Recent protests have sparked a national dialogue about race, and many in Hollywood are bolting to inject more progressivism into their products. Fox’s The Simpsons is the latest example: according to producers, the show will “no longer have white actors voice non-white characters.” Ironically, the way this casting call is worded constitutes unlawful discrimination, if acted upon, though the producers can lawfully achieve their goals with a few tweaks. The devil is in the details.
State and federal anti-discrimination laws prevent racial discrimination in hiring. Obviously, an employer cannot refuse to hire someone simply because of his or her ethnicity, such as refusing to hire a white or black applicant because they are white/black. But one exception to this rule allows hiring based on protected characteristics when that characteristic is a “bona fide occupational qualification,” or a BFOQ, meaning the characteristic is essential. The quintessential example where race constitutes a BFOQ is where a police department recruits an officer based on his race for the purposes of the officer infiltrating an ethnically homogenous organization, such as the Ku Klux Klan.
But the exception also applies to artistic works. Think about it: how could a movie producer cast the role of Martin Luther King, Jr. if selecting actors based on their race was prohibited? The law allows creative artists to discriminate, not on race per se, but on some physical characteristics or appearance that may be closely associated with, but not necessarily dependent on, race. Some might say this is a distinction without a difference; the distinction involves the degree of specificity: it is fine for Hollywood to pick a black actor to portray Martin Luther King, but only if it is picking him because of his physical appearance, not his race. This distinction is difficult to see when applied to groups that have the same ethnicity as their members’ skin color, such as white or black.
The nuance becomes clearer if you consider a race that is not synonymous with skin color, such as Latino or Hispanic. A producer may properly seek “brown actors,” “actors with a Latino accent,” or “Spanish-speaking actors” to portray a Latino character, but they cannot search for “only Hispanic actors.” The difference is that the first examples portray characteristics—accents, native tongues, and even skin color (though skin color is often synonymous with race). Recruiting “only Hispanic actors” is searching exclusively on racial grounds. Movie producers are not obligated to entertain the idea of casting a white actor to portray MLK; they can instead search by describing his physical characteristics, such as a search for “actors with dark skin.”
So, what did The Simpson’s producers do wrong? They did not announce, as they should have, that characters will be voiced by “actors with similar real-life characteristics as the character they are voicing.” Rather, they announced merely that “white actors” will not voice “non-white characters.” The statement’s illicit linchpin lies ultimately in how they framed the approach. For all intents and purposes, this is a race-discrimination dog-whistle, but it may mean the difference between legality and liability under both state and federal laws.
Not only is this nuance often hard to identify, but missteps tend to mobilize both legal and political forces, given the current political climate. Be sure to consult an experienced attorney before engaging in these hiring practices. Attorneys at the Dhillon Law Group are happy to help navigate you through these laws.
Dante Quilici is an associate who handles employment litigation and counseling at Dhillon Law Group, Inc.