Discrimination at the Oscars – is there a case to answer?

Discrimination is often thought of as one of those ‘easy to spot but difficult to define things’ – you know it when you see it, because, well, you just know.


No black Oscar nominees in the 88th Academy Awards – the Academy must be racist.  Simple?

Well, not quite. 

Defenders of the Academy have pointed to the 32 previous black winners; from Sidney Poitier (Lillies of the Field, 1963) to Lupita Nyong’o in 2013 (12 Years a Slave, 2013) and everyone in between. 

And what about Whoopi?  If a black winner (Ghost, 1990) states the Academy is not racist, it can’t be racist right?

Again, not quite that simple.  The fact there have been black winners (and that some of them defend the Academy) doesn’t automatically equate to no discrimination.

So you take the point: discrimination is not only difficult to define, but actually very difficult to identify in the first place. 

It’s a complex concept, can take a number of guises, and comes in varying degrees.   Indeed, often it can be so insidious that the person discriminating is not even aware they are doing so. 

So actually identifying whether it is present or not is a real challenge.

That is why so many A-listers are struggling to process the 100% white statistic and appear unable to decide whether to boycott the ceremony or not.


A legal approach

Employment law is one of the few areas which provides a legal framework for defining and understanding discrimination.  

We thought it may therefore assist the court of public opinion by considering the #OscarsSoWhite furore through the prisym of some typical legal approaches.

To establish (or disprove) a prima facie trend or pattern of discrimination it is important to first put the allegations into context. 

In legal claims of discrimination this is often done by an almost forensic analysis of the relevant statistics – the aim being to identify whether there any disproportionate trends or patterns that point towards discriminatory practices.


And the nominees are…

Generally, the wider the scope of the statistical analysis the better, but, for example, focussing purely on the 2 Leading Actor awards, the headline figures for the 2016 Oscars Nominations are:

  • 2 awards

  • 10 nominees (5 in each category)
  • racial composition of nominees: 100% white

Yes, no nominees of any other race.  But, that in itself does not necessarily make the shortlist discriminatory.


Damn lies and statistics

To put the figures into perspective one has to consider the wider context – i.e. what was the pool of potential nominees and what was the racial composition of that pool by comparison?   

The Academy’s List of Eligible Releases for 2015 includes 305 films in total.  Not all of these films have both male and female leads and some are documentaries with no lead roles at all.  The number of lead roles (both male and female) eligible for nomination is 403. 

So there are 403 potential nominees, vying for 10 nominations.

The racial composition of the 403 potential nominees for the 2 Leading Actor Awards is as follows:

  • White – 75%
  • Black – 10%
  • Other – 15%

So the real question: is there a significant difference between the racial breakdown of the potential nominees and that of the chosen nominees to point to a prima facie case of discrimination?

If the chosen nominee list was representative of the pool, in real terms, of the 10 actors nominated: 7.5 would be white, 1 would be black and 1.5 would be of another race.

In view of this, is it unrepresentative to end up with a shortlist that is 100% white?



What to make of it…

Of course, this is a fairly narrow analysis.  To provide a deeper insight one might expand the analysis to all 18 of the Oscar nomination categories.  One could also track the figures over previous years to explore the patterns further.

Also, the statistics alone are by no means conclusive and, there are other (more subjective) factors to consider.  For example, as not all eligible films are realistic contenders, certain films will be lobbied more than others, there may be particular stand-out performances which meet with universal cries for a nomination, etc.

However, the above is a useful starting point in seeking to establish whether or not there is a trend or pattern of discrimination - or a prima facie case to answer.   

Once an unrepresentative trend is identified the next step in a typical legal process would be to look behind the numbers for the potential reasons.  In Employment law the burden would generally fall on the employer to disprove the prima facie case.

Of course, the reasons or causes may well have nothing to do with discrimination, but then again, they may.   

In this case we have the inescapable fact that there so many more white actors in leading roles in 2015 by comparison to other ethnic groups, which was, no doubt a major contributing factor to the eventual shortlist.   

As to the reasons why there are more white actors in leadingroles – that is another issue –indeed, it may well be the real issue.

And on that note, we hand back over to the court of public opinion…