United States: What #OscarsSoWhite Teaches Us About Disparate Impact

I have to admit that I'm just not a big fan of awards shows, and that includes the Academy Awards. Don't get me wrong, I love movies. But I find awards shows dull and way, way too long. If something extremely funny happens, or someone makes an incredibly touching or socially impactful speech, I can frankly watch it the next morning on the Internet.

Yet, despite my lack of interest in awards shows, it's hard to ignore the controversy surrounding the most recent Academy Award nominations announced a couple weeks ago. For the second year in a row, all 20 contenders in the acting categories are Caucasian. Last year, this resulted in the trending hashtag #OscarsSoWhite, which not surprisingly has been resurrected again this year. There was of course immediate backlash to the nominations. Numerous individualsboth white and of colordecried the lack of diversity in not only the nominations, but in the industry itself. Certain celebrities made public their intention to boycott the awards. It has become somewhat of a social media frenzy as everyone has chimed in with their opinion.

Some corners place the blame squarely on the Academy, for its own lack of diversity in its membership, and therefore the lack of nominations for people of color. Others place the blame on the industry itself, and that the lack of diversity at the top of studios and other positions of power results in a dearth of movies with diverse casts and diverse issues being produced.  Most believe it's a combination of the two as well as other preconceived notions and stereotypes about what the general public will pay to see.

Not being a Hollywood insider myself, I can't definitively provide an answer as to the root of the issue. But I can certainly understand the concept of stereotypes and preconceived notions affecting a studio's judgment as to who should play a certain role. As an Asian-American, I've unfortunately become accustomed to the fact that when I see an Asian actor prominently featured in a domestically produced film, he or she will most likely be good at martial arts, or be some villain involved in an dangerous Asian gang, or both if possible. Otherwise, it will be a minor role as an asexual academic or scientist. That's why it's refreshing for someone like me to watch a character like Glenn from The Walking Dead.

As in the comics the show is based on, Glenn is Asian and sort of just a normal guy, which I can relate to. Specifically, Glenn is Korean (as am I), he doesn't know martial arts (I don't either), he seems smart but was  just a regular Joe delivering pizzas before the zombie apocalypse (I love pizza), he's got a wife/fiancé [he proposed but the show hasn't shown any wedding] and they're having a kid together (I have a wife and kids), and he's a lead role in one of the most watched shows on TV (I dream about being this sometimes). The fact that the comics, and then the show, recognized that this prominent character could be portrayed by someone Asian, despite the fact that the character wasn't written with stereotypical Asian characteristics, is rather refreshing to someone like me. So I can understand the frustration that other minorities have regarding the lack of diversity in movies today.

In response to the criticism, the Academy announced it would be taking additional and affirmative measures to increase the diversity in its membership. President of the Academy Cheryl Isaacs, who is African-American, announced a variety of new measures that they anticipate will double the number of women and diverse members of the Academy by 2020. President Isaacs stated in her announcement that "the Academy is going to lead and not wait for the industry to catch up."

These are words that every employer should keep in mind. In other words, be proactive. Anyone who is reading this can agreewhether or not you believe there were illicit motivations that resulted in the nominations, there is no dispute that 40 acting nominations over two years to all Caucasian individuals is going to cause some questions about whether diversity is being represented.

For employers, this is known as disparate impact. Employers can be liable for discrimination against employees on theories of disparate impact or disparate treatment. We all know what disparate treatment is– the intentional, or proven intentional, discriminatory treatment of an employee. Disparate impact, on the other hand, refers to policies, practices, rules, or other systems that appear to be neutral but result in a disproportionate impact on protected groups. Simply put, disparate impact is a way to demonstrate employment discrimination based on the impact of an employment policy or practice rather than the intent behind it.

If the Academy were an employer and the actors in every film produced were its employees, there would be a sufficient basis to contend that the nomination process, policy, and procedure had a disproportionate impact on protected groups, evidenced by the fact that all 40 positions were filled by Caucasian employees. This isn't to say that the Academy would be automatically liable, but this fact would be enough to bring such a claim, thereby requiring investigation and discovery into all aspects of the process, an expensive litigation to defend even if ultimately successful.

As a result, employers should not only regularly review their policies and procedures but also conduct an analysis as to whether there are any disparate impacts in their workforce, whether it be hiring, termination, promotion, pay rates, or any other aspect of an employee's employment. Obviously, the size of the employer's operation will dictate how often, or how widespread, such an analysis needs to be. By acting proactively, the employer can determine whether there are any flaws in their own procedures and, if there are issues, make the appropriate changes before any significant problems arise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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