Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms

Abstract

This article examines the legality of race and sex classifications in casting announcements for actors, which are common in the film industry and have profound social consequences, yet have been entirely overlooked by legal scholars. Such announcements or breakdowns are used to channel people of color and women to low-paying, marginal roles. Title VII provides no categorical exception for this highly unusual practice - it makes no exception for race and contains only a narrow bona fide occupational qualification (BFOQ) defense with respect to sex. Divergent strands within Title VII and First Amendment law point in contradictory directions on the legality of discriminatory breakdowns. With respect to Title VII, the EEOC Guidelines opine that sex discrimination in casting may constitute a BFOQ for authenticity purposes, but this conclusion is at war with core Title VII principles. With respect to the First Amendment, the Supreme Court has held that generally applicable laws, such as Title VII, may be applied to expressive organizations without triggering heightened free speech scrutiny. Recent cases, however, created exceptions to antidiscrimination laws for the Boy Scouts and a parade group notwithstanding the aforementioned contrary precedent. I conclude that the First Amendment requires treating casting decisions with a degree of deference that Title VII would not ordinarily afford employers. But our constitutional commitment to free speech does not exact a wholesale abandonment of antidiscrimination law in this context. It can accommodate the goal of reducing the uncritical use of race/sex classifications and reserving such classifications to a subset of casting decisions in which they would demonstrably advance the narrative. Alternatively, a court might ban race/sex classifications in all breakdowns and yet recognize that the ultimate casting decision is protected by the First Amendment. This examination of casting discrimination also provides a reminder that society's tastes for certain gender conventions, such as makeup on women and the routine requirement that female actors appear in nude scenes, temper Title VII's capacious language and confine its impact. In short, there is a gap between Title VII's broad promise of equal employment opportunity and the reality of continuing differential treatment that has become naturalized and goes largely unchallenged.