THE EEOC INVESTIGATION UNDER TRUMP could go several ways: Trump just appointed Jeff Sessions as his Attorney General. The Attorney General is the boss of the Department of Justice, and the EEOC is a division of the DOJ. On the surface, Sessions looks very bad for civil rights in general— he is on record as being against gay marriage, for example, and I suspect equality is not his passion.
Also, the EEOC’s General Council (head lawyer), David Lopez, announced he will be stepping down in the next six months. This means Trump will be appointing a new General Council, which could be good or bad depending on who he picks. So far all his picks have been very conservative.
Unfortunately, the current head of the EEOC, Jenny Yang, is also soon stepping down so Trump will also be appointing a new Chair. Yang’s key pursuit has been equal pay, and obviously she also has supported the investigation into discrimination against women directors.
Vice president Mike Pence has consistently opposed equal pay, but this contradiction could be good for us. If equal pay efforts in the EEOC are stalled, that could help encourage a new chair to shift the commission’s emphasis onto discrimination against women in Hollywood. As new reports indicate a continued sinking in female director hires in 2016 (Celluloid Ceiling 2017), the problem is more glaring than ever.
One good thing is that the EEOC is a quasi-independent agency under the jurisdiction of the justice department. Independent agencies in our Federal government generally have wide latitude and discretion in what they choose to pursue, however it all depends on who’s running things, and Trump will make those decisions. We can only hope the new EEOC Chair and General Counsel will maintain the commission’s commitment to the investigation.
An interesting consideration is whether Trump will make budget cuts to the EEOC as conservative administrations are apt to do. Historically, when faced with budget cuts, the EEOC tends to pursue high-impact, high-visibility, systemic cases. That could be good for us as our case is precisely those things: high-impact, high-visibility, and systemic.
Add to that the fact that it could advantage Trump to blast a spotlight on liberal, democratic Hollywood hypocrisy in keeping women shut out of the directing profession. He might like to see the Feds go after the studios and networks to shame the industry that stands as the worst violator of Title VII in the United States. Also, supporting the investigation could help Trump improve his dismal reputation among women.
All of these considerations could present auspicious signs.
On the other hand, there have been concerns that the immensity of the threat Trump poses to civil rights in general may trivialize the battle for women directors. This could be a problem, but the EEOC and the ACLU have clearly demonstrated their understanding that all women’s issues and all civil rights issues are profoundly influenced by our entertainment media.
We must press forward with the knowledge that gender equal hiring among U.S. directors and storytellers is the keystone to all American civil rights issues because if women contribute equally to our nation’s storytelling, our cultural narrative will naturally begin to shift all people’s thinking toward a more equitable ethos.
I hope that in this dark time the EEOC will continue to prioritize the investigation, and that the ACLU will not view this important issue as trivial compared to the other daunting challenges they face. Never have American women been more united. We may be experiencing the dawn of the greatest movement feminist movement in American history. Certainly, this is truly our greatest chance to win the most significant battle for equality since suffrage.
It’s all a big chess game. We women must be deft in our moves and keep our eyes on the prize.
Here I present the 1985 ruling by Judge Pamela Rymer in the 1983-1985 Class-action case(s) DGA v Warner Brothers, and DGA v. Columbia Pictures
PLEASE NOTE that the failure of the case resulted when Judge Rymer dismissed the DGA as representative of the “Class” of women and ethnic minorities under the claim of employment discrimination.
Rymer’s decision concluded as follows:
“Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiffs’ motion to certify the class is denied; 2. The DGA is dismissed as a class representative; 3. The law firm of Hunt & Cochran-Bond may continue their representation of the named plaintiffs in accordance with the requirements for client consent set forth above; and 4. A further status conference in this case shall be held September 20, 1985 at 8:30 a.m.”
The following is the unedited ruling:
1985 U.S. Dist. LEXIS 16325, * ; 2 Fed. R. Serv. 3d (Callaghan) 1429
DIRECTORS GUILD OF AMERICA, INC., JOELLE DOBROW, LUTHER JAMES, LORRAINE RAGLIN and CESAR TORRES, Plaintiffs, v. WARNER BROTHERS, INC., Defendant
DIRECTORS GUILD OF AMERICA, INC., BILL CRAIN, DICK LOOK, SHARON MANN, SUSAN SMITMAN, and FRANK ZUNIGA, Plaintiffs, v. COLUMBIA PICTURES INDUSTRIES, INC., Defendant
Nos. CV 83-4764-PAR; CV 83-8311-PAR
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
1985 U.S. Dist. LEXIS 16325; 2 Fed. R. Serv. 3d (Callaghan) 1429
August 30, 1985
PROCEDURAL POSTURE: Plaintiffs, named individuals and a directors guild, filed a motion pursuant to Fed. R. Civ. P. 23(c), which sought to certify a class of plaintiffs in their action against defendant production companies. Plaintiffs’ action alleged claims of employment discrimination.
OVERVIEW: The named individuals sought to certify a class of persons that would have included all women and racial minorities who were on a qualifications list for certain positions but who had not succeeded in gaining employment with the production companies because of their discriminatory practices and reputations. The court determined that in order to maintain a lawsuit as a class action, the named individuals were required to satisfy each of the four conjunctive criteria set forth in Fed. R. Civ. P. 23(a). Additionally, the action was required to fall within one of three subdivisions established in Fed. R. Civ. P. 23(b) before it could have proceeded as a class action. The court held that the conflict of interest raised by the directors guild’s role was sufficiently concrete and immediate to preclude the its representation of the class comprised of females and minorities. The court determined that issues concerning the conflict of interests of the named individuals’ counsel had to be resolved. The court found it was unable to determine the class at this juncture.
OUTCOME: The named individuals’ motion to certify the class was denied. The directors guild was dismissed as a class representative. The named individuals’ law firm was allowed to continue their representation of the named individuals in accordance with the requirements for client consent.
CORE TERMS: producer, hiring, assistant director, former client, production manager, class action, consultation, counterclaim, television, hire, female, male, recommendation, studio, Model Rule, law firm, class representative, word-of-mouth, theatrical, select, pilot, confidential information, disqualified, lawsuit, collective bargaining agreement, television program, right to select, motion picture, subjective, candidate
In order to maintain a lawsuit as a class action, plaintiffs must satisfy each of the four conjunctive criteria set forth in Fed. R. Civ. P. 23(a). Additionally, the action must fall within one of the three subdivisions established in Fed. R. Civ. P. 23(b) before it may proceed as a class action.
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).
