{"id":582763,"date":"2023-07-14T22:40:04","date_gmt":"2023-07-14T19:40:04","guid":{"rendered":"https:\/\/en.buradabiliyorum.com\/hollywood-diversity-initiatives-may-be-challenged-after-supreme-court-affirmative-action-ruling\/"},"modified":"2023-07-14T22:40:04","modified_gmt":"2023-07-14T19:40:04","slug":"hollywood-diversity-initiatives-may-be-challenged-after-supreme-court-affirmative-action-ruling","status":"publish","type":"post","link":"https:\/\/buradabiliyorum.com\/en\/hollywood-diversity-initiatives-may-be-challenged-after-supreme-court-affirmative-action-ruling\/","title":{"rendered":"#Hollywood Diversity Initiatives May Be Challenged After Supreme Court Affirmative Action Ruling"},"content":{"rendered":"
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\n While Hollywood has been a longtime target in the culture wars, this time Fortune 500 firms were hit first. The initial mark was Starbucks. Then it was Morgan Stanley. The Hershey Company and McDonald\u2019s were struck soon after, with BlackRock close behind. Since last year, America First Legal Foundation, a conservative group founded Stephen Miller, a White House policy advisor under the Trump administration, has been filing complaints with the Equal Employment Opportunity Commission against major companies arguing corporate diversity and hiring practices run afoul of civil rights laws.<\/p>\n

\n Now that the U.S. Supreme Court has struck down race-conscious admissions in colleges and universities, legal experts say Hollywood should brace for elevated scrutiny around diversity, equity and inclusion initiatives and that employers in the private sector could see a surge of reverse discrimination complaints. The legal challenges will be bolstered by the court\u2019s reasoning questioning the use of racial preferences in any context.<\/p>\n

\n Legally, the ruling is limited to higher education and likely won\u2019t directly affect companies, which are governed by a separate set of federal and state anti-discrimination laws that don\u2019t allow employers to consider race in hiring decisions. But its impact may soon be felt across Hollywood and beyond, from a shake up in the pipeline of students that the entertainment industry would recruit to a chilling effect on businesses wary of litigation over hiring practices and programs aiming to boost diversity.<\/p>\n

\n \u201cThere will be fights in the corporate setting,\u201d said Neal Katyal, former US acting solicitor general<\/a>, at the Aspen Ideas Festival on June 29 after the order was issued. \u201cThis decision has implications for how corporations think about their DEI programs, their commitments to affirmative action and the like.\u201d<\/p>\n

\n Tristan Morales, a partner at O\u2019Melveny & Myers who leads the firm\u2019s affirmative action working group, notes the ruling\u2019s \u201cripple effects\u201d on employment law. He stresses, \u201cThere will be more lawsuits challenging DEI programs.\u201d<\/p>\n

\n For nearly half a century, race conscious admissions were permitted, in part, based on the idea that there are educational benefits to having a diverse student body. Race was allowed to be considered as long as it wasn\u2019t the sole determinant. The decision from the Supreme Court abandons that premise in favor of a purportedly <\/strong>color-blind app<\/a>roach to college admissions.<\/p>\n

\n The group that brought the suit claimed a violation of the 14th Amendment\u2019s Equal Protection Clause, which protects against discrimination by the government, through Title VI. This part of the Civil Rights Act of 1964 only applies to Harvard and the University of North Carolina because they receive federal funds. Critically, Justice Neil Gorsuch in his concurring opinion draws comparisons between Title VI and Title VII, which covers employment discrimination. Just as lawmakers held in Title VI that a \u201crecipient of federal funds may never discriminate based on race, color, or national origin \u2014 period,\u201d Congress \u201cjust next door, in Title VII\u201d made it \u201cunlawful for an employer\u201d to discriminate against individuals based on those same characteristics, Gorsuch wrote.<\/p>\n

\n William Trachman, who wrote an amicus brief for the Former Federal Officials of the Department of Education\u2019s Office for Civil Rights, says the ruling has broad implications that stretch beyond college admissions. \u201cGorsuch\u2019s concurrence is about how employment law looks a lot like education,\u201d he says, noting he will cite the language in a discrimination suit against the Colorado Department of Corrections. \u201cHe\u2019s explaining that Title VI and Title VII say the same thing in not discriminating on the basis of any characteristic.\u201d<\/p>\n

\n While the majority opinion doesn\u2019t mention Title VII, Chief Justice John Roberts wrote, \u201cEliminating racial discrimination means eliminating all of it.\u201d The message was clear, according to legal observers who spoke with The Hollywood Reporter<\/em>.<\/p>\n

\n \u201cIf I was general counsel at one of these companies, my response would be just to keep race completely out of hiring decisions,\u201d says Jess Miers, legal counsel for Progress for Chamber, which filed a friend-of-the-court brief along with companies including Google, Meta and Paramount, which declined to comment.<\/p>\n

\n The seventy companies that filed a brief in support of Harvard and the University of Carolina argued that diversity at their businesses will suffer because they rely on colleges that practice affirmative action to \u201ccreate a pipeline of diverse leaders.\u201d If diversity at institutions of higher education drops, the same will happen at major corporations that rely on those colleges for new recruits, they claimed.<\/p>\n

\n Julie Shapiro, director of Loyola Law School\u2019s Entertainment and Media<\/a> Law Institute who previously led the legal departments for New Line Television and Endeavor Content, underscores that \u201cdiversity in entry-level jobs will suffer\u201d the most since the decision impacts the pool of \u201ccandidates that the media and entertainment companies have to choose from.\u201d<\/p>\n

