Why Bias against Creative Women Artists, Composers & Playwrights Falls in A Hole in the Law
Women playwrights, composers and visual artists are locked out from the circle of legal protection against discrimination; solutions to deep-seated bias call for new strategies.
Visual artist Linda Stein tackles all sorts of gender bias in her art when sculpting or painting in her New York studio. She’s envisioned a frill-free wonder woman and created form-fitting female armor that challenges notions of protection and gender.
So it isn’t surprising that Stein rankled at the unforgivably low representation of women the art world: “the higher up you go, the more disparity you encounter,” she said. Finally, she’d had enough, and with a group of colleagues, contacted a lawyer to initiate a sex discrimination claim. The lawyer delivered another blow. She told the artists they had no case under existing law and to try a public relations campaign instead.
“It’s very frustrating and very unfair. Extremely unfair,” said Stein.
Women composers, visual artists and playwrights share three things: abundant creative energies, under-representation in their fields, and a lack of legal protection against discrimination. This recurring conundrum spins out again and again when it comes to addressing gender disparity in the arts.
There is, quite simply, a hole in the law.
“It’s very frustrating and very unfair. Extremely unfair,” said Stein.
Even the most innovative changes to the law to expand the categories of people who are protected from discrimination overlook the needs of these creative artists. For example, a welcome amendment to the New York City Human Right Law in September makes major strides in widening the circle of protection to freelance workers and independent contractors. The new law offers recourse for discrimination or harassment that freelancers might encounter based on age, race, religion, national origin, disability, sexual orientation, gender, gender identity, pregnancy, and other protected categories.
The law, which will take effect in the second week of December, does this simply — by expanding the narrow definition of a covered worker to include people who work for a business independently but are not on the payroll, as well as the already-covered payroll employees.
This is a major step forward compared to the federal law on discrimination, and laws in most other states or cities.
Unfortunately, creative artists are still not covered under the new anti-discrimination law — just like the old law. That’s because the laws all revolve around the maypole of employment, and, with rare exceptions, creative artists are neither payroll employees nor contractors hired to complete a job as if they were employees.
Creative artists are people who are using their imagination and talents to corral ideas and emblazon them in works of art, and who, by virtue of their artistry and independence, hold the copyright and ownership to their works.
When it comes to the laws on sex discrimination, creative artists are in a lonely class of their own.
Women Creative Artists Left Hanging
Women creative artists are also in a class that is vastly underrepresented. This is not news, as is verified by many studies over the years and posted by WomenArts.
Artists who are women (including those who identify as women) face implicit and explicit bias that has shut them out of opportunities and outlets in substantial numbers. Women creators in each of the fields of art, music and theater secure about one-third of the opportunities of men. Where women are represented in greater numbers, it’s in the small galleries, the limited-seating theaters, the more far-flung music programs.
“The truth is that women have never been treated equally in the art world, and today they remain dramatically underrepresented and undervalued in museums, galleries, and auction houses,” writes the National Museum of Women in the Arts (NMWA) in Washington D.C.
A mere one-third of the 820,000 visual art exhibitions in 2018 were by women. On the Artnet list of the 100 best-selling artists at auction, only five women appear. “People in the art world want to think we are achieving parity more quickly than we are,” writes Susan Fisher Sterling, director of the NMWA.
In music, a survey undertaken by the Baltimore Symphony Orchestra of the 22 largest orchestras in the U.S. in 2014–2015 found that only 14 percent of the works by living composers were by women. Of the total pieces performed, women composers accounted for less than 2 percent. A 2018–2019 study of concerts across the globe similarly found that only 2.3 percent of 3,524 musical works performed were by women composers. Ninety-five percent of concerts had a full program with music composed solely by men.
The theater world has seen modest gains in the productions of women playwrights after decades of stagnation that left them in the 20 to 25 percent range. In the 2018–2019 season, women secured 30 percent of play productions, according a survey of the 387 member theaters of the Theatre Communications Group, and hit a high water mark of 40 percent of the writers of produced new plays.
But turn to the large and high-profile venues on Broadway, and women are still missing-in-action — a mere 13 percent of the playwrights in the last year.
Add an additional barrier to gender — age, race, sexuality, disability, gender expression, ethnicity — and the pie rapidly shrinks to an even smaller and smaller size.
Arts Advocates Wonder Where Legal Protections Are
Frustration with the stark disparities that women artists encounter has activated countless rants, meetings and conversations.
Two years ago, playwright @Jenny Lyn Bader compiled an exhaustive review of efforts on gender parity in the theater.
In 2019, Statera Arts scheduled its fourth national conference to support gender parity in theater on October 26–27 with motivational speakers and workshops.