Before ordering that a lawsuit may proceed as a class action, a trial court must rigorously analyze whether the prerequisites of Fed. R. Civ. P. 23 are met. The class plaintiff bears the burden of establishing that the action may be maintained as a class action. Thus, the failure of plaintiffs to carry their burden as to any one of the requirements of Rule 23 precludes the maintenance of the lawsuit as a class action.
The numerosity element is best analyzed after the other requirements are applied so that the appropriate parameters and size of the membership of the resulting class can be determined.
To establish commonality, a plaintiff must present significant evidence from which it may be inferred that there is an identifiable pattern or practice affecting a definable class in common ways. In an action alleging employment discrimination, the relevant considerations in determining the existence of commonality are as follows: (i) whether the nature of the unlawful employment practice charged is one that genuinely has a class-wide impact; (ii) the degree of uniformity or diversity of the relevant employment practices of the employer. Appropriate factors to take into account include: degree of decentralization of administration, size of the work force, number of plants and installations involved, extent of diversity of employment conditions, occupations and work activities and degree of geographic dispersion of the employees; and (iii) the degree of uniformity or diversity of the membership of the class in terms of the likelihood that the members’ treatment will involve common questions.
Two additional commonality considerations in an action alleging employment discrimination are: the nature of the employer’s management organization as it relates to the degree of centralization and uniformity of relevant employment and personnel policies and practices; and the length of time encompassed by the allegations and the degree of probability that similar conditions prevail throughout the period.
Fed. R. Civ. P. 23(a)(3) requires that the claims or defenses of the representative parties are typical of the claims or defenses of the class. Under Rule 23(a)(3), the representative plaintiff must show that he or she has a claim which affects the members of the class to an extent that the interest of the representative party is coextensive with the interest of the entire class. The class representative must be part of the class and possess the same interest and suffer the same injury as the class members. Thus, finding that the representative’s claims are typical of the class rests on a determination of the existence of a class with common questions of fact or law.
The fourth prerequisite of Fed. R. Civ. P. 23(a) is the most crucial requirement because of the preclusive effect a judgment will have on the rights of absent members. There are two prongs to the requirement of fair and adequate representation. First, a trial court must be satisfied that the representative party’s attorneys are qualified and able to conduct the litigation. Second, the named plaintiffs must establish that the suit is not collusive and that their interests are not antagonistic to those of the remainder of the class.
In view of counsel’s duties to give their undivided loyalties, avoid the appearance of impropriety and, in a class action, pay scrupulous attention to the interests of the class, representation of parties with substantially adverse interests is inappropriate. Even if both parties consent to the representation the same counsel, where it cannot reasonably be said that the representation will not be adversely affected, the law firm may not represent both clients.
A lawyer who formerly represents a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (b) use information relating to the representation to the disadvantage of the former client except as Model Rule of Professional Conduct Rule 1.6 (confidentiality) would permit with respect to a client or when the information becomes generally well known.
There are a wide range of concerns which underlie the prohibition against representing a client whose interests are adverse to a former client. A lawyer’s duty to a client continues past the termination of the lawyer-client relationship and adverse representation potentially violates the attorney’s duty of undivided loyalty. Representation against a former client also presents a risk that confidential information may be used to the detriment of the former client. Finally, the proscription against representing another person against a former client is based on fundamental fairness to the client and maintaining the integrity of the bar and judicial system by avoiding the appearance of impropriety. In this regard, a court must balance the client’s right to choose his own counsel against its obligation to safeguard the integrity of the judicial process in the eyes of the public.
Even where a former client’s interests are adverse to a present client’s and the two are involved in the same matter, Model Rules of Prof’l Conduct R. 1.9. provides that an attorney may continue his representation if the former client consents after consultation.
ABA Model Code of Prof’l Responsibility DR 5-105(C) allows a lawyer to represent multiple clients if it is obvious that the attorney can adequately represent the interest of each client and if each consents to the representation after full disclosure.
A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents after consultation; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required
A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; and (3) disqualification of the lawyer would work substantial hardship on the client. Model Rules of Prof’l Conduct R. 3.7. The rule seeks to avoid the appearance of impropriety, protect the opposing party from prejudice, and guard the integrity of the attorney’s advocacy by preserving the distinction between advocacy and testimony. Under the Model Rules, an attorney must be disqualified only if counsel is likely to be a necessary witness.
In a class action the court has a special obligation to assure representation that is unfettered by even the appearance of divided loyalty.
OPINION BY: RYMER
OPINION: PAMELA ANN RYMER, UNITED STATES DISTRICT JUDGE
MEMORANDUM OF DECISION AND ORDER
This is an action alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, et seq and the Civil Rights Act of 1866, to the Directors Guild of America (“DGA”) and the named individual plaintiffs move for an order certifying a class of plaintiffs which would consist of all women and racial minorities who have been or would be applicants for employment with defendants as Director, Assistant Director, Stage Manager, or Production Assistant but for defendants’ discriminatory practices and reputation. The class would also include those women and racial minorities who are on a qualifications list for Unit Production Manager, First Assistant Director, and Second Assistant Director but who have not succeeded in gaining employment because of defendants’ discriminatory practices and reputation.
In order to maintain a lawsuit as a class action, the plaintiffs must satisfy each of the four conjunctive criteria set forth in Additionally, the action must fall within one of the three subdivisions established in Rule 23(b) before it may proceed as a class action. Rule 23(a) provides:
“(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”
HN3 Before ordering that a lawsuit may proceed as a class action, the trial court must rigorously analyze whether the prerequisites of Rule 23 have been met. The class plaintiff bears the burden of establishing that the action may be maintained as a class action. Thus, the failure of plaintiffs to carry their burden as to any one of the requirements of Rule 23 precludes the maintenance of the lawsuit as a class action. Having considered the papers and oral argument, I conclude that the class cannot be determined at this time. Prior to argument I issued a Tentative Ruling which raised a number of concerns, including adequacy of representation, commonality and typicality. Further briefing was requested as to the former. I am persuaded first, that the DGA may not serve as a class representative and second, that counsel, having been an attorney for the DGA in connection with matters which are at issue in this action, cannot also represent the plaintiff class. Although waiver of a conflict could be obtained from the named plaintiffs individually, no effective mechanism exists for doing so from the class and no alternative, such as creation of a subclass coextensive with the principal class to prosecute claims against the DGA, would sufficiently erase the taint of conflict. With respect to the latter requirements, after argument I am convinced that neither an evidentiary hearing nor notice would facilitate the class determination but would simply increase costs unnecessarily if interposed at this point. Accordingly, recognizing that no class determination is final until judgment is rendered, I shall rule on the record adduced and deny the plaintiffs’ motion.
