasnt-changed-since-the-80s-20150217.

Careers of Female Directors Phase III 21-22.

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/Content?oid=2650131.

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.

Page 8

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.”

This form of discrimination results in women being disproportionately represented in and

pigeonholed into doing only smaller, independent or documentary films.

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.

Researchers have documented “the

fiscal cliff women face as they move from independent to more commercial fare.”

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

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?page=0,0, (quoting Ava Duverney, who subsequently directed Selma).

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

Careers of Female Directors Phase III 10-13.

Id. at 4.

Page 9

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."

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.

The law thus bans “‘not only overt discrimination but also practices that are fair in form,

but discriminatory in operation.’”

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.

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.”

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.

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

Angela Robinson Interview, supra note 30.

42 U.S.C. § 2000e-2(k).

Lewis v. City of Chi., 560 U.S. 205, 211 (2010) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431

(1971)).

Careers of Female Directors Phase III 17-18.

Dargis, supra, note 41.

See, e.g., United States v. Brennan, 650 F.3d 65, 126 (2d Cir. 2011) (“recruiting practices [such as]

word-of-mouth recruiting, and limited advertising” may be “prohibited by Title VII”).

Page 10

culture that routinely devalues the talent of minorities and women.”

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.

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,

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.

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.

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.

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.

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

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).

Careers of Female Directors Phase III 18.

2015 Bunche Center Report, supra note 50, at 35.

Id. at 35-41.

Careers of Female Directors Phase III 22.

42 U.S.C. § 2000e-2(b).

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.

Page 11

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.

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.

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]

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%20ful

l.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.

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

Page 12

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.

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,

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.

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.

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

Rachel Feldman, Me and My Shadow, Women Directors in Hollywood (Dec. 6, 2012),

http://www.womendirectorsinhollywood.com/me-my-shadow/.

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-Practices.aspx.

42 U.S.C. § 2000e-2(c)(1).

Id. § 2000e-2(c)(2).

Page 13

discrimination against women directors. External investigation and oversight by government entities

tasked with enforcing civil rights laws is necessary to effectuate this change.

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.

Its

powers include filing Commissioner’s charges and bringing enforcement actions to remedy systemic

discrimination.

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.”

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.

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.”

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.

42 U.S.C. § 2000e-6.

42 U.S.C. § 2000e-6(e) (“[T]he Commission shall have authority to investigate and act on a charge of

a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be

aggrieved or by a member of the Commission.”); 42 U.S.C. § 2000e-5(b) (“A charge [may be] filed by…

[an] aggrieved [individual] or by a member of the Commission.”); 29 C.F.R. § 1601.6(a) (2013) (“The

Commission shall receive information concerning alleged violations of Title VII . . . from any person. . . .

Any person or organization may request the issuance of a Commissioner charge for an inquiry into

individual or systematic discrimination.”). 29 C.F.R. § 1601.11(a) (“Any member of the Commission

may file a charge with the Commission.”); EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984) (“When a

Commissioner has reason to think that an employer has engaged in a ‘pattern or practice’ of

discriminatory conduct, he may file a charge on his own initiative.”); EEOC v. Fed. Express Corp., 558

F.3d 842, 849 (9th Cir. 2009) (same).

Shell Oil Co., 466 U.S. at 69-70.

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.

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.”).

Page 14

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.

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.

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.

Women were not included in the agreement, because there were too few of them

in the work force to begin with.

The EEOC helped monitor compliance with these agreements but

monitoring and enforcement ceased after 1976.

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.

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,

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.

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).

Id.

Id. at 13.

Id.

Id. at 14, 36-37.

Id. at 15.

Id. at 15-32.

Page 15

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