A new group, Honor Roll, formed on Facebook to advocate for the generations of women in theater over 40 who are now encountering ageism, piled on top of the gender bias that has significantly hampered their career trajectories for decades.
Now encountering ageism piled on top of the gender bias that has significantly hampered their career trajectories for decades
In meetings where creative artists churn over gender imbalance in the arts, discussion naturally turns to the law. It seems logical. The law has done much to correct sex discrimination and gender imbalance in other fields. Why shouldn’t it help here? Why can’t some fired-up lawyer take action and dislodge the persistent discrimination and the scourge of bias?
Despite Perception, Discrimination Laws Are Limited
Discrimination laws on gender rely on specific laws, and all of those laws have specific limitations.
The laws limit legal recourse for discrimination to defined groups of people in defined situations. Without falling into the definition of legally-actionable discriminatory behavior, discrimination may — and does — occur, but there is no pathway to the courthouse for relief.
Conversations with experts reveal that creative artists sit outside the framework of the laws, and, as such are without protection for gender-based claims.
Gender discrimination is governed, first and foremost, by federal civil rights laws. State and local laws also provide antidiscrimination measures.
The primary law related to work-related discrimination is Title VII of the Civil Rights Act of 1964. “A lot of our antidiscrimination law is written around an employer-employee relationship,” explained Emily Martin, Vice President for Education & Workplace Justice at the National Women’s Law Center in Washington D.C.
The federal law only applies to certain employers — those with 15 employees or more. Within that, only claims that fall into protected categories are covered — and discrimination based on sex is a protected category. (Two cases now before the U.S. Supreme Court are considering whether Title VII’s “sex discrimination” also provides recourse for discrimination based on sexual orientation or discrimination against transgender people.)
Although there is no record one way or another, you can pretty much bet your last dollar that not a single visual artist, playwright or composer is one of those twenty-plus thousand. That’s because they don’t fit under the definition of a covered employee. Creative artists work independently and are not employees at all.
Creative artists work independently and are not employees at all.
Of course, creatives might be on a staff, for example, as a teaching artist or in a TV writers’ room — and if it is an entity with 15 or more employees, they would be allowed to use Title VII and the EEOC as recourse for discrimination.
People with creative talents who are employees on the staff of an organization have successfully used Title VII to make gender discrimination claims. That’s what 46 women writers employed by Newsweek magazine did in 1970, charging that they encountered systemic discrimination because they were denied the opportunity to write but were instead relegated to doing research for male writers, as described in an article on gender parity by WomenArts. Lynn Povich recounted the women’s action in The Good Girls Revolt: How the Women of Newsweek Sued Their Bosses and Changed the Workplace, which in 2016 was adapted into a series on Amazon.
Most recently, women employees at TV-station Spectrum News NY1 filed a claim of age and gender discrimination in federal court, asserting that they have been pushed aside.
A woman flutist on the payroll of the Boston Symphony Orchestra brought an action under the Massachusetts Equal Pay law, arguing that she was paid less than comparable male musicians in the orchestra.
“You have to be an employee in order to have those protections under federal law. And most states follow that structure,” said NWLC’s Emily Martin.
“You have to be an employee in order to have those protections under federal law.”
Film Directors Seek EEOC Help
The EEOC is also permitted to conduct its own investigations. Four years ago, American Civil Liberties Union (ACLU) asked the EEOC to investigate systematic gender discrimination in the hiring of women directors in Hollywood studios. The ACLU presented statements from more than 50 women directors, and showed research indicating that women directed only seven percent of the 250 top-grossing films in 2015 and 14 percent of 3,500 television episodes.
“Our case involving the movie industry has to do with women as employees being discriminated against in hiring,” said Gillian Thomas, Senior Staff Attorney with the ACLU Women’s Rights Project in an interview. She is one of two lead attorneys on the matter.
Although the EEOC does not have to report on the status of an investigation, in 2017 the ACLU felt hopeful that the EEOC was working behind-the-scenes to reach a settlement with six big studios. Now the matter has slipped off the radar.
Maria Giese, a Hollywood director who had seen her own career stalled, helped convince the ACLU to take the case and gathered evidence on gender disparity. Giese’s advocacy became the subject of a film, This Changes Everything. A successful outcome in the EEOC investigation “will score a path for all women in all creative positions,” said Giese.
A successful outcome in the EEOC investigation “will score a path for all women in all creative positions,” said Giese.
Independent Contractor, Employee, Or…?
The film directors’ claims of discrimination were pinned on defining directors as employees within the context of the EEOC definition, although most would define themselves as independent contractors.