Defendants do not oppose class certification on the basis of plaintiffs’ failure to meet the numerosity requirement. In any event, this element is best analyzed after the other requirements have been applied so that “the appropriate parameters and size of the membership of the resulting class” can be determined.
2. Common Questions of Law or Fact.
Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” To establish commonality, the plaintiff must present significant evidence from which it may be inferred that there is “an identifiable pattern or practice affecting a definable class in common ways.” In an action alleging employment discrimination, the relevant considerations in determining the existence of commonality are as follows:
(i) whether the nature of the unlawful employment practice charged is one that genuinely has a class-wide impact;
(ii) the degree of uniformity or diversity of the relevant employment practices of the employer. Appropriate factors to take into account include: degree of decentralization of administration, size of the work force, number of plants and installations involved, extent of diversity of employment conditions, occupations and work activities and degree of geographic dispersion of the employees;
(iii) the degree of uniformity or diversity of the membership of the class in terms of the likelihood that the members’ treatment will involve common questions; (iv) the nature of the employer’s management organization as it relates to the degree of centralization and uniformity of relevant employment and personnel policies and practices; and
(v) the length of time encompassed by the allegations and the degree of probability that similar conditions prevailed throughout the period.
Consideration of these factors in light of the evidence submitted by plaintiffs and defendants leads me to conclude at this time that plaintiffs have not carried their burden of establishing the existence of common questions of law or fact.
In the motion picture industry, hiring decisions for DGA-covered positions are made in a decentralized manner. Hiring decisions are vested in numerous individuals who act independently of each other. For each production, the individuals responsible for the hiring process will vary. Independent or outside producers will often have a significant degree of influence over the decision. Moreover, highly subjective criteria are utilized to select the individuals to staff the production. Typically, personnel responsible for filling the DGA-covered positions will look for prior experience in the type of production planned, technical competence, an ability to work effectively with the other members of the staff and specific personality traits.
At Columbia, theatrical motion pictures are staffed on a project by project basis which varies according to the motion picture under production. Typically, several individuals will consult in the decision to fill any one position and different individuals will be involved in each project. Occasionally, a project will be offered to Columbia with the director already selected. In that case, Columbia will either produce the motion picture with the director as designated or decline the offer. If Columbia decides to produce the picture without a director already chosen, the director will be selected according to the consensus of Columbia executives and other individuals involved in the project such as the producers, actors or writers.
Columbia usually makes the initial recommendation for unit production managers subject to the acceptance of the producer and the director. However, Columbia will often accede to the wishes of the director or producer if they have a particular unit production manager in mind at the time Columbia accepts the project. Selection of the unit production manager is strongly influenced by the particular demands of the production such as foreign locations, special effects and action shots. Under Section 7-204 of the Basic Agreement, the director has the right to select the first assistant director. As is the industry custom, the first assistant director will select the second assistant director with recommendations from the director, unit production manager and a Columbia executive.
Selection of DGA-covered personnel in Columbia’s television subsidiary exhibits many of the same characteristics seen in the theatrical film division. The President of Columbia Pictures Television, Inc., Barbara Corday, states: “Hiring decisions are made on a consensus basis by different groups of individuals acting independently of each other, although on occasion some of the individuals in each group may be the same. . . . [D]ecisions regarding the hiring for a television program will be made by a consensus process including, depending on the job category, the producer or producers, the network broadcasting the program, the director, the first assistant director, the unit production manager, and one or more Columbia executives associated with that program. The combination of individuals involved in this process will change from program to program and, within each program, from job category to job category.” In 1984, thirty-five different producers worked on Columbia’s ten television productions. Columbia’s thirteen theatrical motion pictures employed twenty-six different producers, and thirteen different directors and first assistant directors.
In television, the hiring process at Columbia varies according to the type of program such as daytime serial, television movie, mini-series, episodic drama, situation comedy and pilot as well as the medium such as film or videotape. For example, in hiring a director for a filmed or videotaped television program, the producer will have the direct authority to make the selection but the television network which will broadcast the program and Columbia executives will have the right to approve it. When selecting the director for a pilot production, mini-series or television movie, the producer, network and Columbia executive will confer but the network will tend to have somewhat more input in the decision than with episodic programs.
As with theatrical motion pictures, section 7-204 gives the director the right to select the first assistant director for the production of a mini-series or television movies. As a matter of practice, the director will select the first assistant director for a pilot production. (Corday Decl., P 19.) The same consensus process between the producer, the director and Columbia operates in the selection of the second assistant director.
The decision of whom to hire for unit production manager for an episodic filmed television program is made by consensus between the producer and Columbia. In turn, the unit production manager generally selects the first assistant director for the television program in consultation with the Columbia production department. The first assistant director then may choose the second assistant director and the first assistant director’s choice is usually honored unless Columbia objects.
At Warner Brothers, hiring decisions for DGA-covered jobs are also made on a job-by-job basis which is highly decentralized and subjective. With respect to theatrical movies produced at Warner Brothers, the producer generally exercises the discretion to hire the director. Generally, producers seek to hire directors who have demonstrated their ability to make commercially successful and artistically satisfying films as well as familiarity with the type of film to be produced. Section 7-204 gives the director the unfettered right to select the first assistant director and the director will usually try to hire persons who have worked for him or her previously. Typically, the first assistant director has considerable influence over the selection of the first assistant director although the choice is theoretically that of the producer. The studio would only rarely deny the first assistant director his choice of second assistant.
In episodic television productions at Warner Brothers, the idea for the production may originate within Warner Brothers or by an independent producer who wishes to collaborate with the studio. In conjunction with a television network, the producer will compile a list of directors to direct the various episodes planned. The directors will be selected based on their previous success, familiarity with the particular type of production under consideration and ability to work well with the members of the staff and cast. The producer will then hire a unit production manager who in turn will often consult with the producer to hire a first assistant director. Either the unit production manager or the first assistant director, or both, will select the second assistant director.
Thus, at both Columbia and Warner Brothers the hiring decisions are not made by a single authority but are instead made in a highly decentralized manner. The individuals who make the hiring decisions rarely do so for several productions and most decisions are shared among many key individuals. Moreover, the hiring decision is essentially subjective in nature, especially where the position requires creative talent. For purposes of filling DGA-covered positions, hiring decisions at both studios are not made according to a uniform policy or set of guidelines. Instead, hiring decisions are made project-by-project by a variety of persons, only some of whom are employed by the studios, and who utilize different criteria which varies depending on the type of project involved. Additionally, DGA-covered employment at the two studios takes place at a myriad of different locations and under a variety of conditions. These factors, coupled with the diversity of the proposed class leads me to conclude that the existence of common questions of law or fact has not been demonstrated.