\n Litigation remains the foremost concern. The court\u2019s ruling puts DEI initiatives squarely in the crosshairs of prospective or current employees who take issue with programs aiming to boost diversity that may treat people differently based on protected characteristics. The Ladder and The Producers Inclusion Initiative from Netflix and Shondaland could be challenged. The program is \u201cspecifically designed to provide an opportunity for individuals from underrepresented groups to gain onset experience and training\u201d to work as line producers, according to a news<\/a> release issued in April announcing the next iteration of the program. Under the eligibility requirements<\/a> for the job posting, applicants must be \u201cProducers, UPMs, Supervisors, and First ADs who come from underrepresented communities (e.g., BIPOC).\u201d The initiative mirrors a similar mentorship program at Starbucks that is open only to Black, indigenous and other minorities, excluding Asians, alleged to violate civil rights laws by an America First Legal challenge. \u201cWe remain committed to creating a culture of warmth and belonging, where everyone is welcome,\u201d said a Starbucks spokesperson in a statement. Netflix and Shondaland declined to comment.<\/p>\n

\n Amazon Studios\u2019 inclusion policy to cast at least one Black, Latinx, Indigenous, Middle Eastern or Asian character for speaking roles in each project could similarly draw attention. Legal observers note that the use of racial quotas are already prohibited under federal law. \u201cThe minimum aspirational goals for casting across speaking roles are 30% white men, 30% white women and non-binary people, 20% men from underrepresented races and ethnicities, 20% women and non-binary people from underrepresented races and ethnicities,\u201d states the policy<\/a> from the company, which didn\u2019t respond to a request for comment. <\/p>\n

\n Diversity programs requiring applicants to come from certain racial or ethnic groups were on legally tenuous ground even before the Supreme Court\u2019s ruling striking down affirmative action in college admissions, though there\u2019s an exception for temporary efforts that seek to address a \u201cmanifest imbalance in a traditionally segregated job category,\u201d according to court precedent. The Equal Employment Opportunity Commission and Department of Justice maintain that Title VII bars discriminating in all actions affecting the terms and conditions of employment, including those falling short of hiring, firing and promotion decisions, wrote<\/a> EEOC commissioner Andrea Lucas in a Reuters op-ed. The Supreme Court\u2019s ruling could implicate race-conscious corporate DEI initiatives from providing race-restricted access to mentoring, internship or training programs to tying executive or employee compensation to the company achieving certain demographic targets. <\/p>\n

\n Another effort that could be challenged is the Academy of Motion Picture Arts and Science<\/a>s diversity requirements for Oscars eligibility in the best picture category. Starting in 2024, films will have to meet minimum requirements<\/a> relating to diversity and inclusion to be considered. They specifically call for lead or significant supporting actors, general ensemble cast or the creative leadership team, among other roles, to be from historically underrepresented racial or ethnic groups. An individual could sue a studio or production company for employment discrimination, alleging they were turned down for a job because their would-be employer was looking for an Oscar nod. <\/p>\n

\n Such a suit may not get far since it would be difficult to sufficiently allege injury but the possible liability should put Hollywood on alert, according to other legal experts. The same goes for newly-imposed diversity requirements for receiving the full tax benefits of filming in California. Under the state\u2019s budget signed by Gov. Gavin Newsom on Monday, productions will automatically get 96 percent of their tax credit and will get two percent bumps for meeting diversity quotas for below-the-line and above-the-line crew.<\/p>\n

\n \u201cThe ruling gives ammunition to suits like those,\u201d Trachman says. \u201cThe decision rejects the idea of raw racial preferences in nearly every context, and quotas are even more questionable.\u201d<\/p>\n

\n In the wake of increased scrutiny around DEI initiatives, even before the Supreme Court\u2019s ruling striking down affirmative action, companies have been moving away from explicitly mentioning racial diversity. Most programs are open to all applicants regardless of race or ethnicity. For example, The Directors Guild of America\u2019s Director Development Initiative, billed as a program to increase diversity and inclusion among the industry\u2019s ranks, is open to all DGA members. None of Warner Bros. Discovery\u2019s 30-plus diversity and inclusion initiatives appear to restrict eligibility by race. Its Music Supervisor Program<\/a>, described as an effort to \u201cprovide marginalized voices a pathway for entry into the television industry,\u201d says \u201capplicants from historically underrepresented backgrounds are highly encouraged to apply\u201d but does not require participants to be minorities. In place of race, studios and companies may look to adopt first-generation or low-income programs, says Morales. He explains that they would be on solid legal footing as long as the intent is not to use those criteria as proxies for diversity.<\/p>\n

\n Efforts to boost DEI have been waning after they boomed in the wake of protests after the murder of George Floyd. While there was a nearly 170 percent increase in hires for chief diversity and inclusion officers since 2019, the role saw a five percent decline last year, according to a LinkedIn report<\/a>. In the past month, six Black women leading DEI efforts at companies across Hollywood exited their posts. They include Netflix\u2019s Vern\u0101 Myers, Disney\u2019s LaTondra Newton and the Academy of Motion Pictures Arts and Sciences\u2019 Jeanell English. <\/p>\n

\n A key consideration in the Supreme Court\u2019s ruling is that it allows the consideration of racial or ethnic background in someone\u2019s lived experience. It\u2019s impossible to eliminate any mention of race in the admissions process; applicants have to give their names, which could hint at race or ethnicity. Just like how students will leverage their personal essays to describe how race has affected their lives, prospective employees can do the same with their cover letters or elsewhere in the interview process.<\/p>\n

\n \u201cThere\u2019s portions of the decision that said that you can consider hardships that a candidate may have faced or hurdles or obstacles in their life,\u201d says Sahara Pynes, a labor and employment attorney at Fox Rothschild. \u201cThose are pretty common questions for employers to ask.\u201d<\/p>\n

\n Morales echoes, \u201cRace is something employers will still be thinking about throughout the process.\u201d<\/p>\n<\/p><\/div>\n