In order to expand the protections against gender discrimination, a substantial amount of time in the world of the EEOC is spent trying to show that people are actually employees even though they are not called employees. Lawyers do this by showing that an employer controls the conditions and terms of the work.
A similar battle has developed around Uber and Lyft drivers: Are they truly independent contractors who act on their own? Or are they employees whose work is controlled by the company, and, as such, makes them entitled to employee benefits? While the issue is being litigated around the country, a recent advisory opinion from the National Labor Relations Board (NLRB) took the position that the drivers are independent contractors and not entitled to employee benefits.
California went the other way, passing AB5 in September — new “gig” economy legislation that redefines many independent contractors as employees under labor laws. The law will take effect in January,
A proposed new federal law called “BE HEARD in the Workplace Act” was introduced in Congress earlier this year, and, if passed, would provide independent contractors with federal protection against harassment and discrimination.
“Title VII does not apply to independent contractors,” explained the ACLU’s Gillian Thomas, who is also the author of the book, Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work.
In brief: Employees are covered under myriad laws; independent contractors are left to fend for themselves.
…Or Something Else?
But the problem is exacerbated for women playwrights, composers and visual artists because they are also not independent contractors. The well-intentioned effort to expand the laws to freelancers does little to help them.
If artists are hired — freelance or on staff — to create a work for a business, for example, to design a logo or write the script for a training video — the independent contractor tag might apply.
But, by and large, creative artists create independently, hold the ownership rights to their work and offer the work to the outside world.
“In terms of women not getting shown in galleries or not produced by a theater — that is outside of the realm of employment law,” said Thomas. That means outside the realm of Title VII and the EEOC.
“In terms of women not getting shown in galleries or not produced by a theater — that is outside of the realm of employment law,” said Thomas.
Although one law review author posited in an article, Sharing the Stage, that Broadway producers should be considered “employers” of playwrights under EEOC law because producers can exert persuasive influence on writers to change the text, no action has been brought based on this thinking. Given the fierce independence of most playwrights, it seems highly unlikely.
“Women creatives who are freelance are the ones who get screwed in every way,” said Maria Giese.
“It’s a problem because of the way that employee-based solutions are part of our culture. Some people get rights. Some people don’t get rights,” said Sarah A. Howes, a lawyer and playwright in New York. “Ideally, everyone in every kind of working situation should have access to these laws,” she said in an interview.
“Some people get rights. Some people don’t get rights,” said Sarah A. Howes.
Howes wrote an essay on the subject for “Creativity Connects,” a special report of the National Endowment for the Arts, describing creative artists as the original gig economy.
“Musicians have always had gigs; it’s just that now, apparently so does everyone else,” Howes wrote. But, she noted, to be an employee, the creators of art need to consider thoroughly what an employment relationship would do for them and their career goals. “Employees receive practical worker benefits like workman’s compensation and unemployment compensation; however, employees also lose copyright interests in a creative work,” she said.
In fact, creative artists may be more like a small business or a seller — they are selling or licensing their work in exchange for a payment, royalty, or licensing fee. Here, too, the law disappoints in the face of discrimination claims. Although “public accommodations laws,” part of Title II of the Civil Rights Act prevent businesses from discriminating in the provision of services and facilities, there is little in the law that requires buyers to purchase on a nondiscriminatory basis.
To offset this omission, certain programs have emerged to aid small businesses owned by underrepresented groups. “Minority” business programs offer grants, loans or assistance, and some government procurement programs set targets that will support diverse vendors. A smattering of large corporations are using their outside contracting dollars to require vendors to demonstrate gender and racial diversity in their hiring.
While these programs might open a path to new thinking for creative artists, they also underscore that the current law is not designed or defined in a way that can readily remedy gender discrimination in the arts.
So What Are the Solutions?
While the law has been a major tool in ending discrimination in many fields (and in higher education through Title IX of the Civil Rights Act of 1964) the existing frameworks offer only extremely narrow areas where women creatives might succeed, and, even then, only with a perfect combination of circumstances and evidence of direct discrimination.
Experts brainstorming on the topic, while offering a couple of long-shot thoughts about the law, urge women creative artists to undertake broader advocacy and innovation to pressure cultural change.
- 1-Develop a challenge if government entities are involved: A “long-shot” legal case might be possible if women artists encounter identifiable discrimination in an arts organization run by a government agency — think of a city-owned museum. In that case, an action might be available under Section 1983 of the federal code (42 USC Sec 1983), which allows civil rights claims to be brought against the government. Experts could think of no such case. Similarly, an action might arise under laws that require nondiscrimination in government contracts or in the use of government facilities, government grants or benefits. For example, imagine an orchestra that uses a government subsidized facility and discriminates against women composers. On a more practical level, government granting agencies, such as the National Endowment for the Arts and local cultural agencies, could strengthen gender parity language and enforcement mechanisms.