The evidence adduced by plaintiff does not compel a different result. Plaintiffs submit the deposition testimony of a number of executives employed by defendants for the purpose of demonstrating the existence of a system of word-of-mouth hiring. For example, Warner Brothers executive Barry Meyer testified that with respect to choosing directors for television productions, executives at the studio usually confer and compile a list of candidates. Meyer stated that there was no formal application process and that Warner Brothers did not advertise openings. He also indicated that candidates were recommended by other executives with whom they have worked or by their agents.
Columbia executive William Fischer described the process for hiring a director of a pilot production. To find the most qualified applicants, he sought to determine who had previously directed successful pilots. If those identified are not available, he considers the names of individuals offered by agents or individuals who promote their own candidacy as well as the recommendations of other producers or executivess. Fischer testified that the recommendations are “word of mouth” and typically from the executive’s “own personal experience.” He also acknowledged that when no one was hired through the word-of-mouth process, he usually looked to someone already on the production, such as an associate director or a writer, to direct the episode.
Columbia executive Sheldon Schrager testified that candidates for unit production manager propositions are identified first by recommendation of the producer, director or writer. If that process does not yield a candidate, the producer, director and executive will examine the book published by the DGA which lists all of its members and their credits. Schrager testified that he also keeps his own file of personnel involved in various projects, refers to the DGA’s availability list on a weekly basis and interviews individuals referred by other producers or directors.
In addition, several of the named plaintiffs testified that they did not have access to information of job openings or to the individuals who did the hiring. For example, in response to the question why he could not obtain employment at Warner Brothers, Luther James testified, “I have never been able to have any kind of contact that might lead to work there . . . I don’t know people there. And that is the way that people get work.”
The deposition testimony offered by plaintiffs suggests that there is no systematic mechanism for notifying women and minority members of the DGA of job openings and that word-of-mouth recommendation is the predominant method for identifying potential applicants. However, due to the decentralization of the industry and the subjective nature of the hiring process, plaintiffs have not demonstrated that this action is susceptible to class treatment despite the apparent prevalence of word-of-mouth notification. See
3. Claims or Defenses Typical of the Class.
Rule 23(a)(3) requires that “[t]he claims or defenses of the representative parties are typical of the claims or defenses of the class.” Under Rule 23(a)(3), the representative plaintiff must show that he or she “has a claim which affects the members of the class to an extent that ‘the interest of the representative party . . . [is] coextensive with the interest of the entire class . . .'” The class representative “must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” Thus, finding that the representative’s claims are typical of the class rests on a determination of the existence of a class with common questions of fact or law. There being no class with common questions, there is no need to determine if the claims of the representatives are typical of the purported class.
4. Fair and Adequate Protection of the Interests of the Class.
In this case, the fourth requirement of Rule 23(a), whether the representative parties will fairly and adequately protect the interests of the class, also presents an obstacle to class certification. This prerequisite has been called the most crucial requirement because of the preclusive effect a judgment will have on the rights of absent members. There are two prongs to the requirement of fair and adequate representation. First, the trial court must be satisfied that the representative party’s attorneys are qualified and able to conduct the litigation. Second, the named plaintiffs must establish that the suit is not collusive and that their interests are not antagonistic to those of the remainder of the class.
With respect to the first prong, there is no question that counsel for the named plaintiffs possess sufficient qualifications and experience ably to conduct this litigation.
It is the second prong — the absence of conflicting interests between the named representatives and the class — that poses the most serious problem. The DGA is named as representative of the class composed of women and minority members. At the same time, defendants have filed counterclaims against the DGA which assert that it is wholly or partially responsible for whatever discrimination may exist against women and minorities as a result of its role as bargaining representative and acquiescence in discriminatory practices, if any. Specifically at issue are sections 7-204 and 7-203 of the Basic Agreement by which the Director of filmed productions has the right to select the First Assistant Director and the DGA’s acceptance of responsibility for any discriminatory effect of that provision; the Director’s right to consult in the selection of a Unit Production Manager; the Qualifications List system proposed by the DGA; the DGA’s rejection of an affirmative action override proposed by the employers; the one director rule set forth in section 7-207; and the DGA’s acquiescence in the word-of-mouth system.
Whether a union will adequately represent a class of persons is a question of fact to be determined on a case-by-case basis. In County of Santa Clara the Court determined that the union would be an adequate class representative on evidence which showed that: (1) a majority of the union’s statewide officers were women; (2) women comprised between 70 and 80 percent of the local union’s members and 100 percent of its officers; (3) the union consistently sought equal pay for its female members through its collective bargaining efforts; (4) the union filed complaints with the Equal Employment Opportunity Commission over unequal pay scales; (5) no economic conflicts between male and female members was indicated; (6) no male union members objected to the union representing the class; (7) no evidence that male union members would suffer pecuniary loss if the female members prevailed in the suit was presented; and (8) a counterclaim had not been filed against the union.
In contrast here: Eighty percent of the DGA’s members are white males; only four percent are minorities and only 15% are females. Of the ten DGA officers, two are women and none is a member of a minority group. With the exception of one female, all eleven members of the DGA’s national board are white males. (Id.) There is no showing that the DGA has consistently sought equal rights through its collective bargaining efforts. To the contrary, the defendants’ counterclaims raise serious issues concerning the DGA’s role in creating and perpetuating the allegedly discriminatory system of hiring. As noted in prior motions for summary judgment, there exist triable issues of fact whether the DGA, by negotiating the collective bargaining agreement, has contributed to any discriminatory impact.
DGA’s assertion that it has no conflict with the interests of women and minorities, but instead has an interest congruent with such a class to establish that the defendants are responsible for their underemployment, is not convincing. To accept this position would leave the DGA in control of the classes’ suit and the defendants as the parties prosecuting the claims of illegal discrimination against the DGA. The result would be to delegate the responsibility for fully vindicating the rights of women and minorities to someone other than the class itself. [*21]
Furthermore, two separate lawsuits filed in the Central District demonstrate that at least some members of the DGA perceive conflicting interests. In two white male second assistant directors alleged reverse discrimination as a result of the DGA’s attempts to induce the production companies to hire more women and minorities. At the other extreme, in Metoyer v. Franklin, Directors Guild, et al., CV 85-308 RMT (Gx), a black male production coordinator recently filed suit against the DGA for violations of Title VII based on its membership practices.
