Casting a Diverse Palette

It’s not often that an Assistant Attorney General interferes with a theatrical production. And, in this day and age, obstructing a production because of its connection with the transgender or gender-queer experience is presumptively insensitive, at best. 

Hir, a play by Guild member Taylor Mac, was slated for production at Western Washington University. As a public university, WWU’s contracts are reviewed by state attorneys. The live performance contract for Hir, licensed by Dramatists Play Service, was flagged because it had a “Special Note on Casting” which read: 

The author has stipulated that the role of Max must be played by an actor who was a biological female and now identifies as transgender or gender-queer (a person who does not subscribe to conventional gender distinctions but identifies with neither, both, or a combination of male and female genders). 

The Washington AAG reviewing the contract presented no issue with the content of the play, so this was not a censorship issue. The problem was that making employment decisions based on someone’s gender or sexual orientation violates Washington State’s Law Against Discrimination: you can’t hire only straight people; you can’t refuse to hire non-straight people; you can’t hire only non-straight people; you can’t refuse to hire straight people. It is an equal employment opportunity issue. 

The AAG summed up his position thus: “It is my view that selecting a third-party actor based on mandating certain discrete characteristics is not exercising the playwright’s free speech. The playwright’s free speech is writing the play itself.” 

Of course, there must be some legal limit on a dramatist’s authority. After all, an author cannot contractually require a producer to use a real, loaded gun to shoot someone in a scene. Yet, any dramatist would have a visceral reaction to being told by a government agency how to cast a work. Any dramatist would say that the people on the stage are part and parcel of the free expression of the script. Fortunately, there is some state-level case law to support this gut feeling. 

It is now well known that, under federal employment law, Title VII generally prohibits employers from printing or publishing (or causing to be printed or published) any notice or advertisement relating to employment indicating any preference, limitation, specification, or discrimination, based on race, color, or sex. By advertising so-called hiring “preferences” for casting, the Guild and its members may arguably violate Title VII. Two recognized affirmative defenses exist, however, as possible justifications for an alleged violation: the bona fide occupational qualification (BFOQ) and the business necessity exception. 

The BFOQ applies to intentional and unintentional discrimination. The BFOQ defense is written narrowly and interpreted narrowly. Traits such as sex and national origin are subject to the BFOQ exception, but importantly, race is not. 

Proving the BFOQ defense requires that: (a) there is a direct relationship between the protected trait and the ability to perform the duties of the job; (b) the BFOQ relates to the “essence” or “central mission of the employer’s business”; and (c) there is no less restrictive or reasonable alternative. Examples of BFOQs that have been upheld by a court are maximum weight and physical fitness requirements for paramedics because statistical studies showed obesity decreases a paramedic’s strength, agility and endurance, and increases the risks of job-related injury and disease. 

Gender is rarely a BFOQ. For example, one court held it unlawful when an employer used a physical fitness test that was likely to exclude women applicants where the standard exceeded that required for job performance. Similarly, another court found male gender to not be a BFOQ for employment at a men’s club where enclosed shower and bathroom facilities were available for women. 

The courts, however, have recognized acting as an example of a permissible sex-based BFOQ. For example, a Texas court found “that of an actor or actress, the primary function of the position, its essence, is to fulfill the audience’s expectation and desire for a particular role, characterized by particular physical or emotional traits. Generally, a male could not supply the authenticity required to perform a female role.” Further, the Equal Employment Opportunity Commission’s (a federal agency) regulations explicitly reference acting as a situation where the BFOQ exception applies. While EEOC regulations do not have the force of law, available (albeit scant) case law supports the permissibility of casting restrictions based on gender. Discriminatory casting requirements based on other traits have yet to be tested in court, making it unclear whether such requirements would be permissible. 

The Business Necessity exception applies only where a facially neutral policy (i.e., one that is not discriminatory on its face) has a substantial, disparate impact on groups protected under Title VII. Unlike the BFOQ exception, business necessity can be applied to racial discrimination. Invoking this exception requires proving that the business be seriously affected if the policy was prohibited. Specifically, proving Business Necessity requires that the employment practice be: (a) job related for the position in question; and (b) consistent with business necessity. 

