Can Hollywood discriminate on the race of their actors?

Question

Under the Civil Rights Act of 1964 and later addenda, employers in the US "cannot discriminate" on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, disability, and genetic information. However, the quotes are there because there are a number of cases that cast a murky fog over this otherwise straightforward principle.

If an employer is hiring for a customer service agent who needs to be able to communicate with Latino customers, the employer can require the agent to speak Spanish, but cannot require Latino heritage. Similarly, a position for a chef at an Indian restaurant can require extensive experience with Indian cooking, but the manager cannot legally discriminate against a white chef who trained in Indian cuisine.

Hollywood gets an even more subtle trick in the toolbag. Because the ability to perform the job of an actor is naturally tied to appearance, specific visual features can be required of a candidate, even racial features ("must be black in appearance").

Recently, a trend has emerged of replacing actors whose race does not match that of their character with race-matched actors. This does present a brand new question to the law. Given that the public now expects black characters to be played by black actors, asian characters to be played by asian actors, and so on, it could easily be argued that the fundamental requirements of the job now include being of a specific race, rather than simply having an appearance indicative of that race.

Given this, were a casting director casting a Latino character, and were a southern European or Middle Eastern actor with a Latino appearance but no Latino heritage to make it to the final steps of the casting process before being revealed to be non-Latino and rejected, would this be in violation of the law?

Answer 1

Yes this is legal.

Under the Civil Rights Act of 1964, there is an exemption under Title VII - Equal Employment Opportunity that allows for discrimination based on a protected trait when there is a Bona Fide Occupational Qualification (BFOQ). The wording is such that it can cover a slew of jobs that have just cause to discriminate against someone in their hiring process including certain roles for actors. However, it does not allow for wholesale discrimination.

In order to qualify, an employer must prove three things:

• A direct relationship between the trait and the ability to perform the job
• the BFOQ's relation to the "essence" or "central mission of the employer's business"
• That there is no less restrictive or reasonable alternative

As an example, a film about the work of Dr. Martin Luther King Jr. would have a BFOQ in hiring a man of African descent to portray Dr. King, given that he is trying to accurately portray a historical person (direct relationship) to further educate the public about that historical person's work (Central Mission) and that a "White MLK" would offend audiences.

While many roles in the hypothetical film would also qualify for the BFOQ, this doesn't give the production a blank slate... there is no need to discriminate against a set designer or a camera man, so a studio deciding to hire an all black production crew would face some legal troubles. The restaurant chain Hooters, famous for it's amazing chicken wings they served, has a sometimes noticed habit of hiring very attractive women as their wait staff, almost to the point of exclusively. All joking aside, they do get away with this by making a distinction that they are "casting" not "hiring" waitresses and their brand identity is entirely attractive ladies and not really the wings they serve. This is a BFOQ (and they often come up in discussions about this matter of law). With that in mind however, only Hooter's hiring of wait staff has a BFOQ. The person in the kitchen cooking the wings could be a middle-aged balding man with a noticeable gut and managers at stores can be men or women who aren't as attractive as the standards used for wait staff (or were former wait staff but are not as young looking).

Works adapting books and comics may have a little more leeway as certain characters may be portrayed as one race but have had their race switched for various reasons and with different success. No one batted an eye when Lawrence Fishburne portrayed Perry White, Clark Kent's editor in Man of Steel or Samuel L. Jackson as Nick Fury in the various Marvel films (an unusual example as traditionally white Nick Fury was depicted as an African American in Marvel's Ultimate Marvel line). His first appearance in August of 2001 in Ultimate Marvel Team Up, and a second appearance in Ultimate X-Men were of a non-descript African American, before his appearance as a regular in The Ultimates in March 2002, where his look was not only modeled after Jackson, Jackson was specifically "cast" as the visual model for the character, which he leapt at the idea (reportedly his initial pay was quite low given his standing as an actor with the difference made up for by a request of some exclusive artwork and an opportunity to play the character in a then not planned film.). There are even some fictional works where the change in race might be the point of the work itself (for example, in William Shakespeare's play Othello, the titular character is explicitly of North African descent and many consider the work a very early rebuke of concepts of racial superiority (it's very much the subject of debate as to whether Othello being black was an important concept to the play or the Bard just added it for something a little different)). During a 1997 Shakespeare Theater Company's 1997 adaptation, to hammer the "it's about race" side of the argument home, cast very much white Patrick Stewart to play the part of Othello, while the rest of the cast played by African American actors/actresses, a flip of the traditional depiction to highlight that Othello's race separates him from the rest of the characters in the play, regardless of what his actual race was. This play would have a BFOQ to discriminate against white actors seeking to play the villain Iago (IMO, one of the best villains ever written.) because it's important that Iago and Othello not share racial traits for the entire story to work.

