Casting and caste-ing: Reconciling artistic freedom and antidiscrimination norms

California Law Review

Volumn 95, Issue 1, 2007, Pages 1-73

  Robinson, Russell K ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 33947639970     PISSN: 00081221     EISSN: None     Source Type: Journal    
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References (428)

1. Cf. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 579 (1995) ("The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis.").
2. See, e.g., Kimberly A. Yuracko, Trait Discrimination as Sex Discrimination: An Argument Against Neutrality, 83 TEX. L. REV. 167, 169-70 (2004) ("These days discrimination rarely takes the form of a per se refusal to hire women or men because of their sex . . . ."); ARTHUR LARSON & LEX K. LARSON, EMPLOYMENT DISCRIMINATION § 8.01, at 8-7 (2d ed. 2005) ("Employers are, on the whole, too sophisticated to profess their prejudices on paper . . . ."). But see Yuracko, infra, at 176 n.24 (noting formal exclusion of women in cases involving Toledo, Ohio police department and in the bookbinding industry). Beyond employment, antidiscrimination norms have not fully eroded racial preferences in realms that society deems very personal, such as dating, marriage and adoptions.
3. See, e.g., R. Richard Banks, Intimacy and Racial Equality: the Limits of Antidiscrimination, 38 HARV. C.R.-C.L. L. REV. 455 (2003) (reviewing RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION (2003)).
4. See 42 U.S.C. § 2000e-3(b) (2005); see also id. at § 2000-2a; id. at § 2000e-2(a)(1).
5. A company called Breakdown Services "breaks down" scripts provided by casting directors into descriptions of the characters and transmits such descriptions, called "breakdowns," to talent agents. See infra Part I.
6. The only published decision on sex discrimination in casting addressed an equal protection claim. In Cook v. Babbitt, 819 F. Supp. 1 (D.D.C. 1993), a female Civil War enthusiast claimed that National Park Service (NPS) personnel denied her the opportunity to portray a male soldier in a recreation it produced for the public. See id. at 4. The case turned on whether the NPS employed a sex classification or applied sex-neutral standards of historical accuracy that Cook failed to satisfy. Cook argued that she effectively concealed her sex but the NPS categorically barred her from consideration. See id. at 6. NPS countered that Cook's costume was not historically accurate and failed to conceal her sex. See id. at 8. It did not defend "the use of gender as a proxy for an important aspect of historical authenticity in casting dramatic roles in public education programs." Id. at 5. Consequently, although the district court ruled for Cook, it did so based on factual determinations specific to the case, including a finding that NPS personnel ignored historical accuracy problems presented by male actors but applied a harsher standard to Cook based on her sex. See id. at 27-28. There is also a relevant unpublished summary order, Jenkins v. Metropolitan Opera Association, 2000 WL 713412 (2d Cir. 2000). In that case, the Second Circuit held that an African-American opera singer was not discriminated against in violation of Title VII because he was not qualified for the position for which he had auditioned. In rejecting the race claim, the court relied on evidence that all four judges at plaintiffs audition "independently noted significant deficiencies in his singing voice." Id. at *1; cf. Ingels v. Westwood One Broadcasting Serv., 129 Cal. App. 4th 1050, 1074 (Ct. App. 2005) (rejecting caller's claim that he was discriminated against based on age when calling into a radio program).
7. See Robert Post, The Logic of American Antidiscrimination Law, in ROBERT POST, PREJUDICIAL APPEARANCES 1, 48 (2001) ("[T]he continuing salience of race in society, coupled with Title VII's uncompromising suppression of race as a ground of decision making, renders the plight of the movie company genuinely puzzling.").
8. 29 C.F.R. § 1604.2(a)(2).
9. See., e.g., Associated Press v. Nat'l Labor Relations Bd., 301 U.S. 103 (1937).
10. Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).
11. A handful of works, mostly student notes, have examined certain aspects of the entertainment industry's discriminatory practices, but their scope has been narrow and their analysis has not focused on the First Amendment. See, e.g., Leonard M. Baynes, White Out: The Absence and Stereotyping of People of Color by the Broadcast Networks in Prime Time Entertainment Programming, 45 ARIZ. L. REV. 293 (2003) (discriminatory practices on broadcast TV);
12. Gina Browne, Comment, Target Hiring To Reach a Target Audience, 23 LOY. L.A. ENT. L. REV. 125 (2002) (discussing age discrimination suit by writers for television programs);
13. Bonnie Chen, Note, Mixing Law and Art: the Role of Antidiscrimination Law and Color-Blind Casting in Broadway Theater, 16 HOFSTRA LAB. & EMP. L.J. 515 (1999) (discriminatory practices in theatre);
14. Michael J. Frank, Justifiable Discrimination in the News and Entertainment Industries: Does Title VII Need a Race or Color BFOQ?, 35 U.S.F. L. REV. 473, 520-21 (2001) (considering whether Congress should enact a statutory exception for the entertainment and news industries and discounting First Amendment concerns);
15. Lois L. Krieger, Note, "Miss Saigon" and Missed Opportunity: Artistic Freedom, Employment Discrimination, and Casting for Cultural Identity in the Theatre, 43 SYRACUSE L. REV. 839 (1992) (examining particular Broadway casting controversy).
16. For examples of roles in which the race was changed, consider that Laurence Fishburne in The Matrix and Danny Glover in Lethal Weapon were cast in roles originally written for whites. See Dan Georgakas & Kevin Rabalais, Fifty Years of Casting: An Interview with Marion Dougherty, CINEASTE, June 5, 1998, at 26, 30;
17. Terry Lawson, Matrix Reflects Current Reality: Diverse Casting No Accident, MILWAUKEE J. SENTINEL, May 5, 2003, at 6B. Marion Dougherty, the casting director who persuaded the studio to cast Glover, explained that "[it] didn't change the script."
18. Dan Georgakas & Kevin Rabalais, Fifty Years of Casting: An Interview with Marion Dougherty, CINEASTE, June 5, 1998, at 26. This type of casting contrary to the script remains exceptional. See infra Part 1.
19. In focusing on the legal issues, I will not attempt to explain all of the practical forces that keep actors from suing for discrimination at a rate similar to those in other industries. However, the clubby, relationship-driven nature of the industry, its unbridled creative culture and the threat of losing employment opportunities for contravening community norms all seem to form part of the answer. I also focus on the use of race and sex in breakdowns because these are paradigmatic traits in antidiscrimination law, although breakdowns also specify other traits, such as age. I deal exclusively with films that depict live actors, which is not to deny that theater, television, animation, music and video games are rife with interesting issues. Although theater producers have (at least recently) been more daring in their casting choices, and theater audiences seem to have embraced nontraditional casting, I do not rely on this trend because of the significant differences between the demographics and sensibilities of the audiences for Broadway/off-Broadway theater (which appeal to a more regional, educated and sophisticated crowd) and big-budget movies (which depend on drawing in many millions of diverse people throughout the country in order to recoup escalating budgets). I do not address the regulation of casting in television because the courts have treated broadcast television as distinct from film for First Amendment purposes. See, e.g., FCC v. Pacifica, 438 U.S. 726, 759 (1978); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969). Pacifica, the principal opinion permitting greater regulation of broadcast television, has been roundly criticized. See, e.g., David Cole, Playing by Pornography's Rules: The Regulation of Sexual Expression, 143 U. PA. L. REV. 111 (1994). Because film receives stronger First Amendment protection than television, however, my argument could be extended to television.
20. Government subsidies could be challenged as a form of affirmative action in tension with the Equal Protection Clause. See Metro Broad, v. FCC, 497 U.S. 547, 600-01 (1990) (upholding FCC diversity regulations over First Amendment challenge), overruled in part on other grounds by Adarand Constr. v. Pena, 515 U.S. 200 (1995). In the absence of clear evidence of discriminatory intent or a specific policy creating a disparate impact, the underrepresentation of people of color and/or female executives at a particular studio would not by itself provide grounds for liability under Title VII.
21. There may be several executives and producers involved and a team of casting employees working under a casting director.
22. Erin Hill, a scholar who has worked as an assistant to casting directors and talent managers, says that in some situations casting directors are treated as "glorified secretaries." Interview with Erin Hill, in Los Angeles, Cal. (Oct. 11, 2005). Despite the subordinate and feminized nature of this job, some casting directors have significant influence and try to diversify the casting process.
23. See, e.g., Interview with Reuben Cannon, former casting director and producer of Diary of a Mad Black Woman, in Los Angeles, Cal. (Sep. 29, 2005).
24. See ENTERTAINMENT INDUSTRY CONTRACTS: NEGOTIATING AND DRAFTING GUIDE § 3-44.1 (Donald C. Farber ed., 2003) (standard option agreement granting purchaser "all rights to make any and all changes and adaptations of the Literary Property"); cf. PETER BART & PETER GUBER, SURVIVING FAME AND (MIS)FORTUNE IN HOLLYWOOD 65 (2002) ("Once a first draft screenplay has been written, other writers-sometimes as many as thirty-five as in The Flintstones-are brought in to reshape it."). Only the most powerful writers retain some contractual right to veto changes or at least be consulted before the studio makes significant alterations. See BART & GUBER, supra, at 74.
25. See Dana Calvo, Applying the First Light Coat, L.A. TIMES, Nov. 20, 1999, at F1 ("[M]any casting directors feel committed to the race agreed upon by the writers and studio executives, almost all of whom are white."); Interview with Jane Jenkins, Casting Director, Apollo 13, in Burbank, Cal. (Jan 26, 2006); Interview with David Ginsburg, in Los Angeles, Cal. (August 23, 2005) (stating that casting that does not match the script's race and sex description is "exceptional"). Mr. Ginsburg, currently the director of UCLA School of Law's Entertainment and Media Law and Policy Program, is an experienced producer, entertainment executive and lawyer. Increasingly, projects begin production without an approved script, and the script is constantly being re-written during production. See BART & GUBER, supra note 17, at 74. Thus, sometimes casting precedes the writing, and powerful actors, once cast, may influence the content of the script.
26. See Dave McNary, VARIETY, Oct. 12, 2005 (discussing WGA report by Prof. Darnell Hunt, director of the Ralph Bunche Center for African-American Studies at UCLA);
27. see also WILLIAM T. BIELBY & DENISE L. BIELBY, THE 1998 HOLLYWOOD WRITERS' REPORT EXECUTIVE SUMMARY 39 (1998). Professor Lauzen reports that the number is 13% for the top 250 grossing films in 2003.
28. See Lisa Hirsch, Slender Gender Gain, VARIETY, Nov. 18, 2004, at 12. According to casting director Jenkins, "men write the majority of the product in this town, and they write what they want to see and that doesn't usually include 50-year-old actresses."
