Lawyer: No legal exception for showbiz hiring discrimination
Editor's Note: Kent Mannis, Managing Editor of LawRoom.com, sent this email this morning after reading our post, published yesterday, on the dustup caused by a casting call for tech-savvy women, ages 25-35, distributed to recipients of the Digital Eve Seattle mailing list.
Dear Mr. Bishop, I read with interest your article “Casting call for tech-savvy young women creates ruckus on job list." Unfortunately, it erroneously suggests that an exception exists from the anti-discrimination laws for “casting calls”; there isn’t. It’s illegal.
As a lawyer involved in employment law compliance for 15 years (and anti-harassment training for 10 years), I’ve noted a rise in curiosity about how labor laws and the entertainment business overlap.
For example, there’s been recent questions about “Jon & Kate” and their compliance with child labor laws, the “Temptation Island” show and France’s laws, and I wrote about it (regarding) the CBS show “Kid Nation” in 2008, and the minimum-wage and overtime violations in “Big Brother” in 2000.
In 2006, I noted a report on casting discrimination, and included this quote: "Casting directors take into account race and sex in a way that would be blatantly illegal in any other industry," said UCLA law professor Russell Robinson. "Many actors accept this as normal, but depending on the facts of the case, lawsuits can be filed."
Although the law allows intentional discrimination (e.g., choosing a worker by sex or age) when a “bona fide occupational qualification” (BFOQ), as when a particular lead actor must display these traits, there’s no BFOQ exception for “race.” So, unless “only a woman” or “only someone under 39” can do a job, then it might be okay to discriminate under the BFOQ exception. However, if you remember The Crying Game or Boys Don’t Cry, maybe sex isn’t a BFOQ for lead actors. And it never is legal to choose an actor by race.
One judge wrote:
“A film director casting a movie about African-American slaves may not exclude Caucasians from the auditions, but the director may limit certain roles to persons having the physical characteristics of African-Americans. Indeed, the drafters of Title VII expressly anticipated this issue. In their interpretative memorandum, Senators Case and Clark explained that '[a]lthough there is no exemption in Title VII for occupations in which race might be deemed a bona fide job qualification, a director of a play or movie who wished to cast an actor in the role of a Negro, could specify that he wished to hire someone with the physical appearance of a Negro.'110 Cong. Rec. 7213, 7217 (1964) (emphasis added). See also Miller, 615 F.2d at 654 (suggesting that a director wishing to cast the role of Henry VIII may announce that only applicants of sufficient physical likeness to Henry VIII will be considered). As applied here, TPG could have legally assigned jobs based on accent, speech pattern or dialect, but not expressly on race. Although the statutory language allows gender to be a valid BFOQ for hiring an actor or actress where it is necessary for the 'purpose of authenticity or genuineness,' see 29 C.F.R. 1604.2(a)(2), Congress specifically rejected race as a BFOQ.” [see Ferrill v. Parker Group (11th Cir. 1999) no. 97-7013]
Everyone has their favorite “widely accepted” discrimination that they think is okay. For example, most say that men and women should dress differently, use different bathrooms, and act in other gender-specific ways. Or only men (and not women) should be meatcutters or welders or factory workers. However, these traditions – including blatant discrimination when employing actors – are neither “okay” nor “legal.”
Although actors may be hired by physical characteristics, the law expressly prohibits consideration of race, and only allows consideration of sex or age when the “other” sex or ages can’t do the job (and with makeup, acting ability, etc., it’s rare that these limits would be necessary, except during some porno closeup).
Casting discrimination is illegal, and identifying race or ethnicity or gender in job ads is illegal, but they continue to get away with the aw-shucks-that’s-how-we’ve-always-done-it defense (and nobody sues if they want to work in that industry).
Unfortunately, your article continues to give a wink-and-nod to this discriminatory behavior. You shouldn’t; they’re breaking the law and you shouldn’t imply that they aren’t.
Kent Mannis is Managing Editor at LawRoom.com
