Women Directors: Can We Sue The Studios?

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The Sign on the Sound Stage Door: “No ______ Allowed”

By Maria Giese

In recent months, numerous articles have brought into focus the marginalization of women in Hollywood. Most of the articles emphasize the surprising box office success of films featuring women and girls as the lead characters in contrast to the relative absence of women in many other areas of the filmmaking process. The conclusions, more often than not, suggest that the disparity stems from the fact that so few women are actually directing the films that are being made. While the writers of these articles are to be applauded for bringing attention to such an important concern, few have suggested a solution to the problem.

Women directors in Hollywood have long been deeply concerned about the extraordinary disproportion in the ratio of male-to-female directors. According to Dr. Martha Lauzen (executive director of the Center for the Study of Women in Television and Film at San Diego State University), “There are more women in the U.S. Congress than there are women directors in Hollywood.” The numbers are so striking that even the most hardened skeptic must now stop and take note. Women are badly under-represented as directors of film and TV, while media is arguably America’s most culturally influential export around the globe.

One can come up with many noble reasons why there should be parity between the sexes among male and female film directors: the importance of having diverse perspectives in a culture, the validity of the female point of view around the world, and basic fairness. The fact is that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex. Discrimination against women in the film industry is against the law in the United States of America.

In recent decades, women have made great strides in many professions: in the military, government, the corporate world, and in universities where male-to-female professorships have been moving in the direction of more balanced ratios. In the film industry, however, the ratio of male-to-female working directors is more dismal than ever before, and the ratios certainly do not come close to reflecting the fact that women make up fifty-three percent of the population and a similar percentage of film school graduates. In episodic TV, women directors represent just twelve percent of working directors. In feature films, women make up a staggering five percent — ninety-five percent of feature films are helmed by men (Lauzen, 2011 Celluloid Ceiling).

Ending discrimination against women directors is vital to establishing a society of equality, diversity of perspective, and perhaps most important of all, excellence. The argument for maintaining excellence is critical; in order for producers to select the best directors available, it is essential that the pool of available directors be as large as possible. If they limit their selection pool largely to men, they will have to dig deeper into that pool and select less talented directors than if they were able to skim from the best of the best of a pool that includes the most talented women and men.

Among the most surprising facts revealed by recent statistics is that while there are fewer women directors of feature films, there are more women executives than ever. It is not just men that must be convinced of the equality of talent between male and female directors, it is women executives and producers, too. Actor/Director Jodie Foster was recently quoted in The Mary Sue as saying, “And name the lists that come out of the female studio executives: guy, guy, guy, guy. Their job is to be as risk-averse as possible. They see female directors as a risk” (April 21, 2012).

Experts on diversity and discrimination, particularly in academia and science, often speak of the “Leaky Pipeline” in which the number of male and female students in college and graduate programs is roughly fifty-fifty, but after graduation women get lost in an ever-increasing number of leaks in the pipeline on the way to the top. Pursuing that metaphor, there are few industries in the United States with more leaks in their pipelines than that of the film industry. Women in the film industry have simply not taken on the battle yet, but we must. Some say the time is now.

There are many organizations that represent women directors, including Women in Film, the Alliance of Women Directors, and Women Make Movies. The Directors Guild of America Women’s Steering Committee has the potential to be as influential as any of them. According to the DGA, the Women’s Steering Committee was created in 1979 with six female DGA members who wanted to know specifically what the ratio was of male-to-female working DGA directors. The following year, they presented a report that indicated the possibility of discrimination against women directors in Hollywood. The DGA made several failed efforts to encourage studios to adopt programs of affirmative action, including asking studios to hire one woman per thirteen TV episodes.

Eventually, the DGA resolved to file a class-action lawsuit against two major studios, Columbia and Warner Bros., but not just for women: they also decided to include male ethnic minorities in the suit. Unfortunately, in August of 1985, Judge Pamela Rymer, U.S. District Court Judge for the Central District of California, ruled in favor of the studios. It is critical to understand that she did not rule on the issue of whether or not discrimination existed. Rather, she ruled on counter-claims that the two studios had filed.