While acting is usually where this comes up a lot, there are other places where it might be useful to discriminate against a protected class. For example, when hiring a pastor for a church, it would be very important to make sure the Pastor or other spiritual leader was not only of the correct faith, but correct sect within that faith to minister to the flock. A Seventh Day Adventist would be just as successful preaching to Catholic Church as a devout Muslim. For start, all three differ on which day is "the sabbath": Catholics say Sunday (the day of the week Jesus rose from the dead), Seventh Day Adventists say Saturday, the day that those of Jewish faith like Jesus would have observed as the Sabbath, and Muslims say it's Friday (I don't know why off the top of my head).

More practically, one might have a BFOQ for not hiring male therapists if one is working at a women's shelter (while gender has no bearing on being an effective therapist, many of the patients at a women's shelter might have problems discussing their situation with a man because most women's shelter's clients were abused by men in their lives, which might cause a delay in healing if the therapist working with them was also a man.).

Answer 2

Contrary to another answer, as stated in footnote 13 of KNIGHT v. NASSAU COUNTY CIVIL SERVICE COMMISSION:

It is true that Title VII allows employees to be classified on the basis of their religion, sex, or national origin if such a classification "is a bona fide occupational qualification reasonably necessary to the normal operation" of a particular business. 42 U.S.C. § 2000e-2(e); see Note, Race as an Employment Qualification to Meet Police Department Operational Needs, 54 N.Y.U.L.Rev. 413, 435-38 (1979). However, Congress specifically excluded race from the list of permissible bona fide occupational qualifications. See id. at 436 & n. 98; Detroit Police Officers Association v. Young, 446 F.Supp. 979, 1004-05 (E.D.Mich.1978), rev'd on other grounds, 608 F.2d 671 (6th Cir. 1979), petition for cert. filed, 48 U.S.L.W. 3466 (U.S. Jan. 10, 1980) (No. 79-1080).

(emphasis added)

In other words, 42 U.S. Code § 2000e–2 (b) prohibits employment discrimination based upon "race, color, religion, sex, or national origin", while subsection (e) creates exemptions for bona fide occupational qualifications based upon "religion, sex, or national origin", but not race or color.

See Race as a Hiring/Casting Criterion: If Laurence Olivier was Rejected for the Role of Othello in Othello, Would He Have a Valid Title VII Claim Hastings Communications and Entertainment Law Journal Vol. 20, Number 2, Article 3 for a comprehensive consideration of the question.

Although no court has ever decided the issue of "freedom of casting" [footnote 95] in theater or film, the First Circuit, in dicta, addressed the issue in Redgrave v. Boston Symphony Orchestra. [footnote 96] In Redgrave, the First Circuit stated that "the tension between the First Amendment and civil rights laws is relevant to situations involving race-specific casting" and "stated it '[did] not think... that liability should attach if a performing group replaces a black performer with a white performer (or vice versa) in order to further its expressive interests."' [footnote 97]

See also Theatrical Casting - Discrimination or Artistic Freedom? Columbia-VLA Journal of Law & the Arts

Answer 3

Yes, it's legal.

In a movie or theater production, the race of an actor is a relevant choice for the artistic message the director wants to convey. Not the genetic background, but the real appearance. Skin color, body stature, apparent gender and everything. Think of an example...

Boys on the Side. Replace the chubby-to-overweight and black Whoopie Goldberg with lean and black Jamie Foxx. Same film? No, the whole film doesn't make sense anymore. Try slender and tall, white Michelle Pfeiffer. Same film? No, the premise doesn't fit anymore.

You see, in movies, there are bfoq bona fide occupational qualifications. Those can be gender, race, age, weight, height... That is the whole package of look and what can be done with makeup, training, and even what the actor looks like. Even the personal history of the actor can be a decisive factor. In short, the ability to portray a character as demanded by the film. This particular film. And the (casting) Director has the ultimate decision power what qualifies. Most certainly it's not in the power of the general public to demand one or another, no matter how controversial a character casting choice is.

However, critics (and fans) have ripped films that broke established character looks or where there was a "miscast". The biggest criticism Asian critics have for Memories of a Geisha was the casting of Chinese actresses for some of the Japanese major roles - to them the differences were quite apparent, unlike to the Eurasian crowd. George Lazenby is known as the worst Bond of all time. Fantastic Four (2015) was ripped because it was generally bad, but the actor choices (not only Johnny Storm) added to the pile of criticisms.

Answer 4

Yes, It is Legal

U.S Law Defines Work Discrimination on the Employment of the worker not on How the person works. So yes it is perfectly legal for Hollywood to make judgments based on Skin Tone as long if it's not an issue of getting employed or a Pay deficit.