Are Casting Calls for Actors of Certain Races or National Origins Illegal?

by Stefanie M. Renaud

If you are anything like me, you’ve been glued to your T.V. for the past few weeks, fervently watching the explosive second season of Netflix’s original hit show Narcos.  The show features a dramatized version of Colombia’s cocaine boom, when notorious drug kingpin Pablo Escobar and the Medellin Cartel terrorized the country in a campaign to end American extradition.  Narcos is filmed in Columbia, and the dialogue is conducted primarily in Spanish with English subtitles.

As a former member of “the industry” and a current employment lawyer, the show brought up an interesting question for me: How exactly do you cast actors on a show like Narcos?  Isn’t it illegal to request only actors of “Columbian descent?”  Could you get around this by seeking “Spanish speakers only?”  But what if the part was written for someone of a particular race, national origin, or gender?  Shouldn’t the creative minds behind the show have a right to choose the actor they want to bring their character to life?

This tension arises because casting calls are poised at the intersection two of our most deeply held American beliefs; (1) that everyone should get a fair shot based on their merit, and (2) that an individual’s rights to creative expression should not be infringed.  To the first point, Title VII of the Civil Rights Act of 1964 prohibits employers from engaging in hiring practices that discriminate on the basis of race, color, national origin, and sex (amongst others), unless the protected characteristic is part of a “bona fide” occupational qualification or “BFOQ.”  To the second, the First Amendment protects artistic expression in entertainment, television, and dramatic works.

Recently, this tension came to a very public head when the Broadway blockbuster Hamilton posted a casting notice for “nonwhite” actors.  Public outrage was swift, with many accusing Hamilton of engaging in reverse racism.  Caving to public pressure, the show eventually opened the call to all actors, but Hamilton creator Lin-Manual Miranda was clear that the casting specifications were “non-negotiable” and that casting directors would only be hiring nonwhites for specific roles.  By simply moving the alleged discrimination from the public view (e.g., the casting notice) into the “private” hands of casting directors (e.g., casting specifications), Hamilton was able to avoid further scrutiny, and legal repercussions, while maintaining the exact same “discriminatory” practice that had gotten them in trouble in the first place.  And if you’re thinking that is just a matter of semantics, you’re right!  This cunning use of “verbal gymnastics” allows Hollywood casting calls to exploit “loopholes” in discrimination law created in deference to the First Amendment.

So what loopholes are casting directors using to get away with continuing to illegally discriminate in hiring?  First, some courts have held that the First Amendment’s protection of free speech justifies racial, national origin, or gender “preferences” in casting calls, because “creatives” have a right to exclude persons based on protected characteristics in conflict with their creative “vision.”  The Hamilton creator is on-board: When asked whether creative intent or non-discrimination should carry the day, Miranda stated that “authorial intent wins” every time.  And while Title VII’s BFOQ defense explicitly excludes race as an acceptable factor in hiring, casting directors may choose to hire someone because of their “appearance” and “physical characteristics” without consequence.  This is, obviously, another semantic distinction without a difference, as a person is unlikely to “appear” as another race, unless they are actually a member of that race.  Additionally, characteristics such as accent, speech pattern, dialect, or the ability to speak a foreign language are acceptable hiring criteria, even if they are closely linked with national origin and/or race.  Finally, Hollywood also receives the benefit of case law which allows employers to discriminate because of “customer preference.”  The argument goes that the white majority prefers to see white faces in movies, and thus, casting favoring whites is justified by the preference of the audience.  Because of these exceptions, which all but defeat the purpose of Title VII, casting calls are allowed to engage in behavior that, if used in any other industry, would be obviously illegal.

And, just in case you were worried, there is no indication that Narcos’ casting was based on illegal characteristics: Wagner Moura, the actor who portrays Escobar, isn’t Columbian, he’s Brazilian, and actually had to learn Spanish for the role.

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