Tuesday, April 5, 2016

No matter what the producers of #Hamilton tell you, race is never a BFOQ

True confession time. I am not a fan of Hamilton. I don’t get it. Never have, never will. I will probably go to my grave having never seen what people tell me is the greatest thing to come to Broadway in the last few decades. And I’m perfectly okay with that.

I say this as prologue to today’s thought, which discusses this ad (h/t HuffPost), in which the producers of the Broadway seek “NON-WHITE men and women, ages 20s to 30s, for Broadway and upcoming Tours!”

Hamilton (00825581xBFD02)

The age part of the casting call is easy to handle. If age is a BFOQ (bona fide occupational qualificaiton) for a position, the employer has a defense to the age-discrimination claim.

The race aspect of the ad, however, is trickier.

The producers claim the ad “adheres to the accepted practice that certain characteristics in certain roles constitute a ‘bona fide occupational qualification’ that is legal.” But does it?

According to the EEOC's Compliance Manual, “race and color can never be BFOQs.” The EEOC continues, in its fact sheet on race/color discrimination: “Title VII also does not permit racially motivated decisions driven by business concerns – for example, concerns about the effect on employee relations, or the negative reaction of clients or customers. Nor may race or color ever be a bona fide occupational qualification under Title VII.”

So, how can Hamilton’s producers rely on a BFOQ for its discriminatory ad? Consider this language, taken from Ferrill v. Parker Group, Inc. (11th Cir. 1999): “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.”

Thus, although actors may be hired by physical characteristics, the law expressly prohibits consideration of race as a BFOQ. Racial discrimination in hiring is illegal, even if the hiring is to cast an actor in a race-specific role, period.

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