29. Allison Hope Weiner, Saving Face, ENT. WKLY., Dec. 10, 2004, at 41, 42 (internal quotation marks omitted).
30. McNary, supra note 19. These numbers were virtually the same as those from the 1997 WGA report, suggesting little progress in diversifying writers. See Bielby & BIELBY, supra note 19, at 37, 39. The racial breakdown of writers is as follows: 95.1% White, 2.7% African American, 1.4% Latino, 0.6% Asian, 0.1% Native American.
31. See Interview with Reuben Cannon, supra note 16 (noting that at important casting meetings "everybody in the room is white").
32. See id.
33. See Arthur De Vany & W. David Walls, Uncertainty in the Movie Industry: Does Star Power Reduce Terror of the Box Office?, 23 J. CULTURAL ECON. 285, 288 (1999); See Interview with Jane Jenkins, supra note 18. The studio normally casts this actor in a lead role, but such an actor might also be cast in a supporting role (e.g., Robin Williams' role in Good Will Hunting).
34. See Allison Samuels, Will It Be Denzel's Day?, NEWSWEEK, Feb. 25, 2002, at 54; Interview with Reuben Cannon, supra note 16 (noting that most of Washington's roles are written for black actors).
35. Spielberg's film Munich lacked an A-list lead, yet the director's Oscar-winning record led investors to provide the $70 million budget. See Box Office Mojo, http://www.boxofficemojo.com/movies/?id=munich.htm (last visited Jan. 16, 2006).
36. For instance, Scarlett Johansson was plucked from independent films like Lost in Translation and Ghost World to star in the big budget thriller, The Island. See also Sharon Waxman, Maybe the Stars Have Gotten Small After All, N.Y. TIMES, Jan. 1, 2006, at 2-1 (discussing rise and fall of Orlando Bloom in Lord of the Rings, Kingdom of Heaven and Elizabethtown).
37. See Interview with Reuben Cannon, supra note 16 (stating that studios "will take a bet on an unknown white actor in a lead," but not an actor of color); see also Kevin Chappell, Taye Diggs and Michael Michele Open Up About Kevin Hill, Hollywood and Being Sex Symbols, EBONY, May 2005, at 156 (quoting Taye Diggs on the racial "double standard": "Young White actors are given opportunities that Black actors are not. We have to prove that we have a place. People aren't going to step aside and let us have our turn. They want us to have our hands out, begging for parts."). But cf. Interview with Jane Jenkins, supra note 18 (suggesting that opportunities for an unknown actor to star in a big-budget film are so rare that it is hard to draw conclusions about the impact of race).
38. See, e.g., Interview with David Ginsburg, supra note 18.
39. See Interview with Jane Jenkins, supra note 18 (stating that most scripts provide descriptions of main characters and casting directors simply hand script over to Breakdown Services); Breakdown Services, Who We Are, http://www.breakdownservices.com/us.html (last visited Jan. 16, 2006) ("Breakdowns are complete synopses of the characters contained within scripts. Our staff writers read scripts provided by casting directors and create approximately 30 television and feature film Breakdowns every day.").
40. See Breakdown Services, Casting Information Agreement, http://www.breakdownservices.com/agreement/agree.html (last visited Jan. 16, 2006).
41. See Interview with Erin Hill, supra note 15.
42. Institutional pressures prevent many actors from making such requests. For instance, an unknown actor would not want to anger her agent. See Interview with Erin Hill, supra note 15. As an assistant to casting directors, Hill reviewed the breakdowns daily, but she does not recall a single instance where an actor urged her bosses to submit the actor for a role of a different race or sex. See id. Moreover, few of these requests are successful. See Interview with Reuben Cannon, supra note 16 (estimating that 85-95% of agents will not submit a black client for a role that does not say "black"). When the identity is changed, the part is usually very small and often unnamed, such as "judge" or "police officer." See Interview with Erin Hill, supra note 15; Interview with Jane Jenkins, supra note 18.
43. See Interview with Jane Jenkins, supra note 18 (stating that sex is "written in stone 90% of the time" and the casting of an actor who does not match the script happens "very, very, very rarely"); but cf. Interview with Reuben Cannon, supra note 16 (suggesting that decision makers are more likely to change the role's sex to female than to change race).
44. Several people with experience as casting directors or assistants to casting directors confirmed this practice. See Interview with Robi Reed-Humes, Robi Reed & Associates (Antwone Fisher, Do the Right Thing), in Los Angeles, Cal. (Aug. 5, 2003) (estimating that 90% of breakdowns designate a preferred race and/or sex); Interview with Reuben Cannon, supra note 16; Interview with Jane Jenkins, supra note 18; Interview with Erin Hill, supra note 15.
45. If the breakdown made no mention of race, either explicit or implicit, it was categorized as "race not specified." If it made mention of race, but only to explicitly specify it was open to all groups, it was categorized as "open to all ethnicities." If it asked for a combination of racial groups (i.e., only Black or Latino actors), it was categorized as a "combination" with the various acceptable ethnic groups recorded.
46. These examples are from a preliminary smaller sample of breakdowns rather than the three-month sample.
47. In addition, 2.9% of the listings indicated the role was for a combination of races (such as for blacks and Latinos), and 1.7% indicated the role was for actors of Middle Eastern descent.
48. Calvo, supra note 18, at F1. In addition to the L.A. Times analysis, two casting professionals (one black, and one white) agreed that a listing without a racial designation is assumed white. See Interview with Erin Hill, supra note 15; Interview with Reuben Cannon, supra note 16. One other professional, who is white, stated that such a listing would mean the same thing as "open to all ethnicities." See Interview with Jane Jenkins, supra note 18.
49. Cf. Barbara Flagg, "Was Blind, But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 969-72 (1993) (noting that "the white person has an everyday option not to think of herself in racial terms at all" and labeling "the tendency for whiteness to vanish from whites' self-perception the transparency phenomenon"). This assumption seems more likely to be at work when a breakdown mentions race only for non-white roles or when a role is deemed "open to all ethnicities." It is more difficult to discern the race of unspecified characters when the breakdown includes listings designating characters as white and other characters as non-white or "open to all ethnicities," and yet fails to mention race for other characters. There are few listings that fall into this latter category.
50. Interview with Reuben Cannon, supra note 16; See Interview with Jane Jenkins, supra note 18 (noting that casting contrary to the script is rare and she has less opportunity to do so when casting big-budget films).
51. See Interview with Jane Jenkins, supra note 18 (stating that agents fail to submit actors who do not match breakdowns "as often as they could or should"); see also Interview with Reuben Cannon, supra note 16.
52. Interview with Reuben Cannon, supra note 16; see also Interview with Erin Hill, supra note 15 (characterizing problem as "obtuseness").
53. IMDB-Pro, http://pro.imdb.com/ (last visited Sept. 3, 2006).
54. See, e.g., Chris Warren, The Credit File: Every Day 400,000 People Seek - Or Submit - Information at the Internet Movie Database, How Did It Become Industry Standard?, LOS ANGELES MAG., July 1, 2002, at 36.
55. IMDB FTP Site, ftp://ftp.fu-berlin.de/pub/misc/movies/database/ (last visited Sept. 3, 2006). "Ftp" stands for file transfer protocol.
56. For more information, see IMDB, Interfaces, http://www.imdb.com/ interfaces/ (last visited Sept. 3, 2006).
57. See IMDB, What Kinds of Credits Are Eligible To Be included in the Database?, http://www.imdb.com/help/show_leaf?resumeeligible (last visited Aug. 30, 2006) ("Whenever possible, and with a few exceptions, we list credits exactly as they appear on screen.").
58. See IMDB, When Will My Update Be Added?, http://www.imdb.com/help/ show_leaf?resumeprocessingtimes (last visited Aug. 30, 2006) (explaining criteria for rejecting submitted data); see also Warren, supra note 44, at 36 (stating that in addition to automated fact checking, the site consults with public records, studios and the Writers Guild of America).
59. The websites used for reading reviews included www.reelviews.net and www.MRQE.com/lookup.
60. See Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2428-29 (1994);
61. Owen Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107 (1976),
62. reprinted in MODERN CONSTITUTIONAL THEORY: A READER 505 (John H. Garvey & T. Alexander Aleinikoff eds., 1999);
63. see also Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell", 108 YALE L.J. 485 (1998).
64. See Sunstein, supra note 50, at 2436.
65. See, e.g., United Steelworkers of Am. v. Weber, 443 U.S. 193, 208 (1979) (holding that Title VII, despite its language, permits affirmative action); Griggs v. Duke Power Co., 401 U.S. 424, 430-31 (1971) (holding that Title VII bars policies fair in form but that have a disparate racial impact and are not job-related); see also EEOC v. Consol. Serv. Sys., 989 F.2d 233, 238 (7th Cir. 1993) (refusing to interpret Title VII to burden small immigrant-run and African-American-run businesses, which are often "the first rung on the ladder of American success").
66. See, e.g., Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. MIAMI L. REV. 9 (2003) (discussing Brown v. Bd. of Educ, 349 U.S. 294 (1954) and Loving v. Virginia, 388 U.S. 1 (1967));
67. see also Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMMENTARY 257 (1996),
68. reprinted in MODERN CONSTITUTIONAL THEORY: A READER, supra note 50, at 727 (analyzing Romer v. Evans, 517 U.S. 620, 635 (1996)).
69. See, e.g., Samuel Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1 (2006).
70. 123 S. Ct. 2325, 2340-41 (2003) (construing Equal Protection Clause to facilitate construction of a diverse set of societal leaders).
71. See Sunstein, supra note 50, at 2435 (stating that the "Civil War Amendments were based on a wholesale rejection of the supposed naturalness of racial hierarchy" and instigated "an attack on racial caste").
72. Cf. William N. Eskridge & John Ferejohn, Super- Statutes, 50 DUKE L.J. 1215, 1237-42, 1269 (2001). (describing the Civil Rights Act of 1964, including Title VII, as quasi-constitutional law). Moreover, developments in civil rights protections at the state level have impacted federal law, and Title VII doctrine has influenced equal protection jurisprudence. See, e.g., Bd. of Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356, 368 n.5 (2001) (observing that states led the way in fighting disability discrimination, which created a consensus culminating in the ADA);
73. see also Mary Anne Case, Disaggregating Gender From Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 95 & n.116 (1995) (noting how Supreme Court appears to have incorporated sexual stereotyping rationale of Title VII cases into its equal protection gender jurisprudence); see also Eskridge & Ferejohn, supra, at 1241-42 (identifying Title VII's impact on the Romer decision).
74. United Steelworkers of Am. v. Weber, 443 U.S. 193, 208 (1979).
75. Cf. Grutter, 539 U.S. at 332 ("In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.").
76. See, e.g., DEAN ALGER, MEGAMEDIA: HOW GIANT CORPORATIONS DOMINATE MASS MEDIA, DISTORT COMPETITION, AND ENDANGER DEMOCRACY 5 (1998) ("Through regular entertainment programs as well as through news and public affairs publications and shows, the media's presentations are prime, pervasive presences in people's lives and have profound impacts on their perceptions of the world, images of leaders, notions about appropriate style and behavior, and other basic aspects of our culture.");
77. see also Ken Karst, Boundaries and Reasons: Freedom of Expression and the Subordination of Groups, 1990 U. ILL. L. REV. 95, 95 ("The freedom of expression is the freedom to contribute to social definition of other people, and to contribute to our own self-definition as well.").