- 2-Look to local, state or federal laws on public accommodations: Laws on “public accommodations” might offer a platform for creative artists to make a claim of discrimination by theaters, museums or music halls that fail to draw upon creative works by women — although, again, no expert could think of a case.
- 3-Change the law: Existing laws could be expanded to provide protections for creative artists. Just as the rise of the “gig economy” has led to efforts to extend employment-based laws to freelancers, laws might be further expanded to protect creative artists from discrimination while not stripping them of the ownership rights in their works.
- 4-Add women artists to staffs with copyright protections: Placing working artists on the staff of a theater, museum or orchestra, while guaranteeing that they own the works that they generate, would give them the protections of nondiscrimination (and other) laws. Selected residences currently offer playwrights a living wage and staff benefits.
- 5-Ramp up government incentives: States or cities that identify gender bias as a problem could offer tax or other incentives to arts organizations to address gender discrimination — “it’s using a carrot, not a stick,” said ACLU’s Gillian Thomas. New York City started a special fund to support women in film and theater, adding women in music to the mix in a second round. New York State is now considering a Television Diversity Tax Credit Bill that would provide incentives for production companies to hire women and people of color as writers and directors.
“It’s using a carrot, not a stick,” said ACLU’s Gillian Thomas.
- 6-Appeal to Funders, Investors and Donors: In the arts, private funders play an outsized role. By putting dollars into expanded gender parity and diversity efforts, funders and donors can make a huge difference. The New York Community Trust in 2019 gave funding to 11 arts organizations to expand racial and ethnic diversity; adding gender could crack another barrier. Currently, grants for women can support individual art-making, including Anonymous Was A Woman, which offers $25,000 to female visual artists over 40, or the Sorel Organization, which supports women composers. More foundation efforts to address gender disparity would have an important ripple effect.
- 7-Advance gender nondiscrimination statements: Anti-discrimination statements stressing gender equality in an organization’s mission might provide education and awareness, as well as persuasive mechanisms for action if discrimination occurs (even if unlikely to be enforced in court). Government contracts generally require vendors to have nondiscrimination policies. The Gill Foundation requires grantees to follow a specific nondiscrimination policy that is especially attentive to LGBTI and gender-expression.
- 8-Seek guild and association support: Playwrights, visual artists and composers have guilds and associations that could adopt powerful gender parity platforms and set standards for the field. The American Bar Association has model rules on nondiscrimination for lawyers. Of course, bias and conflicts of interest within those arts associations also need to be addressed, notes Maria Giese. “Fighting for rights for women can seem like a rigged game,” she said.
- 9-Adopt alternative advocacy. The Guerilla Girls has long used masked advocacy and clever visuals to challenge the lack of women in art, and an independent group in theater, Guerilla Girls On Tour, uses stickering and appearances. The League of Professional Theater Women (LPTW) annually stages a parade through the Broadway theater district to draw attention to the dismal inclusion of women — in 2019, crowds cheered. One More Conversation, another LPTW initiative, encourages theatrical organizations to take another look at women and people of color prior to decisionmaking — an idea that draws from the Rooney Rule in sports to increase diversity in coaching. The Jubilee calls upon theaters to dedicate a season to those who have been historically excluded. And to address gender bias in other fields, adventurous ideas are taking hold — lawyers now participate Hackathons to find solutions to overcoming the bottlenecks that block the advancement of women.
- 10-Aim for the big picture. Joining overarching efforts to improve women’s opportunities can shift the culture and raise awareness about women artists. Equal Pay advocacy might be a time to talk not just about financial loss, but the lack of opportunities for creative women. Passage of an Equal Rights Amendment (ERA) to the U.S. Constitution, now experiencing renewed advocacy, would give gravitas to gender parity arguments. With an ERA, women would have a constitutional right to be free of bias. It’s hardly a quick fix, it’s been a long battle already.
“This is a civil rights argument about our cultural narrative. Something sweeping needs to be done to remedy this,” said Maria Giese.
Women creative artists are a small slice of the population. But they are important in bringing diverse perspectives and stories to the public sphere. Without women’s stories, people hear a lopsided version of human emotions, thinking and philosophy. Creating a society that respects all human rights depends on understanding of varied visions of the world, including from the imaginations of women — who are, after all, more than half the population.
“This is a civil rights argument about our cultural narrative. Something sweeping needs to be done to remedy this,” said Maria Giese.