As reported in The Los Angeles Times (11-17-86), “The studios argued that the DGA contract gives directors the right to select the first assistant director, and the first assistant the right to select the second assistant. Thus, the studios could only hire the director, not the assistant directors. How could they be accused of discrimination if they couldn’t do all of the hiring? Judge Rymer ruled on this claim rather than on the actual issue of whether discrimination had occurred.”

Now, thirty years later, in the midst of economic instability and with even fewer women directing feature films, one must question the possibility of discrimination once again. If discrimination is against the law according to Title VII of the Civil Rights Act of 1964— and indeed it is— then now may be the time to take action.

In a recent correspondence about this issue with long-time national VP of the Directors Guild of America, Ed Sherin made the following comments: “Much the same argument was made during the early years of my tenure as National VP. Your extensive comments are invaluable to further clarifying these issues. I hope you are successful where we were stupefied by our inability to move the issue forward. The legal complexities are stultifying. I hope you have actually opened the can of worms.”

Prying open the can of worms might be introduced following a relevant argument published in the “Cardozo Journal of Law & Gender” by Marisa Rothstein (2011). Her proposal involved female Playwrights on Broadway, but the same argument may easily be applied to women directors in Hollywood. The case would involve pulling together enough statistical evidence to find an inference of discriminatory intent by the studios. This could be accomplished by comparing the number of male vs. female directors who have been employed on feature films from 1983 to present in relation to the pools of available directors.

Using a mathematical equation known as the “null hypothesis,” the courts could apply a binomial distribution test to determine gross disparity in the ratio between male and female directors. The larger the standard deviation— the gap between the null hypothesis and the numbers of female directors— the less likely it is that the studios chose their directors in an unbiased way. If this resulted in the suggestion of the presence of sex discrimination, female directors may perhaps establish a prima facie case for discrimination under Title VII.

It is not in the interest of the DGA that a class-action lawsuit be brought against the studios. The studios are, of course, are keeping some thousands of members of the guild fed and clothed; why would they attack the hand that feeds them? They would not. However, if someone else were to file the suit, it would be very embarrassing to the DGA. It would badly tarnish the image of the guild if they were stand by and do nothing to support the cause of discrimination against any of their members. They would probably prefer to do again what they did in the 1980’s—that’s is take over the suit and handle it themselves with diplomacy. The result, of course, would no doubt be the same—they would lose.

If the class-action group were to refuse to allow the DGA to take command of the suit, the DGA would likely be forced to file an Amicus Brief, a “friend out of court,” ie. an entity with strong interests or views on the subject, but not a party to the action. Filing an Amicus Brief would not only cause conflict between the guild and the studios, it would cause conflict among the DGA members who are not likely to benefit from the suit. Many white male directors, from whom directing jobs would have to come if parity with women is even remotely attained, would bitterly object to guild support of the case. That would not be so problematic, except that the DGA is controlled almost entirely by precisely those powerful, white male directors.

Yes, it is a far better option for the DGA to place their energies in preventative efforts to keep women from pursuing this very plausible court action. Everyone suspects that with the troubled economy, and the further marginalization of women directors, the number would show now, perhaps more than ever before in history, that studios are in egregious of the Civil Rights Act of 1964, Title VII. Now, by many standards of logic, women can win. But a tougher question is: can women get going? Are women willing to fight fear of reprisals from studios, production companies, episodic TV producers and show-runners? More daunting than that, will women overcome their dread of acting in discordance of the urgings from their guild, which for most of DGA members is a beloved entity for which their membership is a mark of distinction and honor?

However, in the event that the studios proved unable to rebut such a presumption, women directors could make a claim against producers and ask for equitable relief. If nothing else, as Rothstein suggests, this effort might result in helping bring attention the plight of women in American film. Our new millennium is an era in which the media influence the way people around the world look at crucial issues, global and local. We need now, more urgently than ever before, to appeal to men and women in the film industry to correct this imbalance. Taking action now could change the course of history for women in film around the world.

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