78. See Jane Rhodes, The Visibility of Race and Media History, in GENDER, RACE AND CLASS IN MEDIA 37 (Gail Dines & Jean M. Humez eds., 1995) (stating that racial stereotypes were "employed liberally in early motion pictures");
79. see also Stuart Hall, The Whites of Their Eyes: Racist Ideologies and the Media, in GENDER, RACE AND CLASS IN MEDIA, supra, at 20-22 (arguing that even if depictions of the most crude archetypes, such as the Mammy, have subsided, "their traces are still to be observed, reworked in many of the modern and up-dated images" in contemporary media). Like much racism, this "very ancient grammar" has simply gone underground. Hall, supra, at 22. The phenomenon whereby socially dominant groups debase subordinate groups by depicting them as oppositional Others has historical roots deeper and broader than black-white relations and the modern entertainment industry.
80. See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, in CRITICAL RACE THEORY 103, 112-13 (Kimberlé Williams Crenshaw et al. eds., 1995);
81. Jan Nederveen Pieterse, White Negroes, in Gender, Race and Class, in MEDIA, supra, at 23-27; Rhodes, supra, at 33 (discussing how "American society responded to the existence of Africans, Asians, and indigenous people by erasing their cultures and substituting images that supported a system of racial dominance and control").
82. See, e.g., Paul E. McGhee & Terry Frueh, Television Viewing and the Learning of Sex-Role Stereotypes, 6 SEX ROLES 179, 183 (1980) (finding that children who were heavy television watchers "were significantly more likely than light viewers to attribute to each sex the psychological characteristics typically associated with males and females by adults");
83. Ann Beuf, Doctor, Lawyer, Household Drudge, 24 J. COMM. 142, 144 (1974) (finding that 67% of children who were heavy television viewers "selected stereotyped careers for themselves" compared to 50% for moderate viewers);
84. Sherryl Browne Graves, Television and Prejudice Reduction: When Does Television as a Vicarious Experience Make a Difference?, 55 J. SOC. ISSUES 707, 716 (1999) (describing studies finding an increase in positive attitudes toward African Americans and Latinos among children who watched racially diverse educational programs, such as Sesame Street);
85. see also Anupam Chander & Madhavi Sunder, The Right to Mary Sue, 95 CALIF. L. REV. _ (2007) (reviewing relevant studies). Such stereotypes can become so embedded that they structure the way we perceive entertainment, even preventing viewers from remembering counterstereotypical portrayals. One study asked children to watch a short film of a doctor and nurse. The authors varied the sex of the doctor and nurse to create four different male/female combinations. They found that all children who viewed the stereotypical male doctor-female nurse dyad correctly remembered it, but 53% of those who viewed a female doctor-male nurse dyad reported that the doctor was male and the nurse female.
86. See Glenn D. Cordua, Kenneth O. McGraw & Ronald Drabman, Doctor or Nurse: Children's Perception of Sex Typed Occupations, 50 CHILD DEV. 590, 591 (1979).
87. See Graves, supra note 62, at 715 ("White children, especially those living in rural settings, use television as a primary source of information to learn about different racial/ethnic groups."); Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1539-40 (2005) (noting significance of "vicarious" racial experiences in light of "persistent racial segregation"); cf. Karst, supra note 60, at 115-16 ("The subordination of black Americans (or any other group) is crucially affected by the images of the Other tucked away in the heads of the dominant group - and often in the heads of those who are subordinated.").
88. Cf. Eugene Volokh, Freedom of Speech and the Constitutional Tension Method, 3 U. CHI. L. SCH. ROUNDTABLE 223, 235 (1996);
89. DAVID E. BERNSTEIN, YOU CAN'T SAY THAT: THE GROWING THREAT TO CIVIL LIBERTIES FROM ANTIDISCRIMINATION LAWS 12-13 (2003). These scholars tend to downplay the extent to which current First Amendment doctrine involves balancing of competing interests, including interests that are not constitutional values. Existing First Amendment doctrine "almost inevitably reflects a complex effort to balance competing interests, to promote a multiplicity of values, and to reach practically and symbolically acceptable results."
90. Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994 SUP. CT. REV. 1, 23 (1994);
91. see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-1, at 792 (1988) ("The 'balancers' are right in concluding that it is impossible to escape the task of weighing the competing interests . . . .").
92. In several cases the Court has allowed impingements on First Amendment interests where the state's goal was to advance gender or racial equality. See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) (holding that any abridgement of U.S. Jaycees' First Amendment associational interests created by a state antidiscrimination ordinance was justified by the state's compelling interest in prohibiting gender discrimination); Metro Broad, v. FCC, 497 U.S. 547 (1990) (upholding FCC diversity regulations over First Amendment challenge), overruled in part on other grounds by Adarand Constr. v. Pena, 515 U.S. 200 (1995); Hishon v. King & Spalding, 467 U.S. 69 (1984) (rejecting law firm's claim that First Amendment allowed it to discriminate against female candidate for partner); Runyon v. McCrary, 427 U.S. 160 (1976) (rejecting private school's claim of First Amendment-based exemption from § 1981's ban on race discrimination in contracting because '"the Constitution places no value on discrimination . . . it has never been accorded affirmative constitutional protections'") (quoting Norwood v. Harrison 413 U.S. 455, 470 (1973)). Boy Scouts of America v. Dale, 530 U.S. 640 (2000), represents the other extreme, in which the First Amendment claim trumped the interest in eradicating sexual orientation discrimination. See also R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Although the Court has attempted to balance speech and equality, it has not done so in a very clear or principled fashion.
93. One way in which I attempt to alleviate the tension between equality and speech is to focus on the employment harms of discriminatory breakdowns rather than the representational harms of films. Under First Amendment doctrine, government generally cannot regulate based on the content or communicative impact of speech. See, e.g., R.A.V., 505 U.S. at 386. For instance, the Supreme Court held that states cannot single out race and sex-based "fighting words" "based on hostility - or favoritism - towards the underlying message expressed." Id. As I argue more fully below, regulating conduct, even if it imposes incidental burdens on speech, is more acceptable.
94. See, e.g., Devon Carbado & Mini Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1298 (2000).
95. 92.3% of the roles that featured nudity in the breakdowns sample were set aside for women, while just 7.7% were designated for men; see also LARSON, supra note 2, § 43.03, at 43-35 ("[Exploitation of sex, whether in theatres, night clubs, strip-tease joints, movies, or magazines has until recently almost exclusively taken the form of displaying the female body.").
96. Interview with Jane Jenkins, supra note 18.
97. Id.
98. CHARLES RAMÍREZ BERG, LATINO IMAGES IN FILM 67 (2002).
99. Id.
100. See A.O. Scott, Blacks Being Themselves, Not Symbols, N.Y. TIMES, Jan. 19, 2003, at 2-10 ("Even the characters played by [Halle] Berry and [Denzel] Washington, in 'Monster's Ball' and 'Training Day,' respectively, were to some degree still subservient to their white counterparts, whose struggles were dramatically central. Ms. Berry's role was to tame the demon of racism in the heart of a middle-aged white prison guard played by Billy Bob Thornton, while Mr. Washington . . . was a demon sent to test the innocence of a young white policeman played by Ethan Hawke."). Other familiar examples of white male centrality include Amistad and The Last Samurai.
101. See, e.g., JESSE ALGERON RHINES, BLACK FILM/WHITE MONEY 6 (1996) ("[T]here is . . . no doubt that because they are not white, Black men and women are generally relegated to the margins of the film industry."). Studios are more comfortable casting actors of color, such as Jennifer Lopez, despite their popularity, when they include a white star to ensure "mainstream" appeal.
102. See Patrick Goldstein, Marketing the Color Black: Strategies for 'Crossover' Films Fail to Stifle Charges of Racism, L.A. TIMES, Apr. 18, 1989, at 6-1 (A MGM executive stated, "It was clear to us that with two leading characters being black, it would be hard for us to make [The Mighty Quinn, a 1989 film starring Denzel Washington] a broad-based picture . . . Our previews told us it was much easier to attract a black audience than a non-black one - though once we got them into the theaters, they all enjoyed the film.").
103. Conventional Hollywood wisdom holds that young women will go to "boy"-skewing movies, but boys will not go to "girl" movies. Thus, movies that target female viewers tend to write off the lucrative young male demographic. See Interview with Jane Jenkins, supra note 18.
104. Denzel Washington has stated that sometimes he is not offered roles that go to comparable white actors. See Samuels, supra note 24, at 54. One of Washington's directors, who is white, agrees: '"Most roles are written disproportionately for white actors, and that's the truth of the matter,'" says Ed Zwick, who directed Washington in 'Glory,' 'Courage Under Fire' and 'The Siege.' 'Denzel isn't going to get the roles that Russell Crowe gets. He can't be in 'The Insider' or 'Gladiator,' and that's very limiting to an actor like him.'" Id.; see also Michael Fleming, Halle's Second Act, V LIFE, Sept. 2005, 62, 67, 85 (stating that "[Halle] Berry and [her manager] have fought long and hard against traditional limits placed on actresses of color to get her this far"); Interview with Reuben Cannon, supra note 16 (stating that some question whether Berry can green-light major films).
105. For instance, Wesley Snipes initially faced difficulty because "studio executives . . . would never hire anybody 'darker than Denzel.'" Lorenza Munoz, A Star Cools Down; Action. Drama. Comedy. Wesley Snipes Sizzled. And Then . . . He Didn't, L.A. TIMES, Aug. 1, 2004, at E1.
106. Benjamin Bratt, who is of Peruvian Indian heritage, was told that he could not be cast in the epic Troy [set in Asia Minor] because he was "too 'brown.'" Elaine Dutka, Overcoming a Question of Color, L.A. TIMES, June 13, 2004, at E19.
107. Hilary de Vries, All That Korean Rage, Unbottled, N.Y. TIMES, Oct. 17, 2004, at 2-12, 2-20. Oh's big breaks came from her then-husband, Alexander Payne, who cast her as a woman with a black child and white mother in Sideways, and from one of the few black women to run a major network TV show, Shonda Rimes.
108. See Matthew Fogel, 'Grey's Anatomy' Goes Colorblind, N.Y. TIMES, May 8, 2005, at 2-16.
109. Ta-nehisi Coates, The Color of Money, N.Y. TIMES, July 10, 2005, at 2-1.
110. See Interview with Reuben Cannon, supra note 16 (stating that very few black films lose money). These films tended to be profitable because they were made on much lower budgets than mainstream films (often less than $20 million), and black audiences reliably attended them.
