“The disease is employment discrimination, and that disease has a lot of different symptoms. One of those symptoms is a great, vast variety of levels of racism.”
The label of “dream factory” they put on Hollywood is more on the “dream” aspect than the “factory” aspect. While Hollywood’s labor problems may appear to be a long way and many decimal points from the tasks and paychecks of millions of Americans, its images and examples impact every day on how employee discrimination is a thing in the Hollywood industry.
Recent protests have generated a national conversation about racism, and many in Hollywood are bolting to include more progressivism in their films. The Simpsons on Fox is the most recent example: according to the show’s producers, “no longer will white actors voice non-white characters.” Ironically, if followed through, the way this casting call is framed constitutes unlawful discrimination; however, the producers can achieve their goals legally with a few adjustments.
Racial discrimination in hiring is prohibited by state and federal anti-discrimination legislation. Obviously, a company cannot refuse to hire someone based solely on their ethnicity, such as refusing to hire a white or black applicant based solely on their ethnicity. But only one exception to this rule permits hiring based on protected characteristics when that characteristic is a “bona fide occupational qualification,” or a BFOQ, meaning that the characteristic is essential.
However, this exception applies to artistic works too. Consider this: if casting actors based on their ethnicity was outlawed, how could a movie producer cast Martin Luther King, Jr.? The law permits creative artists to discriminate based on some physical qualities or appearances that are strongly related to, but not necessarily dependent on, race. Some people may argue that it is a distinction without a difference; the problem is in the degree of specificity: it’s fine for Hollywood to cast a black actor as Martin Luther King, but only if it does so based on his physical appearance rather than his race. This differentiation is difficult to see when applied to groups with the same characteristics.
When you consider a race that isn’t defined by skin colors, such as Latino or Hispanic, the distinction becomes evident. When casting a Latino character, a producer should look for “brown actors,” “actors with a Latino accent,” or “Spanish-speaking actors,” but not “just Hispanic actors.” On the other hand, the first examples depict traits such as accents, native tongues, and even skin color (though skin color is often synonymous with race). Recruiting “only Hispanic actors” is a racial search. Movie producers are not bound to consider casting a white actor to play MLK; instead, they might seek “actors with dark skin” or “actors with dark skin” by specifying his physical attributes.
So, what did The Simpsons’ production do wrong? They didn’t announce, as they should have, that characters will be voiced by “actors with the same real-life characteristics as the character they are voicing.” Instead, they simply stated that “non-white characters” will not be voiced by “white performers.” The statement’s illegal lynchpin is the way they phrased the strategy. This is essentially a race-discrimination dog whistle, but it might make the difference between legality and liability under state and federal laws. So, before engaging in these recruiting tactics, consult an experienced attorney.
Ani Azadian is an American lawyer and legal commentator who has appeared on CNN, HLN, and Fox News. She is a skilled labor and employment litigator who believes in only taking cases of employees who have been wrongfully terminated by employers and making sure those employers are taught a lesson in respect, human compassion, and decency. She is continuously seeking justice for employees who have been sexually harassed, discriminated against, wrongfully terminated, denied accommodation for disability or injuries, or retaliated. To know more about her practice, visit www.azadianlawgroup.com.