The conflict of interest raised by the DGA’s role is sufficiently concrete and immediate to preclude the DGA’s representation of the class comprised of females and minorities. n2 Accordingly, the DGA is dismissed as a plaintiff.
n2 With the exception of one, every case which has considered union representation of a class in the face of a counterclaim alleging union liability has denied class certification. See (counterclaim alleging breach of the collective bargaining agreement for the union’s failure to submit the dispute to the grievance procedure did not create the kind of concrete conflict that would prevent adequate representation); see also (union having separate counsel obviates any conflict of interest).
It is equally clear that the attorneys representing the individual plaintiffs, the law firm of Hunt & Cochran-Bond, may not represent both the plaintiffs and the DGA. In view of counsel’s duties to give their undivided loyalties, avoid the appearance of impropriety and, in a class action, pay scrupulous attention to the interests of the class, representation of parties with substantially adverse interests is inappropriate. Even if both the DGA and the class plaintiffs consented to the representation by Hunt & Cochran-Bond, it cannot reasonably be said that “the representation will not be adversely affected” and thus the law firm may not represent both clients.
In their supplemental memoranda, plaintiffs’ attorneys indicate their desire to continue representation of the plaintiff class, while allowing the DGA to secure new counsel. However the prior representation by Hunt & Cochran-Bond of both the class plaintiffs and the DGA implicates a number of issues of professional responsibility. n3 Specifically these issues include (a) representation adverse to a former client, ABA Model Rule of Professional Conduct 1.9; (b) receiving compensation from one other than the client, Model Rule 1.8(f); and (c) lawyer as a witness, Model Rule 3.7.
n3 The Model Rules of Professional Conduct, adopted by the House of Delegates of the American Bar Association in August, 1983, are applied by this Court when determining whether counsel must be disqualified.
a. Representation adverse to a former client. Model Rule 1.9 provides:
” HN11 A lawyer who has formerly represented a client in a matter shall [*24] not thereafter:
(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 [confidentiality] would permit with respect to a client or when the information has become generally well known.”
There are a wide range of concerns which underlie the prohibition against representing a client whose interests are adverse to a former client. A lawyer’s duty to a client continues past the termination of the lawyer-client relationship and adverse representation potentially violates the attorney’s duty of undivided loyalty. Representation against a former client also presents a risk that confidential information may be used to the detriment of the former client. Finally, the proscription against representing another person against a former client is based on fundamental fairness to the client and maintaining the integrity of the bar and judicial system by avoiding the appearance of impropriety. In this regard, the court must balance the client’s right to choose his own counsel against its obligation to “safeguard the integrity of the judicial process in the eyes of the public.”
All of these concerns operate here. In their papers and at oral argument, Hunt & Cochran-Bond has asserted the position that the defendants’ counterclaims are without merit and that the DGA is not responsible for any discrimination which may exist in the television or motion picture industry. At the same time, by virtue of its representation of the DGA the law firm has had access to confidential information which may disadvantage the DGA in this litigation. Additionally, Mr. Hunt was apparently involved in negotiations on behalf of the DGA which led to the signing of the 1981 collective bargaining agreement and he would thus be privy to confidential information concerning those negotiations.
Even where, as here, the former client’s interests are adverse to the present client’s and the two are involved in the same matter, Rule 1.9(a) provides that an attorney may continue his representation if the former client consents after consultation. To this end, Hunt & Cochran-Bond submit the declaration of the DGA’s President Michael Franklin who states that “the DGA has no objection to attorneys Hunt and Cochran-Bond continuing to represent the interests of the individual plaintiffs and the putative class.”
Whether Hunt & Cochran-Bond may continue representing the named plaintiffs is measured by the standard applied to representation of present clients with adverse interests. Disciplinary Rule 5-105(C) allows a lawyer to represent multiple clients if it is obvious that the attorney can adequately represent the interest of each client and if each consents to the representation after full disclosure. In this case, it is conceivable that full disclosure could be made, and consent could be obtained, from the named plaintiffs individually. Disciplinary Rule 5-105, part of the ABA Model Code of Professional Responsibility, was replaced in 1983 by Model Rule of Professional Conduct 1.7 which provides:
“(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the-24-lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.”
Receiving compensation from one other than the client. Model Rule 1.8(f) provides that “[A] lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents after consultation; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.” Hunt & Cochran-Bond has declared that it received compensation from the DGA for services rendered in this case. There is nothing before the Court which suggests that counsel’s professional judgment will be impaired or that confidential information will be revealed in violation of Rule 1.6. Thus, if the law firm discloses the fact that compensation has been or will be provided by the DGA and the individual plaintiffs approve, representation of the plaintiffs by Hunt & Cochran-Bond would not be inappropriate.
Model Rule 1.6(a) provides in pertinent part: “(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation . . .”
c. Lawyer as a witness. Defendants assert that Mr. Hunt, who participated in the negotiations leading to the signing of the 1981 collective bargaining agreement, must be disqualified because he may be called to testify at trial.
Model Rule 3.7 provides in pertinent part: “(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; and (3) disqualification of the lawyer would work substantial hardship on the client.” The rule seeks to avoid the appearance of impropriety, protect the opposing party from prejudice, and guard the integrity of the attorney’s advocacy by preserving the distinction between advocacy and testimony. Under the Model Rules, an attorney must be disqualified only if counsel is likely to be a necessary witness. So long as Mr. Hunt’s role in the collective bargaining process and the possibility of his being called as a witness — together with the probability of his being disqualified as trial counsel should that possibility materialize — is disclosed, there no reason for his disqualification at this time. Thus, Hunt & Cochran-Bond may continue to represent the named plaintiffs if the firm receives informed consent both from them and from the DGA.
However, in a class action the court has a special obligation to assure representation that is unfettered by even the appearance of divided loyalty. See the DGA’s dismissal as a class representative but its continued presence as a counterclaim defendant, the dual capacity in which plaintiffs’ counsel were cast makes it impossible to wipe the slate that clean.
In its supplemental brief, Hunt & Cochran-Bond made two proposals to remedy any problems raised by these ethical considerations: first, a separate subclass was to be formed and represented by separate counsel to prosecute the suit against the DGA; second, notice was to be provided to the class members informing them of the possible conflicts and allowing the individual class members to give their consent to Hunt & Cochran-Bond’s representation. While possibly explicable to, and waivable by an individual acting solely in his own interest, I am not persuaded that any form of notice could adequately explain — or eliminate — the taint of conflict. That being the case, it cannot knowingly or intelligently be waived by members of the class. Nor would creation of a subclass, cumbersome under the best of circumstances, be a sensible solution. The subclass proposed would be coextensive with the main class and would exist solely for the purpose of hiring new counsel, considering DGA’s complicity, and prosecuting claims against the DGA. The only net gain from such a procedure would be preserving Hunt & Cochran-Bond’s role as counsel for the class; in this case, that appears contrived (since their historic client has been the DGA) and unnecessary for assuring their continued input as that could be accomplished either by their representing the DGA or appearing as amicus.