111. Coates, supra note 79, at 2-1 (quoting Union as explaining: "I opted for some TV. There [is] just not a ton of work in film."). Omar Epps (House), Nia Long (Third Watch), and Mekhi Phifer (ER) are among the film stars that shifted to supporting television parts.
112. Martha M. Lauzen, The Celluloid Ceiling, Behind the Scenes and On-Screen Employment of Women in the Top 250 Films of 2002: Executive Summary 2 (2003) (unpublished manuscript, on file with author).
113. See 2003 SAG Casting Data, http://www.sag.org/Content/Public/ 03castingdatarpt.pdf (last visited Jan. 30, 2006).
114. SAG's membership roughly reflects the racial representation of working actors as described in the text. SAG's active members are 81% white, 12% black, 4% Latino, 2% Asian and 1% Native American. See E-mail from Elaine Gram of SAG to Russell Robinson, Aug. 28, 2006 (on file with the California Law Review).
115. See id.
116. These statistics were derived from IMDB.com, the Internet Movie Database, which is widely regarded as a definitive source of industry information as to films, casts and box office grosses.
117. See U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2004-2005, http://www.census.gov/prod/2004pubs/04statab/pop.pdf. I recognize that a court might use a different baseline if it were adjudicating a "pattern or practice" Title VII claim. Determining the proper baseline is somewhat complex. Although the Supreme Court has at times looked to general population racial demographics, see International Brotherhood of Teamsters v. United States, 431 U.S. 324, 338-340 (1977), precedent also suggests that a court must consider whether the general public has the qualifications for and interest in the job at issue. See, e.g., LARSON, supra note 2, § 9.04; EEOC v. Sears, 839 F.2d 302 (7th Cir. 1988). In evaluating a "lack of interest" defense, the court may consider whether the employer's discrimination has reduced interest among those subject to discriminatory policies. See Sears, 839 F.2d at 366 (Cudahy, J., concurring in part and dissenting in part). A court might also use Los Angeles and New York demographics, where most acting jobs originate, and these cities are more racially diverse than the national statistics.
118. Native Americans make up 1% of the general population. See, e.g., U.S. Census Bureau, Overview of Race and Hispanic Origin, http://www.census.gov/ prod/2001pubs/c2kbr01-1.pdf.
119. The significant differences were that African Americans gained some ground among second leads (15%) but dropped to 10% among third leads. Latinos experienced an uptick among second (3%) and third (4%) leads.
120. Lauzen, supra note 82, at 2; see also Susan Dominus, Why Isn't Maggie Cheung a Hollywood Star?, N.Y. TIMES MAG., Nov. 14, 2004, at 113 ("It's nearly impossible . . . to name a studio film in which an Asian-American actress plays the leading role, or the love interest, or even the love interest's best friend, outside of specifically Chinese films like 'The Joy Luck Club.'").
121. In contrast to about a dozen male actors of color (primarily African Americans) who are household names, only Jennifer Lopez, Halle Berry and Queen Latifah have attained that privileged status. See Stephanie Zacharek, Invisible Women, SALON, Mar. 18, 2002, http://www.salon.com ("[T]here are more movie stars - actors who can carry top billing in a film - among contemporary black male actors than among their female counterparts. Denzel Washington, Will Smith, and Eddie Murphy lead the pack; others, like Samuel L. Jackson, Laurence Fishburne, Wesley Snipes, Chris Rock and Martin Lawrence are less luminary but are nonetheless instantly recognizable to most moviegoers.").
122. See, e.g., Allison Samuels, Why Can't A Black Actress Play the Girlfriend?, NEWSWEEK, Mar. 14, 2005, at 52 (discussing studio's refusal to cast an African-American female actor opposite Will Smith in the hit Hitch). The studio cast Eva Mendes, a Latina, in an apparent attempt to avoid audience resistance to casting a white woman.
123. See Tom Carson, Skin Flicks, GQ, June 5, 2005, at 119 (citing Hitch as an example of "Hollywood's favorite way of dabbling in cross-racial sexuality without scaring moviegoers - the Latina Option."). It opted not to cast an African-American love interest because, in the words of actor Nia Long, "two black characters equals a black film and not just a movie about two people." Samuels, supra, at 52. Mendes acknowledges that "[c]ertainly I've benefited, because I've got to work with Ice Cube, Denzel and Will." Id.
124. See IMDB, Salary, http://pro.imdb.eom/name/nm0000255/ personal#salary (last visited Nov. 9, 2004) (listing Affleck's salary for Paycheck as $15 million).
125. See Interview with Robi Reed-Humes, supra note 34 (discussing salaries of African-American actors in urban films).
126. Richard Corliss, Babes in Boyland, TIME, July 14, 2003, at 56. Further, playing the girlfriend in a big hit is unlikely to pay off (beyond securing more girlfriend roles) for an actor because she is not perceived as the main draw of audiences. See id.
127. As New York Times critic A.O. Scott observed: "[T]he movies have largely treated black people as symbols of social pathology - as clowns and criminals and as agents for the moral advancement of white people." Scott, supra note 73, at 2-10. Thomas Edison, who "initiated mass film viewing with the introduction of the large-screen projector in New York City on April 23, 1896," produced films like The Watermelon Contest and Ten Pickaninnies, which presented African Americans as "human objects for viewer amusement," simpletons that were perpetually the butt of jokes. RHINES, supra note 74, at 14. In a different context, Ken Karst made a similar point about racial representations: "the Other is not a person but a projected abstraction: the white, looking at someone who is black, tends to see not the person but the image of blackness." Karst, supra note 60, at 124; see also Jerry Kang, Cyber-Race, 113 HARV. L. REV. 1130, 1167-68 (2000).
128. See, e.g., SUSAN GUBAR, RACECHANGES: WHITE SKIN, BLACK FACE IN AMERICAN CULTURE 56 (1997).
129. See id. at 79.
130. "Birth of a Nation was advertised upon its release as a film that would 'work audiences into a frenzy . . . it will make you hate.'" Margaret M. Russell, Race and the Dominant Gaze: Narratives of Law and Inequality in Popular Film, 15 LEGAL STUD. FORUM 243, 243 (1991).
131. GUBAR, supra note 96, at 57. The director instructed actor Walter Long, the white actor who played Gus, "to run doubled-over with a sort of 'animalistic scuttle' and to gargle with a bottle of hydrogen peroxide so as to create the effect of foaming at the mouth." Id.
132. See id. at 58.
133. See DONALD BOGLE, TOMS, COONS, MULATTOES, MAMMIES, AND BUCKS: AN INTERPRETIVE HISTORY OF BLACKS IN AMERICAN FILMS 4-18 (4th ed. 2001).
134. Consider a few hit movies starring African-American actors: Bad Boys 2 featured comic Martin Lawrence, rolling his eyes and hamming it up in the most coon-ish fashion, and Will Smith playing a "bad-ass" buck. Before that, we saw Bringing Down the House in which Queen Latifah rose to prominence by playing a ghetto girl, straight out of prison, who at one point gratuitously dresses up in a mammy's uniform to serve the Steve Martin character's white family and houseguest. Playing these bankable roles seems to be the price required of actors in order for them to gain access to the rare nuanced, complex role (see Latifah in Chicago), although there is no guarantee that movies refusing to serve up easily digestible stereotypes will succeed (see Denzel Washington's sorely overlooked Antwone Fisher).
135. In her standup comedy film I'm the One That I Want, actor-comedian Margaret Cho, the first Asian-American lead actor in a television sitcom, poignantly riffs on how executives hired an "Asian consultant" to make suggestions such as adding references to chopsticks and having Cho's character walk around without shoes. Similarly, the following casting call sparked controversy when it was posted on the UCLA Theatre Film and Television School's listserve: "Casting beautiful Asian women for Warner Bros.' The Last Samurai Premiere After-party to be held in Westwood on Dec 1st. Women will be dressed as village women from the film's wardrobe department and mingle 'in character' through the party, helping to create the ambience of ancient Japan, circa 1870's."
136. Mireya Navarro, Actors in All-Latino Cast Savor a 'Historic Moment', N.Y. TIMES, Dec. 2, 2003, at E1.
137. Edward Lee, Denigrating Asian Men, TORONTO STAR, Aug. 4, 2003, at A17.
138. See Jae-Ha Kim, "Geisha" Raises Fears of Stereotypical Movie Roles, CHI. TRIB., Dec. 14 2005, at C1.
139. Dominus, supra note 90, at 115.
140. See generally S. Elizabeth Bird, Gendered Construction of the American Indian in Popular Media, J. COMM. (Summer 1999).
141. BERG, supra note 71, at 66, 78; See also id. at 68-78 (discussing each stereotype in depth).
142. Valentino established this character in a famous scene from The Four Horsemen of the Apocalypse (1921) and went on to play romantic Others in The Sheik (1921), Son of the Sheik (1926) and Blood and Sand (1922). See id. at 76.
143. See, e.g., Karst, supra note 60, at 128 (describing "[s]exuality and maternity" as the "focal points" of the "under-personification" of "real women") (quoting D. DINNERSTEIN, THE MERMAID AND THE MINOTAUR: SEXUAL ARRANGEMENTS AND THE HUMAN MALAISE (1976)).
144. See, e.g., Richard Corliss, Girls Just Wanna Have Guns, TIME, Apr. 22, 2002, at 58.
145. See, e.g., Dave Karger & Missy Schwartz, A Few Good Women, ENT. WKLY., Dec. 2, 2005, at 14 ("The lack of solid roles for women in Hollywood has been decried for decades. Yet things have arguably worsened recently, and that's with production at four of the six traditional major studios overseen by women.").
146. See Amy Wallace, And The Oscar Does Not Go To . . ., N.Y. TIMES, Mar. 23, 2003, at 9-1 ("[A]ctresses often need not apply if they won't appear naked in films . . . ."). Women who won Oscars for roles that entailed nudity include Halle Berry (Monster's Ball), Gwyneth Paltrow (Shakespeare in Love) and Holly Hunter (The Piano). Beyond the realm of Oscar, Demi Moore secured an at-the-time unprecedented $12.5 million paycheck for starring in Striptease. Sharon Stone made her name with a scene from Basic Instinct in which she famously uncrossed her legs. It is difficult to think of male actors whose careers have been similarly defined by nudity. Male frontal nudity is considered controversial and often censored by the Motion Picture Association of America, which determines movie ratings. See Cesar G. Soriano & Jim Cheng, Male Frontal Nudity in the Movies Uncovers an Old Debate, USA TODAY, Nov. 19, 2004, at E1.
147. See Doris Bazzini et. al., The Aging Woman in Popular Film: Underrepresented. Unattractive, Unfriendly, and Unintelligent, 36 SEX ROLES 531, 541 (1997) (finding that "older females were perceived as less friendly, less intelligent, less good, possessing less wealth, and being less attractive.").
