Q. I read somewhere that it is ok sometimes to choose employees of a particular sex, national origin or religion. Isn’t that discrimination?
A. Federal, state and many local laws prohibit employers from basing employment decisions on any protected category, including an employee’s sex, national origin or religion. While there are certain exceptions, such as where a particular protected category is a bona fide occupational qualification, the exceptions are extremely narrow, as one Broadway show found out the hard way.
With scores of Tony Awards and sold-out crowds for months, it seems the Broadway show “Hamilton” can do no wrong. But its producers caused a stir recently when they posted an open casting call “seeking nonwhite men and women, ages 20s to 30s for Broadway and upcoming tours.”
“Hamilton” tells the story of founding father, Alexander Hamilton, through rap and hip-hop songs. One of the many unique characteristics of the show is that the actors portraying, Hamilton and the founding fathers, such as Thomas Jefferson, James Madison and George Washington, are played by African-American, Latino, and other ethnically-diverse actors.
Actor’s Equity, a union representing theater actors and stage managers, issued a statement that the casting notice was inconsistent with its policy of encouraging all individuals to audition for roles regardless of race, gender or age. And at least one civil rights lawyer argued that the notice violated the New York City Human Rights Law.
But does the casting notice violate federal discrimination laws? Title VII of the Civil Rights Act of 1994 makes it an unlawful employment practice for an employer to fail or refuse to hire any individual because of his or her race, color, religion, sex or national origin. However, it is not an unlawful employment practice for an employer to hire employees of a particular protected category in those instances where the protected category is a “bona fide occupational qualification” or “BFOQ,” reasonably necessary to the normal operation of that particular business. (Think of the Catholic Church only hiring Catholics as priests or a women’s clothing line only hiring women as models.) The BFOQ exception has been construed very narrowly, and, in fact, Title VII does not even include “race” as one of the traits that it considers to be covered by the BFOQ defense.
The producers and creative team of “Hamilton” have been outspoken in their encouragement of diversity, stating that the musical showcases the story of “America then” told by “America now.” Nonetheless, in the absence of a BFOQ or certain other very narrow exceptions, any call for employees that excludes a particular group violates discrimination laws, and any exclusion based on race is unlawful. Ultimately, the show’s producers ended the duel in a draw — revising the casting notice to include language welcoming people of all ethnicities to audition.
-Tracey E. Diamond