Accordingly, IT IS HEREBY ORDERED that
Plaintiffs’ motion to certify the class is denied;2. The DGA is dismissed as a class representative;
3. The law firm of Hunt & Cochran-Bond may continue their representation of the named plaintiffs in accordance with the requirements for client consent set forth above; and
4. A further status conference in this case shall be held September 20, 1985 at 8:30 a.m.
On May 12, 2015 The New York Times published a 15-page letter, from the American Civil Liberties Union to the U.S. Department of Justice EEOC and two state agencies calling for an industry-wide investigation into Hollywood’s rampant discrimination against women directors.
That letter will almost certainly change the landscape for women directors forever.
Just four months previously, America’s top feminist film critic, Manohla Dargis, had written in The New York Times (1-21-15) that our industry’s “…refusal to hire more female directors is immoral, maybe illegal, and has helped create and sustain a representational ghetto for women.”
The groundbreaking news of an imminent investigation—to be perhaps the biggest of its kind in US entertainment history—rocked our industry.
It was an extraordinary moment for me, and the culmination of 4 years of full-time, unpaid work.
The next morning, I woke up to a buzzing phone and a photo of myself on the front page of The Los Angeles Times.
The opening paragraph read:
“On Valentine’s Day two years ago, film director Maria Giese met with U.S. Equal Employment Opportunity Commission staffers in downtown L.A. to talk about an issue she said was stalling her career — gender discrimination.”
I knew I had accomplished something very significant, but I also understood that the road ahead would be a long one.
It had been a long journey already, and an often nerve-wracking rollercoaster ride as I challenged the industry and my own union, the Directors Guild of America, in an insurgence The New York Times called “a veritable crusade.”
In 2011— I had finally reached the end of my tether. I was broke and depressed and angry. I did not feel I could sink any lower. I did not believe I had anything left to lose.
I walked into a Directors Guild of America Women’s Steering Committee meeting asking questions and demanding answers.
What I found was a dead committee, apathetic and fearful women who could not imagine a future of equality, and a Guild that was hostile to change.
The few women on the committee who understood the problem, like my friends Melanie Wagor and Rena Sternfeld, were openly snubbed by the co-chairs.
I knew at once that we had a big problem. Something was rotten in Denmark.
There were no feature directors active on the committee when I arrived, and I was later told that the few who had attended meetings in recent years had given up in despair.
For women feature directors like me, the numbers were the worst of all, yet it would be almost two years before we knew exactly how bad. The statistics were simply not broadly available yet.
Today we know: a recent USC study found that only 1.9% of directors of the top-grossing 100 films of 2013 and 2014 were women.
1.9% directed by women. That means 98.1% of America’s top studio features are coming from the perspective of men.
Only about 4% of all feature films produced by our six major studios and three mini-majors are directed by women. Almost 0% by women of color.
And almost 100% of that 4% of female studio feature directors are movie stars or the wives or daughters of movie moguls.
So where does that leave us regular women directors? Where does that leave the next generation of American women filmmakers?
Twenty-one years ago— in the spring of 1994, Frances Ford Coppola handed me my Master of Fine Arts degree from UCLA’s Graduate School of Film & Television.
He shook my hand and he said: “Good luck.”
I was graduating at the top of my class, having won many of the top awards and scholarships available to students at the time.
Better than that, I was just months away from being green-lit on the first of my two feature films, the two-million-dollar budgeted British feature film “When Saturday Comes,” starring the great British actor Sean Bean and Oscar nominee Pete Postlethwaite.
What I didn’t know was that the following year—1995—would mark the peak of female director hires in the United States.
For the next 20 years, women directors would face stasis and decline in employment. And I would experience that in a very real way.
I was literally stepping out of film school (in a class of about 50-50 male and female students) onto a professional playing field that was almost vertical.
Based on the numbers then and today, women film school students cannot reasonably hope to ever get a feature film directing job after graduation.
As I was quoted as saying in the LA Times a few months ago: “It’s not that it’s an unequal playing field; there is no playing field at all.”
Something had to done and when I looked around, there wasn’t anyone else to do it except me. I could risk my own career (whatever there was left of it), but I couldn’t expect other women directors to do the same.
So in 2011, I started my own blog to collect and publish the stories of other women directors like me, and to publish my own articles. It was the beginning of my “crusade.”
And I knew I could not do this for myself.
It would only work if I did it for all women, for the next generation of women filmmakers, and for little girls like my daughter, Bea, who today is nine years old.
My blog was disseminated by social media— and it was advent of social media that made it possible to bring us women directors together into a community that had never existed before.
Social media also brought us together with other women who had already been working for years on Hollywood gender equity:
–Geena Davis and her Institute on Women and Gender in Media
–Jennifer Seibel Newsome’s Miss Representation
–And the relentless Melissa Silverstein of Women and Hollywood.
They were already speaking forcefully about the under-representation of women in the industry and that was great.
In my mind, however, the connection had not yet been made between gender disparities on the screen and the lack of women directors behind the camera.
The absence of women directors was the lacuna, I thought— the missing link.
Jane Campion said it best:
“(Women) gave birth to the whole world. Without them writing and being directors, the rest of us are not going to know the whole story.”
The essential proliferation of the female point of view could change the world.
Okay—I have a confession to make: The Directors Guild of America doesn’t like me much.
This is true because I know one thing for sure that they don’t want to fess up to themselves:
Hollywood studio executives and showrunners are not the only ones to blame for the fact that women directors don’t get hired.
The real problem is a blockage in the diversity program at the Directors Guild of America.
Look, we all know that women are discriminated against in almost all sectors of our global society. We know there is a gender bias that keeps male—and especially female—executives from hiring more women.
Discrimination against women exists, and it is prevalent in every industry in our country.
So why is it that of all the industries in the United States of America, liberal Hollywood has the worst numbers of all?
We know quotas are illegal, and who doesn’t hate affirmative action? But what’s new? Every industry in America is like that.
So why is the problem of discrimination against women so much worse in Hollywood than anywhere else? What’s different here?
Paris Barclay, our current DGA president and a phenomenally successful TV director, helped establish the DGA Diversity Task Force in 2004.
This is our union’s primary committee designated to make Guild signatories comply with Title VII and hire more women and minorities.
Even so, after 11 years of heading up the DGA Diversity Task Force, he came across as being confused about the issue of women directors when talking to The New York Times last January.