148. For instance, several commentators have noted that beauty is a key factor in awarding Academy Awards to women, but not men. See, e.g., Tom O'Neil, Hey Good-Looking, This One's Not for You, N.Y. TIMES, Jan. 2, 2005, at C1. The Academy seems to have a particularly hard time resisting women who cover their beauty for the sake of the performance and yet return gloriously to feminine form in time to pick up their awards (see Charlize Theron in Monster, Halle Berry in Monster's Ball, Nicole Kidman in The Hours, Hilary Swank in Boys Don't Cry).
149. See, e.g., Weiner, supra note 19, at 42; Bazzini, supra note 115, at 541. Hence, male actors like Anthony Hopkins, Jack Nicholson, Clint Eastwood, Sean Connery and Morgan Freeman continue to top-line big-budget films and earn tens of millions of dollars for lead roles well into their sixties and beyond. Comparable female lead actors are almost nonexistent. The closest may be Susan Sarandon, who, at fifty-seven, continues to be viewed as sexy, against all odds. Sarandon nonetheless earns less and performs in more supporting roles than her male counterparts.
150. See Tom King, Hollywood's Fountain of Youth, WALL ST. J., Apr. 12, 2002, at W9 (reporting that Robert De Niro, who was then fifty-eight, nixed the casting of Reese Witherspoon, twenty-five, because he "felt like he could be her grandpa"); Interview with Robi Reed-Humes, supra note 34 (comparing careers of Jessica Lange and Clint Eastwood). Apparently this trend has not yet reached its nadir if the announced (but scuttled) pairing of Winona Ryder (thirty-two) and Sean Connery (seventy-three) is any indication. See Gregory Kirschling, The Deal Report, ENT. WKLY., July 18, 2003, at 17.
151. See Bird, supra note 108, at 63 (discussing incident where Native American female actor was told to redo a scene where she wept because expressing emotion was inconsistent with the stereotype of Native Americans as stoic).
152. See, e.g., Bielby & Bielby, supra note 19, at 25 ("Hollywood executives strongly believe that black writers can only write about African Americans, while white writers can write about the experiences of any racial or ethnic minority group. This same logic leads to the near exclusion of Latino, Asian-American and Native-American writers in Hollywood.").
153. See id. at 23 ("Typecasting is a basic business principle in Hollywood . . . .").
154. Actor Michael Michele, a black woman who has successfully negotiated this double bind, explains the dilemma: "I had to make a definitive choice early on in my career to play certain types of roles. . . . I would have probably worked more often, and perhaps larger roles, had I chosen . . . female roles that were an extension of the male characters. . . I chose another path." Being more selective ultimately enabled her to play non-stereotypical parts: "doctors, lawyers, [and] cops." Chappell, supra note 27, at 156.
155. See, e.g., Bazzini, supra note 115, at 541 (study of twenty top-grossing films which found that "[e]ighty percent of characters over the age of 35 were male, whereas only 20% were female"); see also id. at 533 (discussing age discrepancy between men and women who won Oscars).
156. See Donna Freydkin, Two Actresses After 40: One Struggles, One Succeeds, USA TODAY, Feb. 18, 2005, at 12E.
157. It is true that Ryan played a few dramatic roles and Foster played an occasional romantic lead. But the point is that these roles (which were not as successful) were viewed as diversions from the actor's central "type" and failed to dislodge the industry's initial perceptions of each actor.
158. See, e.g., Stephen Holden, Beyond Asian Stereotypes, This Comic Settles Scores, N.Y. TIMES, Aug. 4, 2000, at E22 (recounting how executives pressured comedian-actor Margaret Cho to lose 30 pounds in two weeks, which led to kidney failure).
159. There is doctrine suggesting that at least some of these harms are redressable under Title VII, even if they are not integral to the specific lawsuit examined in this Article. For instance, agreeing to hire but assigning actors to particular jobs based on stereotypes would likely violate Title VII. On its face, Title VII forbids an employer to "limit, segregate, or classify" an applicant or employee based on race or sex. 42 U.S.C. § 2000e-(2)(a)(2) (2005), See also, e.g., Bridgeport Guardians v. Delmonte, 553 F. Supp. 601, 611 (D. Conn. 1983) (finding, among other violations, that assignment of black and Latino officers to poor, crime-ridden neighborhoods violated Title VII); Knight v. Nassau County Civil Serv. Comm'n, 649 F.2d 157, 162 (2d Cir. 1981) (finding that assignment of black employee to minority recruitment job "based on a racial stereotype that blacks work better with blacks and on the premise that Knight's race was directly related to his ability to do the job" violated Title VII); cf. Ferrill v. Parker Group, Inc., 168 F.3d 468, 473 (11th Cir. 1999) (stating that § 1981 test for intentional discrimination is same as Title VII's and holding that assignment of telemarketers by race violated the law).
160. Although I focus on Title VII, a plaintiff alleging race discrimination could also sue under Section 1981, which prohibits racial discrimination in contracting. See 42 U.S.C. § 1981(a)-(c) (2005). However, Section 1981 does not ban sex discrimination. See id. Like Title VII, it does not contain a BFOQ for race. See Ferrill, 168 F.3d at 468. One scenario that might prompt an actor to sue under Section 1981 rather than Title VII would be if the actor used a "loan out" corporation. Because of the various legal benefits attached to the corporate form, an entertainer may set up a corporation, which then provides the entertainer's services. Under such arrangements, the studio would formally contract with the loan out corporation. A race-based refusal to contract with a corporation identified with a particular actor could give rise to liability under Section 1981.
161. 42 U.S.C. § 2000e-3(b) (2005). The statute defines "employment agency" as "any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person." Id. at § 2000e(c).
162. 539 U.S. 90 (2003).
163. See id. at 94; 42 U.S.C. § 2000e-2(m) (2005).
164. See 42 U.S.C. § 2000e(b) (2005) ("The term 'employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . ."). The statute simply defines an "employee" as "an individual employed by an employer." Id. at § 2000e(f).
165. See, e.g., Reidt v. County of Trempealeau, 975 F.2d 1336, 1340-41 (7th Cir. 1992) (distinguishing cases "involving a facially discriminatory employment policy . . . from the more typical disparate treatment case"); Gerdom v. Cont'l Airlines, 692 F.2d 602, 608 (9th Cir. 1982) (stating that "in some cases facially different treatment itself implies intent" to discriminate).
166. See Int'l Union v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991).
167. See 42 U.S.C. § 2000e-2(m) (2005) ("[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.") (emphasis added).
168. Id.; Desert Palace Inc. v. Costa, 530 U.S. 90, 94-95 (2003).
169. If somehow the actor was able to secure an audition, despite the breakdown, but suspected that she lost the role because she was the "wrong" sex or race, she would likewise have to overcome the studio's showing that she would have lost the role even if sex or race had not been a factor in order to obtain damages. In the absence of a breakdown, she might not even be able to show that sex or race was a "motivating factor."
170. See 42 U.S.C. § 2000e-5(g)(2)(B) (2005).
171. The business necessity defense would not apply here because it applies only in disparate impact cases. See Int'l Union v. Johnson Controls, Inc., 499 U.S. 187, 199-200 (1991).
172. 42 U.S.C. § 2000e-2(e) (2005).
173. Id. at § 2000e-3(b).
174. Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir. 1971).
175. Dothard v. Rawlinson, 433 U.S. 321, 334 (1977); Johnson Controls, 499 U.S. at 201; Chambers v. Omaha Girls Club, 834 F.2d 697, 704 (8th Cir. 1987); see also LARSON, supra note 2, § 43.01, at 43-3.
176. 29 C.F.R. § 1604.2(a)(2).
177. See, e.g., Rosenfeld v. S. Pac. Co., 444 F.2d 1219, 1224 (9th Cir. 1971).
178. 517 F. Supp. 292 (N.D. Tex. 1981); See also Diaz, 442 F.2d at 389 (rejecting BFOQ argument for flight attendant position).
179. Case, supra note 57, at 12 n.23; LARSON, supra note 2, § 43.01, at 43-1 (stating that the "extremely narrow" BFOQ exception "usually refers to gender or gender characteristics as such, rather than to nonsexual traits that are associated with one sex either by widely prevalent stereotyped views or even by statistically provable evidence").
180. Movies frequently depend on viewers' accepting the legitimacy of numerous depictions that defy reality, such as when two straight actors play star-crossed gay lovers (Brokeback Mountain), an American actor plays a quintessentially British role (Renée Zellweger in Bridget Jones's Diary) or vice versa (Anthony Hopkins in Nixon), an actor well into her thirties or forties is hired to play a teenager (Barbra Streisand in Yentl) or a young star plays a character that ages into a senior citizen over the course of the film (as in many biographies of famous figures). See King, supra note 118, at W9. The TV shows Friends, Will & Grace and Frasier expected viewers to ignore that very pregnant cast members were playing thin, non-pregnant characters. (This discrepancy was most striking during Friends' final season when Courtney Cox's character Monica struggled with infertility while Cox was visibly pregnant.).
181. See infra notes 327-329.
182. See 29 C.F.R. § 1604.2(a)(2) (West 2006) (prohibiting the "refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers").
183. See, e.g., Diaz, 442 F.2d at 387 (refusing to rely on customer preferences for female flight attendants because that rationale could "emasculate" Title VII); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1277 (9th Cir. 1981) ("[T]he need to accommodate racially discriminatory policies of other nations cannot be the basis for a valid BFOQ exception."); Gerdom v. Cont'l Airlines, 692 F.2d 602, 603 (9th Cir. 1982) ("While we recognize that the public's expectation of finding one sex in a particular role may cause some initial difficulty, it would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid."); Sw. Airlines, 517 F. Supp. at 302 n.25 ("If an employer could justify employment discrimination merely on the grounds that it is necessary to make a profit, Title VII would be nullified in short order."); see also Alan Wertheimer, Jobs, Qualifications, and Preferences, 94 ETHICS 99, 107 (1983) (identifying reactions to "innate characteristics" and assumptions "based on hierarchical judgments about social groups" as preferences that are likely illegitimate). There is language in Southwest Airlines indicating that Southwest simply failed to provide sufficient evidence that its "Love" campaign was "reasonably necessary" to its success in the market, but the opinion ultimately seems to rest on a categorical rejection of profit-based justifications for discrimination. See Southwest Airlines, 517 F. Supp. at 302 n.25; LARSON, supra note 2, § 43.01, at 43-1 (noting that courts have rejected BFOQ arguments based on "statistically provable evidence"). An exception is Craft v. Metromedia, Inc., 766 F.2d 1205 (8th Cir. 1985), which held that using viewer surveys to evaluate newscaster Craft's appearance and add "feminine touches" to her image did not constitute discrimination. The court brushed aside Craft's claim that the underlying customer preferences were based on gender stereotypes. See id. at 1214.