The defense has been used in the racial context without much success, but courts have left the door open for its use in limited circumstances. For example, a power plant relied on the business necessity defense to argue that its requirements that job applicants complete high school or pass a general intelligence test were justified, but the court ultimately ruled such requirements were unlawful because they operated to exclude racial minorities and bore no demonstrable relationship to job performance. Notwithstanding, the court indicated that such educational requirements might be justified by proof that they affect capability for the next succeeding position or relate to future promotion, thus fulfilling a genuine business need. 

Race-based casting instructions that rely on the business necessity defense for justification have yet to be tested in courts and is, thus, an area of uncertainty. 

All states must honor the First Amendment, freedom of speech. The Supreme Court has identified certain rights (e.g., the right to vote, the right to travel, the right to privacy) as worthy of strict scrutiny protection, and the First Amendment is at least equal to those. Therefore, when the casting of a dramatic work includes some form of discrimination based on race, sex or some other trait requiring a particular level of judicial scrutiny, there are competing legal interests. 

We have one case from the Middle District of Tennessee in 2012 to help predict the outcome of a contest between claims of illegal discrimination and the First Amendment. But the judicial reasoning, in that case, is sound and persuasive. 

It concerns the television shows of The Bachelor and The Bachelorette (the “Shows”), in which the court acknowledged, “With respect to casting decisions for an entertainment program of any kind, it appears that no federal court has addressed the relationship between anti-discrimination laws and the First Amendment.” 

Two black men interviewed/auditioned for the Shows and received cursory treatment when compared to their white counterparts. The men then noticed that no season of the Shows had “starred” an African American, and the few African Americans that had been cast at all were eliminated early in each season. They filed suit, specifically asserting that the Shows were, among other things, perpetuating racial stereotypes and catering to the misguided prejudices (e.g., against interracial relationships) of the Shows’ audience members. 

The dispute reached an interesting point with defendants averring that there was no intentional racial bias (i.e., other legitimate non-discriminatory reasons for the casting decisions) and that plaintiffs wanted “to co-opt the Shows to showcase the plaintiffs’ own preferred message of racial acceptance.” The plaintiffs responded that if race was “not a factor in casting the Shows” then applying anti-discrimination law “would not actually alter the Shows’ expressive content.” In sum, while both parties agreed that the Shows constituted expressive speech protected under the First Amendment they disagreed as to whether the protected speech included the casting process. 

The court concluded that the “plaintiffs seek to drive an artificial wedge between casting decisions and the end product, which itself is indisputably protected as speech by the First Amendment. Thus, regulating the casting process necessarily regulates the end product . . . [C]asting decisions are part and parcel of the Shows’ creative content.” That’s the law in the Middle District of Tennessee. 

As happens so often in the theater industry, Taylor Mac’s production was already in the works while the live performance license was being negotiated. In fact, the role of Max had been cast from the very beginning of the conversation among WWU, DPS, and the AAG. Eventually, they were able to remove the controversial provision and replace it with the stipulation that, “The role of Max will be performed by Bellamy Ridinger, who identifies as genderqueer.” This was a truthful statement that excluded the language of concern to the AAG. DPS subsequently changed its standard casting provision to read: 

The play(s) must be presented only as published in the Dramatists Play Service, Inc. authorized acting edition(s), without any changes, additions, alterations, or deletions to the text or the title. These restrictions shall include, without limitation, not altering, updating, or amending the time, locales, or settings of the play(s) in any way. Furthermore, the gender or race of the characters may not be changed or altered in production in any way, and the characters are to be performed by actors who match the specified gender or race, unless the author has indicated flexible casting possibilities. 

Requests for permission to make any changes to the text of the play or in the casting of the play must be made in writing to Dramatists Play Service for review and consideration by the author or copyright holder. 

We have thousands of years of history, the BFOQ and Business Necessity exceptions to Title VII, and the law of the land for part of Texas and part of Tennessee to support casting decisions above anti-discrimination concerns. Though the points presented in this article are untested on a national scale, they all point to what seems an obvious conclusion: casting is part and parcel of the free speech protected under the First Amendment. This is why August Wilson plays will not have white actors, why theatres don’t have to consider men for the part of Lady Macbeth, why Who’s Afraid of Virginia Woolf does not have to consider non-whites, and why Lin-Manuel Miranda can request non-white men when casting a musical about the United States’ founding fathers—because the casting decisions are an extension of dramatists’ message. 

The Guild would like to thank Davis Wright Tremaine LLP for its patient, diligent and comprehensive work in helping us describe Title VII and its defenses to our membership.