According to Manohla Dargis, in responding to a question about why he, the president of the DGA and head of the DGA Diversity Task Force, was getting so much directing work while female director numbers were so low–
Barclay said with a laugh: “The number one director was me, that’s true. I’m a black, gay man, so I’m virtually a woman.”
And since women are not a minority, why are they clumped together with ethnic minority men in the DGA diversity program? Shouldn’t women DGA members be broken out into their own category?
Paris Barclay said: “We really believe in this particular fight that solidarity is the way to go.”
Dargis made the astute observation: “Solidarity is a seductive word, but it can also obscure the differences between sexism and racism.”
Consider this: Women make up 51% of our population. Minority men make up 18% of our population. So why are women only directing 16% of TV episodes, while minority men are directing 18%?
And what about ethnic minority women? They make up 19% of the U.S. population, yet direct just 2% of TV shows!
Why were the DGA-studio diversity agreements serving minority men, but failing women utterly?
I wanted to find out the answers to those questions. And I did. But I could not have done it without strong and powerful shoulders to stand on.
In 1979, six courageous DGA women directors became the first women in the history of the US film and television industry to spearhead a class-action lawsuit challenging race and gender discrimination. I named them “The Original Six.”
These women are: Susan Bay, Nell Cox, Joelle Dobrow, Dolores Ferraro, Victoria Hochberg, and Lynne Littman.
They are our own heroes who launched the landmark 1980’s class action lawsuit that sent women director employment numbers soaring from .05% in 1985 (that’s one half of one percent) to 16% in 1995 in just 10 years.
From 1979 to 1985 these women risked their careers to create change for all women in our industry. The work they did altered the landscape for women directors and their teams forever.
There is not a single woman director working in Hollywood today who does not have the Original Six to thank for their jobs.
The work that they did came on the heels of the Civil Rights Movement in the 1960’s, and the Women’s Liberation Movement in the 1970’s. Those were revolutionary times.
Furthermore, their work began a year after the U.S. Equal Employment Opportunity Commission prepared a significant report detailing race and sex discrimination in Hollywood.
That EEOC report stated in no uncertain terms that something needed to be done immediately to mitigate Hollywood’s bias against women and minorities in the industry.
Unfortunately, that report signaled the beginning and end of concerted U.S. state or federal efforts to help solve the problem.
Listening to the “Original Six” and learning everything I could about their work motivated me even more to study up.
I headed to court in downtown Los Angeles and began researching their DGA-led class-action lawsuit against several major studios.
I read the final ruling by California’s 9th District Circuit Court Judge, Pamela Rymer.
In a final judgment in 1985 in favor of the studios, Rymer wrote that while she believed the lawsuit was important and viable and should be continued, she had to disqualify the DGA from leading the class because, in her opinion, the Guild did not share the interests of the women and minorities in the class.
Rymer’s ruling meant that the DGA could not lead the class-action case against the studios because, as a Guild run but its majority white male members, the DGA had an intrinsic system that discriminated against women and minorities as much as the studios did.
The DGA was in no position to be pointing fingers and suing the studios.
It was like the pot calling the kettle black.
Ultimately, as a result of the suit, the DGA and the studios did get together in subsequent Collective Bargaining negotiations to set up diversity agreements and programs in compliance of Title VII.
These programs included TV directing fellowships, mentoring projects, networking programs, panels on various diversity issues, and events to glorify the successes of women directors.
Unfortunately, as time passed, none of these programs were effective for a number of not-so-surprising reasons.
(I have written in depth about this on my web forum, “Women Directors in Hollywood,” so look there for more on that subject).
The important take-away, though, is that after the initial surge in female director employment numbers, from 1995 onward, the number of working women directors fell into stasis and decline.
I said that no one did anything for twenty years, and I guess I’m referring mostly to myself, because perhaps a certain measure of complacency on the part of my generation of American women figured into it.
I believe in my heart that that must be true, because 20 years ago when I entered the profession I didn’t see any community of women filmmakers to join, and I didn’t try to create one.
My generation did not seem to carry forth the torch of women’s liberation and equal rights as exemplified by “The Original Six.”
So, four years ago, it seems to me, I woke up…
I remember in 2012, walking into a DGA National Board meeting and introducing myself to then Guild president Michael Apted, and Vice President Steven Soderbergh.
Pete Postlethwaite had just died after a long battle with cancer.
Apted and I had both worked with him on feature films and TV series’, but when I told them about my interest in getting women directors back to work, their eyes glazed over.
“Yeah, women and everyone else,” Soderbergh said.
It turned out that the only immediate support I could find was from a handful of underemployed women directors who had also hit rock bottom.
That said, the support from those women was immense, and it was from that foundation that a whole community has been built.
Soon, our efforts became a cause—
And then, thanks to the ACLU and mainstream media, a movement.
Our first major step was to produce the DGA Women Directors Summit, held at our Guild headquarters on March 2nd of 2013.
Putting this event together was very challenging, but when we finally overcame the obstacles, it was the biggest event ever held for women directors in the nearly 80-year history of the Guild.
The event was a huge success, and even though the DGA would not allow us to include the press, the entire industry sat up and took note.
And while it was the beginning of a palpable shift in our perceptions about the power of transformation we could create, it also signaled unwelcome change to the DGA leadership.
Immediate repercussions to our success included mandated new ByLaws to prevent women from speaking out.
Today, if you haven’t been able to get a job in 7 seven years, you are cut from full membership in the Guild, and you can’t run for elected office, not even on the very committee created 35 years ago specifically because women so often can’t get work for seven years running.
Why this blow-back?
The directing profession is incredibly competitive no matter how you look at it, and if we women start getting our fair share of jobs, it’s going to cut into the giant piece of pie that white guys comprise—the guys who make up the vast majority of the DGA membership.
In other words, white guys need to keep minority guys off their turf, and minority guys need to keep women off their turf.
So, the few highly-employed women who have a piece of the action know their pool is limited, and they feel they have to keep new, incoming women shut out.
In the end, guess what? Women as a group suffer. We all suffer.
But what if—and just think about this for a moment—what if women had their own diversity category that DGA signatories had to hire from in order to comply with America’s equal employment opportunity law, Title VII?
And that brings me to the very heart of the battle I’m fighting right now, and it’s really important.
This disparity in employment advancements between women and male ethnic minorities is due to the fact that women get buried under the general category of “Diversity.”
Studios and signatories can fulfill diversity agreement obligations simply by hiring male ethnic minorities, and without hiring women at all.
In an effort to end this loophole that makes it so easy to keep women shut out of directing work, I proposed that the DGA create a separate DGA-studio diversity mandate for women.