184. Sw. Airlines, 517 F. Supp. at 301.
185. Id.
186. See Diaz, 442 F.2d at 386; See Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CALIF. L. REV. 1, 18-19 (2000) (stating that a broad construction of the BFOQ exception in the sex context would "entirely blunt" the "transformative thrust of Title VII"); see also Wertheimer, supra note 151, at 99, 101 (noting that customer reactions are implicated by "a wide spectrum of jobs and personal characteristics" because "many jobs in a modern society involve some form of interpersonal relations - advising, ordering, teaching, selling"). Despite such preferences, a "society may refuse to honor certain preferences in order to symbolize and promote its views about the sorts of characteristics that should (not) matter to the way its citizens think about each other." Wertheimer, supra note 151, at 111.
187. See Post, supra note 154, at 22 n.101.
188. 517 F. Supp. at 301.
189. See, e.g., United States v. Virginia, 518 U.S. 515 (1996).
190. 29 C.F.R. § 1604.2(a)(1)(ii) (West 2006).
191. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1999); Rosenfeld v. S. Pac. Co., 444 F.2d at 1225 ("Based on the legislative intent and on the Commission's interpretation, sexual characteristics, rather than characteristics that might, to one degree or another, correlate with a particular sex, must be the basis for the application of the BFOQ exception.").
192. 29 C.F.R. § 1604.2(a)(1)(ii) (West 2006).
193. See Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141 (1976), superseded by the Pregnancy Discrimination Act on other grounds (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
194. Gilbert, 429 U.S. at 141.
195. See, e.g., id. at 143-46 (rejecting EEOC Guidelines suggesting that denial of pregnancy benefits constitutes sex discrimination); see also Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986) (relying on guidelines where they "appropriately drew from, and were fully consistent with, the existing case law").
196. See LARSON, supra note 2, § 43.02, at 43-4 ("The clearest [BFOQ case] is that in which a physical feature unique to one sex is essential to the performance of the job" such as a "wet nurse"); id. at § 43.04, at 43-55 ("The two major Supreme Court cases on sex as a BFOQ - Dothard and Johnson Controls - both turned on unique qualities of the female sex rather than typical characteristics."); cf. Virginia, 518 U.S. at 533-34 (stating that government can take physical differences into account without violating equal protection).
197. Even if the guidelines were controlling, they would not legitimate all sex discrimination in casting. The comment authorizes discrimination only when "necessary" for purposes of "authenticity or genuineness."
198. See Kimberly A. Yuracko, Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination, 92 CALIF. L. REV. 147, 149-54 (2004).
199. See id. The other main strand of BFOQ cases, which would not be directly implicated by casting, is the privacy cases. Courts have permitted employers to respond to reasonable privacy expectations and consider sex in hiring private nurses and restroom attendants. There are also a few additional, unrelated cases, including Chambers v. Omaha Girls Club, 834 F.2d 697, 704 (8th Cir. 1987), which upheld the right of a club for girls to fire an unwed pregnant employee, and the Supreme Court cases, Johnson Controls, which involved health risks to pregnant employees, and Dothard, which involved prison security. Int'l Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991); Dothard v. Rawlinson, 433 U.S. 321 (1977).
200. See Yuracko, supra note 166, at 149-50.
201. Wilson v. Sw. Airlines, 517 F. Supp. 292 (N.D. Tex. 1981).
202. Id. at 294-95.
203. Id. at 294. The selective hiring policy buttressed an extensive advertising effort: "[u]nabashed allusions to love and sex pervade[d] all aspects" of the campaign, which encompassed "newspaper, magazine, billboard and television advertisements," including an Esquire magazine cover photograph featuring an actual Southwest flight attendant. The ticketing system even included a "quickie machine" promising "instant gratification." Id. at 294 n.4 (internal quotation marks omitted).
204. Id. at 302.
205. See St. Cross v. Playboy Club, Appeal No. 773, Case No. CFS 22618-70 (N.Y. Human Rights Appeal Board, 1971) (discussing stripper exception); Weber v. Playboy Club, Appeal No. 774, Case No. CFS 22619-70 (N.Y. Human Rights Appeal Board, 1971) (same).
206. Yuracko, supra note 166, at 160.
207. The inherent essence theory fails because of the mutability and socially contingent nature of goods and modern businesses. See id. at 162. Within a particular industry, there is significant variation in business plans across various eras and regions, and there appears to be no easily identifiable "inherent" purpose of a business. See id. The shared meaning approach also fails. Most would agree that the essence of a janitorial services company is to provide cleaning services. Yet courts permit companies to assign women to clean female restrooms and men to male restrooms despite any belief that the sex of the custodian enhances cleanliness. See id. at 168. The employer-defined conception clearly cannot explain the consistent judicial rejection of discriminatory policies in the flight attendant cases and other cases where businesses wanted to brand themselves through exploiting the sexuality of female employees. See id. at 168-69. Finally, decisions refusing to let employers like Southwest Airlines sell female sexuality do not rest on judicial assessments that customers do not "really" want such services, but that customer desires are irrelevant to Title VII. See supra note 151. The customer-defined conception thus cannot explain the BFOQ case law. See Yuracko, supra note 166, at 171.
208. See Yuracko, supra note 166, at 184-85. But if these cases are really about substantive gender equality, one might ask, why do courts permit discrimination in the hiring of strippers or Playboy Bunnies, since these most sexualized jobs are perhaps the most demeaning to women? The narrow exception for the sex industry allows the courts to give some meaning and content to the BFOQ exception, which it must do because Congress created the exception. At the same time, this interpretation creates a clear boundary for sexualized jobs, which prevents their spread.
209. Yuracko, supra note 2, at 172, 230; Case, supra note 57, at 68 ("[Conventionally feminine apparel has often been used as a mark of feminine subordination."). For example, in an article on Valet of the Dolls, an L.A.-based all-female valet service, the owner explained that her business strategy entails marketing "fun, sexy, wild women" who are instructed to "be playful and make conversation with waiting guests," rather than emphasizing the quick retrieval of cars. Janelle Brown, Baby, You Can Park My Car, N.Y. TIMES, Mar. 27, 2005, at 9-1. A male rival dismissed his competition, saying "When people say that it's cute, I tell them to buy a puppy . . . when you are dealing with people's cars, it's about your professional standards." Id.; cf. EEOC v. Joe's Crab, Inc., 220 F.3d 1263, 1269-70, 1283 (11th Cir. 2000) (discussing finding that fine dining restaurant preferred to hire men because "the highest level of food service is performed by men" in the "'Old World' European tradition").
210. See, e.g., EEOC v. Sage Realty Corp., 507 F. Supp. 599, 609-10 (S.D.N.Y. 1981).
211. Courts would have a hard time drawing the line in a few respects. First, based on what principle could a court permit a company to feature
212. An interesting question raised by these decisions is why the courts have not adopted an intermediate position. A court could permit a business to add sex appeal as a job qualification so long as it does so in an evenhanded manner. Businesses like Hooters restaurants could be required to have a section that caters to (heterosexual) men and another that caters to (heterosexual) women. Consequently, the business (perhaps renamed something like Hooters & Pecs) would offer equal employment opportunities to both men and women, although servers would be steered to different sections based on their sex. Cf. United States v. Virginia, 518 U.S. 515, 540 (1996) (suggesting that separate educational institutes could be constitutional if Virginia provided equally for her sons and daughters).
213. See, e.g., Yuracko, supra note 166, at 61 ("There is a much greater demand for the commodification and sale of female sexuality than there is demand for the commodification and sale of male sexuality."); LARSON, supra note 2, § 43.03, at 43-35 ("[E]xploitation of sex, whether in theatres, night clubs, strip-tease joints, movies, or magazines has until recently almost exclusively taken the form of displaying the female body."). 92.3% of the roles that featured nudity in the breakdowns sample were designated for women, and 7.7% were designated for men. In general, it seems likely that most male business owners would not be as comfortable marketing male sexuality. Although some might respond that the "one-sided sexual character" of such entertainment is explained by men being more "sexual" than women and thus generating a greater demand for female sexuality, such "preferences" are inextricably intertwined with the different ways in which the genders are socialized to think about sex and express their sexuality. Cf. LARSON, supra note 2, § 43.03, at 43-35.
214. 458 U.S. 718 (1982); see also Gerdom v. Cont'l Airlines, 692 F.2d 602, 607 (9th Cir. 1982) (relying on Hogan, 458 U.S. at 718).
215. See Hogan, 458 U.S. at 729-30; see also Craft v. Metromedia, Inc., 766 F.2d 1205 (8th Cir. 1985) (discussing allegation that station created new female anchor position to "'soften' its news presentation"); EEOC v. Joe's Crab, Inc., 220 F.3d 1263, 1284 (11th Cir. 2000) (recounting allegation that female wait-staff applicants were directed to take-out section because "no women were hired to work in the main dining room").
216. Among these cases, the most clearly expressive defendant is the TV station sued by a female news anchor in Craft. Other cases involved a casino, which typically provides gaming and entertainment in addition to food and drink, and a restaurant, the design of which often includes creative aspects. See Jespersen v. Harrah's Operating Company, 444 F.3d 1104, 1107-08 (9th Cir. 2006) (casino); Joe's Crab, 220 F.3d at 1263 (restaurant).
217. One Ninth Circuit judge expressly rejected such a result, stating "Title VII does not make exceptions for particular industries, and we should not write them in." Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1085 (Thomas, J., dissenting).
218. See id. at 1083 (majority opinion). The Ninth Circuit reheard the case en banc and affirmed the panel decision. See Jespersen v. Harrah's Operating Company, 444 F.3d 1104 (9th Cir. 2006).
219. Jespersen, 444 F.3d at 1112.
220. Id. at 1118 (Kozinski, J., dissenting).
221. Id. at 1112-13 (majority opinion).
222. Id. at 1117 (Kozinski, J., dissenting).
223. Id. at 1112 (majority opinion). The Ninth Circuit en banc opinion barely acknowledged the evidence that Jespersen submitted. The earlier panel opinion had acknowledged her evidence but found it lacking because "Jespersen cites to academic literature discussing the cost and time burdens of cosmetics generally, but she presents no evidence as to cost and time burdens that must be borne by female bartenders in order to comply with the makeup requirement." Jesperson, 392 F.3d at 1081.
224. Jesperson, 444 F.3d at 1112. The court did suggest that it would have ruled in Jespersen's favor if the policy had required women to dress in "sexually provocative" outfits and "stereotype[d] women as sex objects." Id.
225. Jesperson, 392 F.3d at 1086 (Thomas, J., dissenting); see also Carroll v. Tallman Fed. Sav. & Loan Ass'n, 604 F.2d 1028, 1033 (7th Cir. 1978) (holding that a bank's requirement that only female employees wear a uniform was "demeaning to women" in light of "natural tendency to assume that the uniformed women have a lesser professional status than their male colleagues attired in normal business clothes"). The Carroll majority concluded that the bank's justification, which was that only women were prone to engage in a "dress competition" resulting in inappropriate outfits, was based on "offensive stereotypes prohibited by Title VII." Id.
226. Cf. Yuracko, supra note 2, at 188 ("In a gendered society, women and men simply cannot possess the same trait in precisely the same way.").
227. See Post, supra note 154, at 18-20, 21; Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 31 (1995) ("[T]he law reserves a large area for legitimate sex-based regulation - an area bounded by the notion of factually real and legally relevant sexual differences."); Case, supra note 57, at 60-70 (discussing judicial resistance to claims that gender-specific grooming standards are sex discrimination under Title VII, despite the statute's plain language).
228. Joe's Crab, 220 F.3d at 1284; see also Hopkins, 490 U.S. at 250-51; Gerdom, 692 F.2d at 603; Carroll, 604 F.2d at 1030.
229. Craft, 766 F.2d at 1215.
230. The Larson treatise's analysis of the BFOQ exception mirrors the ambivalence of Title VII decisions in trying to explain BFOQ law. Larson suggests that the employer-defined conception of business essences should govern. Thus, he champions "topless restaurants" because "no one should tell [business owners] that they must hire an equal number of members of the other sex, for the simple reason that this would change the 'product' itself." LARSON, supra note 2, § 43.03, at 43-35. He would also permit fancy restaurants to hire a "male only" wait staff because "it is difficult to see why the style of a restaurant, such as a 'topless' restaurant, operating on the ragged outermost edge of contemporary moral standards should enjoy full legal protection for its brand of sex discrimination in employment when the same protection is denied to a restaurant trying with equal devotion to keep alive an old-fashioned dining tradition requiring no greater sex discrimination than the topless restaurant." Id. § 43.03, at 43-38. He would draw the line at Southwest's sexy flight attendants because removing sex appeal from the "product" would not constitute an "essential change." Id. § 43.03, at 43-44. But one could easily conclude that male waiters are not "essential" to a fine dining experience. If the employer should have the liberty to design a restaurant to couple female sex appeal or male-oriented ambience with food, it is hard to see why he should not be able to sell the same with airline travel.
231. Cf. Post, supra note 154, at 32 (suggesting that courts are sensitive to specific industry contexts and that "the airline industry is not equivalent to the television business").
232. See 42 U.S.C. § 2000e-2(e) (2005).
233. Espinoza v. Farah Man. Co., 414 U.S. 86, 88 (1973); see also Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987) (holding that professor made out claim of racial discrimination under Section 1981, which does not ban national origin discrimination, where he alleged discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin).
234. See 42 U.S.C. § 2000e-2(e) (2005).
235. Id.
236. Cf. Espinoza, 414 U.S. at 92 (holding that Title VII does not bar discrimination based on citizenship but that employers cannot use citizenship test "as a pretext to disguise what is in fact national origin discrimination").
237. See Wittmer v. Peters, 87 F.3d 916, 918 (7th Cir. 1996) (permitting racial preference by government employer under Equal Protection Clause, but not resolving Title VII question); see generally Paul Frymer & John D. Skrentny, The Rise of Instrumental Affirmative Action: Law and the New Significance of Race in America, 36 CONN. L. REV. 677 (2004).
238. 110 CONG. REC. 7213, 7217 (1964).
239. Id.
240. See POST, PREJUDICIAL APPEARANCES, supra note 6, at 48 n.168. Relatedly, some commentators have suggested the possibility of amending Title VII to permit casting discrimination. See Frank, supra note 10; see also K. Anthony Appiah, Stereotypes and the Shaping of Identity, in ROBERT POST, PREJUDICIAL APPEARANCES 55, 62 (2001) ("[W]e ought to admit the possibility of a BFOQ in the case of race, as the federal law does not, because there seems nothing harmful, in a realist production, in requiring that we have actors who look - and sound - like people of whatever racial identity they are representing.").
241. See Post, supra note 154, at 16 (stating that antidiscrimination law is a "practical, ramshackle institution, full of compromise and contradiction").
242. See. e.g., Adarand Constr. v. Pena, 515 U.S. 200 (1995).
243. See, e.g., Nguyen v. INS, 533 U.S. 53 (2001); see also Kenji Yoshino, Covering, 111 YALE L.J. 769, 875-76 (2002) (discussing the "gap between the perceived illegitimacy of race discrimination and that of sex discrimination"). Intermediate scrutiny's malleability allows it sometimes to resemble strict scrutiny in particular cases. See United States v. Virginia, 518 U.S. 515 (1996). I also acknowledge that even the meaning of strict scrutiny at times may vary from case to case. See Grutter v. Bollinger, 539 U.S. 306 (2003).
244. Virginia, 518 U.S. at 533.
245. See, e.g., Nguyen, 533 U.S. 53.
246. See Hooters, http://www.hooters.com (Feb. 10, 2006).
247. Editorial, Don't Go if You Don't Like It, BOSTON HERALD, May 3, 1996, at 28.
248. Op Ed, Hooters Ruling Trivializes Discrimination, WIS. ST. J., Nov. 26, 1995, at 3B.
249. Editorial, EEOC Gets Grip, COLUMBUS DISPATCH, May 7, 1996, at 6A.
250. See Adam Zagorin, Sexism Will Be Served, TIME, Oct. 13, 1997, at 65. Hooters is not alone in exploiting the sexuality of its employees, despite contrary case law. Past or present examples include a real estate company's desire to enhance its lobby by instructing female attendants to wear sexy themed outfits, EEOC v. Sage Realty Corp., 507 F. Supp. 599 (S.D.N.Y. 1981), a restaurant fostering an "Old World" - and all-male - European ambience, Joe's Crab, 220 F.3d at 1263, 1269-70, and a "Valet of the Dolls" parking service staffed by aspiring female actors who wear "lacey camisoles," "miniskirts" and if requested, costumes such as "naughty Santas, ski bunnies and burlesque dancers." Brown, supra note 177, at 9-1.
251. A race-based example is Abercrombie & Fitch's adoption of a blond, blue-eyed marketing image and attendant direction of sales clerk applicants who do not fit that image to behind-the-scenes janitorial jobs. See Steven Greenhouse, Clothing Chain Accused of Discrimination: Lawsuit Says Abercrombie & Fitch Favors White Job Candidates, N.Y. TIMES, June 17, 2003, at A21.
252. The chain's advertising emphasized models who were "overwhelmingly white and who seemed to have stepped off the football field or out of fraternities or sororities." Steven Greenhouse, Abercrombie & Fitch Bias Case Is Settled, N.Y. TIMES, Nov. 17, 2004, at A16. But in contrast to the Hooters incident, civil rights groups successfully sued Abercrombie, forcing it to pay a major settlement and agree to integrate its staff and advertisements. See id.
253. For example, one way of understanding the California Supreme Court's rejection of a sexual harassment lawsuit brought by a writer's assistant on the TV show Friends is that the court increased the plaintiffs required evidentiary showing in order to prevent similar suits from being brought against entertainment companies. See Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264 (2006).
254. Describing film as "a significant medium for the communication of ideas," the Court has protected film, like other artistic expression, primarily because it can shape public attitudes and opinions. See Burstyn v. Wilson, 343 U.S. 495, 501 (1952); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (invalidating a federal pornography statute that could have criminalized depictions of under-age sexuality in films like American Beauty and Traffic, even when the actor was over 18); Kingsley Int'l Pictures v. Regents of the Univ. of the State of New York, 360 U.S. 684 (1959) (forbidding New York from conditioning the grant of a license to the film Lady Chatterley's Lover on agreement to delete three scenes that the state deemed "immoral").
255. 413 U.S. 376 (1973).
256. Id. at 379. The ordinance was similar to Title VII's prohibition on printing discriminatory advertisements, both of which permit sex designations when the employer can show a BFOQ. See id. at 378.
257. Id. at 382 (quoting Associated Press v. Nat'l Labor Relations Bd., 301 U.S. 103, 132 (1937)); see, e.g., Leathers v. Medlock, 499 U.S. 439, 447 (1991) (holding that application of sales tax to cable television services did not violate First Amendment); Branzburg v. Hayes, 408 U.S. 665 (1972) (holding that reporters may be required to testify before grand jury pursuant to general criminal laws); Associated Press, 301 U.S. at 123 (applying labor law regulating newspaper's employment decisions over First Amendment defense). The Supreme Court has also reaffirmed this principle in cases that struck down laws that were not generally applicable because they singled out the press or certain publications. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 227-28 (1987); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Rev., 460 U.S. 575, 582, 591-92 (1983). But see Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 CORNELL L. REV. 1277, 1293-1301 (2005) (arguing that "content-based as applied" laws should receive strict scrutiny even if such applications are pursuant to generally applicable laws).
258. Some scholars have expressed concern that "the First Amendment has to limit the legislature's power to enact 'general' statutes that aim at prohibitable conduct but sweep in speech that the legislature adjudges harmful only because of its content." Fallon, supra note 64, at 15-16; Post, supra note 154, at 1258; Volokh, Speech as Conduct, supra, at 1302-1303; Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA. REV. 1791, 1830-31(1992) [hereinafter Volokh, Comment] (citing United States v. O'Brien, 391 U.S. 367 (1968)). In such cases, even a generally applicable law might inflict an "impermissibly severe" burden on expression. Shulman v. Group W Prods., Inc., 18 Cal. 4th 200, 242 (1998). Other scholars, however, suggest that a search for illegitimate legislative purpose is sufficient to invalidate such laws, and that O'Brien, the principal case cited in support of applying heightened scrutiny to general laws, contains "demonstrably flawed" analysis.
259. E.g., Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REV. 767, 770-78 (2001). Rubenfeld persuasively argues that O'Brien, if taken at face value, would permit many people who break the law to claim that they were engaging in expressive conduct and thus subject any generally applicable law to First Amendment scrutiny. He illustrates this problem with a scenario involving a speeding driver who claims that he is engaging in performance art. See id. By dramatically enlarging the category of laws that raise speech concerns and must pass intermediate scrutiny, O'Brien could become another Lochner. See Lochner v. New York, 198 U.S. 45 (1905) (invalidating labor law based on expansive, and now discredited, conception of substantive due process)
260. Pittsburgh Press, 413 U.S. at 383.
261. See id. at 384-85 (citing Valentine v. Chrestensen, 316 U.S. 52 (1942)).
262. Id. at 385; see Ragin v. New York Times, 923 F.2d 996, 1002-03 (2d Cir. 1991) (relying on Pittsburgh Press to reject First Amendment defense to Fair Housing Act claim).
263. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563 (1980) (emphasis added).
264. Pittsburgh Press, 413 U.S. at 388.
265. Dothard v. Rawlinson, 433 U.S. 321, 334 (1977).
266. Pittsburgh Press, 413 U.S. at 386.
267. Rumsfeld v. FAIR, 126 S. Ct. 1297, 1308 (2006).
268. See, e.g., Ragin v. New York Times, 923 F.2d 996, 998, 1002-03 (2d Cir. 1991) (rejecting First Amendment defense to lawsuit against the New York Times for running real estate ads in which owners and renters were depicted with white models and black models were used to represent doormen and custodians); United States v. Hunter, 459 F.2d 205 (4th Cir. 1972) (permitting regulation of advertisement for apartment for rent in a "white home").