I asked that upcoming DGA-studio Collective Bargaining Negotiations include working toward establishing a new double-mandate system to break women out as a separate category from minority men.
In this way, studios would have to hire women directors as well as ethnic minority males.
Significantly, this would also provide a numerical edge to ethnic minority women since they would then qualify for two diversity pools: once among women of all ethnicities, and again among ethnic minorities of both sexes.
A group of us fought this battle in the Women’s Steering Committee last spring. We proposed the motion to break women out, but the co-chairs managed to delay the discussion to the following month.
The final meeting was a circus. The Guild leadership stacked the room. Fur started to fly. Threats were made to have women on our side escorted from the meeting by DGA guards.
The feature director, Lexi Alexander, grew so frustrated she started live-Tweeting the meeting.
One observer on Mentorless.com wrote in amazement:
“Lexi Alexander live-tweeted the session, and re-tweeted live reactions. I don’t think this has ever been done before (…) From Alexander’s tweets, it seems that the room was mostly composed of women filmmakers, and yet, (the motion) was denied. How did they justify it rationally in their heads, I don’t know.”
Alexander’s final Tweet said simply:
“We lost the vote. I’m done.” She has never attended another WSC meeting.
We lost the battle for independence and democracy in our Women’s Steering Committee.
And so far, we have lost the battle to break women out, but this is a result we will only get through legal action. And legal action is coming…
In the overarching war, however, we are already way, way ahead.
The groundbreaking ACLU letter has tipped the scales, and American media knows it.
Our social media and mainstream media is now bursting every day with new articles, documentaries, commentaries and postings about Hollywood’s refusal to hire women directors.
There is so much daily content, you can’t even take them all in. The expression “Woman Director” has become a household term.
The hardest part has been accomplished. We’ve got the ACLU on our side, and our nation’s most powerful state and federal agencies are committed to helping us create change.
Let’s give them all the support we can by keeping our voices strong and or vision steady.
We know what we have to do: SPEAK OUT!
As Victoria Hochberg recently proclaimed to a standing ovation at the DGA—
Hollywood approaches increasingly dangerous crossroads for Title VII violations with the convergence of the reelection of DGA president Paris Barclay last week (who has repeatedly demonstrated recalcitrance on gender equity), for sale and imminent meetings between a proactive ACLU and cooperative officials at state and federal agencies, patient such as the EEOC.
While women’s rights activists have much to hope for, sales with immense support from media, politicians and civil liberties attorneys, the Directors Guild of America continues to block an already challenging road to gender equity as it protects a compromised diversity program in the Guild and complicity with the studios in excluding women directors.
In the past 20 years the DGA diversity program has served as little more than a foundation for personal advancement for the current DGA president, Paris Barclay, while the Guild’s female director employment numbers have languished. Now is the time to act for DGA members and leaders concerned with the reputation and renewed integrity of the DGA as the richest, most powerful union in Hollywood, perhaps the world.
In 1995 Paris Barclay entered a power struggle with civil rights activist and LA Rebellion director, Jamaa Fanaka, who had founded the DGA African American Committee a year earlier and was an avid fighter for increased employment for women directors. The current DGA Executive Director, Jay Roth, was also brought into the Guild that year to help expel Fanaka from the Guild.
By 1998, with Fanaka officially out of the Guild, Barclay took over the African American Committee, and led the DGA diversity program into a 20 year run of closed door policies that advanced Barclay and a system of cronyism that left the vast majority of 1,250 women director members shut out.
In 2004 Barclay created the DGA Diversity Task Force with then Guild president, Michael Apted. This new committee posed a massive conflict of interest within the industry, placing TV directors (like Barclay himself) who were actively seeking open assignment directing gigs, in the position to interface with studio executives and show runners, and demand studio compliance with DGA-studio diversity agreements, Article 15 of the DGA Basic Agreement and Article 19 of the FLTTA.
The result was a rapid rise in the employment of ethnic minority men, and stagnation and decline for female director employment. Today ethnic minority men, who comprise 18% of the U.S. Population, and 7% of DGA director employment, direct 18% of episodic TV shows, Hollywood’s fastest growing and most lucrative production sector in the industry.
Women, on the other hand, who make up 50.8% of the population, and comprise 13% of the DGA director membership, helm just 14% of the TV directing jobs– a 2% drop from 20 years ago (1995) when Barclay began his ascent to power through DGA diversity. Women of color today shockingly direct only 2% of that 14% total.
An effort this spring to break women out as a separate category from ethnic minority males was thwarted by Barclay when he recruited African American women from the DGA African American Committee to stack the room of the DGA Women’s Steering Committee during a crucial vote designed to advance women DGA members of all ethnicities.
This interference with democratic due process within the Guild successfully blocked an important motion that could have led to the creation of an essential double mandate system in which women of all ethnicities would be treated as a separate group from minority males.
If the motion had passed, women of color would have gained a much needed numerical edge by qualifying for two employment pools: 1) women directors of all ethnicities and 2) minority director of both genders.
Prior to the meeting at which the motion was presented, Barclay told women in the African American Committee that the motion would lead to divisiveness among men and women of color, using a vocabulary reminiscent of that of Frederick Douglass in debates with female suffragettes nearly 150 years ago, when women were left behind in the fight for suffrage.
Minority men won the right to vote in 1869, while women were forced to wait over 50 years, three more generations, to achieve that same right. Barclay, it would seem, thinks women of all ethnicities should walk ten steps behind their men.
Few could have predicted the explosive success of television and new media 20 years ago, and therein lies the genius of Barclay’s extraordinary rise to power on the backs of women and all people of color, particularly women of all ethnicities.
On May 12, 2015, The New York Times broke the story of the historic ACLU letter addressed to state and federal agencies on behalf of women directors. The letter was released to the media on the same day that the DGA held their Annual Members Meeting, led by Barclay.
During the meeting Barclay did not once voluntarily mention the advent of this groundbreaking letter calling out the U.S. media industry for what today’s statistics point to as our nation’s most egregious violations of Title VII.
The reputations of liberal Hollywood’s most powerful leaders, as well as our nation’s greatest leaders must come together to root out corruption and cronyism among the leadership of Hollywood’s highest organizations to allow our Department of Justice, the EEOC, to do its job and enforce Title VII.
America’s reputation as a protector of equal rights in the global theatre depends on it. Hollywood’s media content stands as America’s most influential export. Our films, television product and new media are a large part of the voice of our whole civilization.
Equal gender perspective in our media is a critical aspect of giving voice to the silenced half of our world’s population. Change must start with pressure on the leadership of the Directors Guild of America.