269. See, e.g., Texas v. Johnson, 491 U.S. 397, 414-15 (1989).
270. Hill v. Colorado, 530 U.S. 703, 719 (2000); see also Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175, 1201 (1996) ("Content-based regulations aim at the communicative impact of communicative activity, whereas content-neutral regulations merely have an adverse effect.");
271. Neil W. Netanel, Locating Copyright Within the First Amendment Skein, 54 STAN. L. REV. 1, 35 (2001) ("[C]ontent- neutral restrictions do not raise the same suspicion of improper government purpose or motive that underlies First Amendment treatment of content-based regulations."); see generally Rubenfeld, supra note 223 (arguing that legislative purpose is central in First Amendment doctrine).
272. R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) ("[T]he ordinance applies only to 'fighting words' that insult, or provoke violence, 'on the basis of race, color, creed, religion or gender.' Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics.").
273. See id. at 389; see also id. at 390 ("Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy."). Sexual harassment regulations and case law have raised serious questions about the extent to which Title VII suppresses protected speech in the workplace insofar as the speech contributes to a hostile working environment. Although R.A.V. indicated that Title VII harassment law permissibly regulates unprotected "fighting words" as well as some speech that would be protected if it were uttered outside the workplace, id. at 389 (noting that Title VII bans "sexually derogatory 'fighting words,' among other words") (emphasis added), the Court has not fully explained the extent to which Title VII suppresses racist and sexist speech. Nor has it fleshed out a theoretical justification for Title VII's restrictions on expression. These important and hotly contested questions are beyond the scope of this Article. For a primer on the debate regarding whether harassment law is consistent with the First Amendment, see Volokh, Comment, supra note 223, and Fallon, supra note 64. On the scope of harassment law, see Deborah Epstein, Can A "Dumb Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 GEO. L.J. 399 (1996);
274. Eugene Volokh, What Speech Does "Hostile Environment" Harassment Law Restrict?, 85 GEO. L.J. 627 (1997).
275. R.A.V., 505 U.S. at 389.
276. The statute contains an exception for very small companies, but this exception is not grounded on content. See 42 U.S.C. § 2000e(b).
277. 126 S. Ct. 1297, 1308 (2006) (quoting R.A. V., 505 U.S. at 389).
278. In R.A.V., the Court found that the government's arguments smacked of viewpoint-based-discrimination and this perceived bias aggravated the ordinance's content-based distinction. See R.A.V., 505 U.S. at 392 (quoting Brief for Respondent at 25).
279. As appealing as the desire to foster more complex, realistic and fair images of outgroup members is, the Court would likely view this interest as viewpoint-based. As a scholar, I disagree that there is something perverse from a First Amendment perspective in wanting to create more diverse representations, but as an advocate, I would not invoke diversity because of R.A.V.
280. See, e.g., Dorf, supra note 234, at 1180 ("Although not entirely self-consciously, the Court has closely scrutinized incidental burdens that it deems substantial."); see also id. at 1182 ("The substantiality threshold is only implicit in the law and is not uniformly followed."). Although the Court would require a "substantial" burden, the Court has varied in how stringently it has interpreted that term, as it has in applying intermediate scrutiny in general. See Netanel, supra note 234, at 36 ("[A] variety of tests, including some explicitly denominated as intermediate scrutiny and some not, have been applied to content-neutral regulation. Those tests fall on a spectrum, ranging from highly exacting to what some commentators view as exceedingly deferential to speech-burdening regulations.").
281. See Pittsburgh Press, 413 U.S. at 380 ("Nor does Pittsburgh Press argue that the Ordinance threatens its financial viability or impairs in any significant way its ability to publish and distribute its newspaper. In any event, such a contention would not be supported by the record.").
282. 515 U.S. 557 (1995).
283. See id. at 562-64.
284. Id. at 569.
285. Id. at 570.
286. Id.
287. Id.
288. See Hurley, 515 U.S. at 573-74 ("[O]nce the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the [council's] speech itself to be the public accommodation," which "violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message."); see also id. at 580-81.
289. Id. at 572.
290. 530 U.S. 640 (2000).
291. See, e.g., Andrew Koppelman, Signs of the Times: Dale v. Boy Scouts of America and the Changing Meaning of Nondiscrimination, 23 CARDOZO L. REV. 1819 (2002) (characterizing Dale as a "disastrous opinion");
292. Erwin Chemerinsky & Catherine Fisk, The Expressive Interests of Associations, 9 WM. & MARY BILL RTS. 595 (2001) (arguing that Dale's extreme deference is out of step with mainline First Amendment doctrine in that it involved a generally applicable law);
293. Darren Lenard Hutchinson, "Closet Case": Boy Scouts of America v. Dale and the Reinforcement of Gay. Lesbian, Bisexual, and Transgender Invisibility, 76 TUL. L. REV. 81 (2001) (attacking Dale for insensitivity to LGBT community).
294. Dale, 530 U.S. at 659.
295. See 468 U.S. 609 (1984); see also Dale, 530 U.S. at 659 (concluding, without further explanation, that "[t]he state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association"); Hurley, 515 U.S. at 580 (distinguishing Roberts in passing).
296. See Roberts, 468 U.S. at 610 (majority opinion) ("We are persuaded that Minnesota's compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jaycees may have on the male members' associational freedoms."). Dale recognized that courts must balance speech against equality, setting "the associational interest in freedom of expression . . . on one side of the scale, and the State's interest on the other," yet it failed sufficiently to justify its finding that speech trumped equality. Dale, 530 U.S. at 658-59.
297. See BERNSTEIN, supra note 64, at 104.
298. In Roberts, Justice O'Connor refused to interpret the First Amendment in this manner. "The Constitution does not guarantee the right to choose employees, customers, suppliers, or those with whom one engages in simple commercial transactions, without restraint from the State. A shopkeeper has no constitutional right to deal only with persons of one sex." 468 U.S. at 634 (O'Connor, J., concurring in part and concurring in the judgment).
299. Cf. Nevada Dept. of Human Res. v. Hibbs, 538 U.S. 721, 723 (2003) (distinguishing age and disability classifications from sex discrimination, as only sex "triggers a heightened level of scrutiny").
300. The Court stated: "As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression," but it also noted "[t]hat is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message." Dale, 530 U.S. at 653.
301. 126 S. Ct. 1297 (U.S. 2006). The FAIR Court flatly rejected the organization's claim that the Solomon Amendment burdened its freedom of expressive association and omitted Dale's statement requiring deference to the organization's assertion of a burden. See id. at 1312.
302. See, e.g., Pittsburgh Press, 413 U.S. at 388 (finding no record evidence that an antidiscrimination ordinance created an unconstitutional burden); Meese v. Keene, 481 U.S. 465, 483-84 (1987) (finding insufficient evidence that the government's "political propaganda" designation had "interfered with the exhibition of a number of foreign-made films"). Keene is particularly relevant because it involved an asserted burden on films. A state senator who wanted to show three Canadian films argued that the federal government's requirement that films affiliated with a foreign government be distributed with a statement labeling the films political propaganda violated the First Amendment. See Keene, 481 U.S. at 471. The senator supported his argument that the "propaganda" designation would stigmatize the films with evidence from an opinion poll and affidavits submitted by a Yale psychology professor and a political strategist, which persuaded the district court. See id. at 468-69. But a divided Supreme Court brushed aside the lower court's evidence and independently determined that the asserted harm was illusory. See id. at 480-81.
303. See generally Part I.
304. Enforcing Title VII in the casting process would only require the consideration of actors of color and women; it would not impose quotas or require that they be cast in non-stereotypical roles. Some may fear nonetheless that applying Title VII would coerce studios into using quotas to ward off discrimination claims. At the same time, others might argue that merely requiring the consideration of actors of color is inadequate because it does not guarantee the studios will actually hire them. How studios would react to Title VII regulation is ultimately an empirical question not easily resolved. However, there seems to be no basis for assuming that studios would be more likely to resort to quotas than any other business constrained by Title VII. Further, because the law would be just one pressure on studios, and would have to compete with market and creative interests, it seems unlikely that studios will systematically override directors' choices and insist on casting a woman/person of color.
305. This reality would prevent extending to film casting a policy pursuant to which orchestras asked musicians to audition behind a screen in order to deter gender discrimination.
306. Planned Parenthood v. Casey, 505 U.S. 833, 876-77 (1992) (joint opinion of O'Connor, Kennedy & Souter, JJ.).
307. See id. at 877.
308. This proposal is designed to inform all applicants, especially those who would be uncomfortable associating with an organization that discriminates. See Ian Ayres & Jennifer Gerarda Brown, Warning: We Discriminate, ALTERNET, May 17, 2005, http://www.alternet. org/module/printversion/22030 (last visited July 7, 2005);
309. Jennifer Gerarda Brown, Facilitating Boycotts of Discriminatory Organizations through an Informed Association Statute, 87 MINN. L. REV. 481 (2002).
310. See HETTIE LYNNE HURTES, THE BACK STAGE GUIDE TO CASTING DIRECTORS 96 (2d ed. 1998) (recounting how a casting director ultimately cast Julia Roberts as a Portuguese waitress in Mystic Pizza - even though Roberts did not "look the part at all" - because of an impressive audition); see also Georgakas & Rabalais, supra note 11, at 29 (describing how casting director persuaded studio to cast a "wonderful actress" opposite Robert Redford in The Sting even though she was not "drop-dead gorgeous" as the studio envisioned the character). Even when such accommodation does not occur, the casting director might decide to cast the applicant in another role that would accommodate the candidate's race or gender.
311. See supra note 83.
312. Defendants might try to extend the Supreme Court's concern about judges parsing religious doctrine to the casting context. See, e.g., Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336 (1987). However, judicial scrutiny of religious doctrine implicates weighty concerns about government entanglement with religion that do not apply to judicial analysis of art.
313. Although I draw on copyright as an analogy, copyright law differs from Title VII for First Amendment purposes in that it "directly and systematically restricts the sorts of expressive activity protected by the First Amendment." Netanel, supra note 234, at 54. Because Title VII is less likely to interfere with protected speech, I argue that it should be analyzed as a law of general applicability, which might pose a First Amendment problem only when it imposes a "substantial" burden on speech.
314. See, e.g., ETW Corp v. Jireh Publishing, Inc, 332 F.3d 915 (6th Cir. 2003) (finding that painting of Tiger Woods was sufficiently creative to trump Woods' right of publicity claim).
315. See, e.g., Shirley MacLaine Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176, 182 (1970) (finding that actor did not have to mitigate her damages by accepting role in film that court deemed "different or inferior" to contracted-for role).
316. See, e.g., In re George T., 33 Cal. 4th 620 (2004) (holding that a violent poem disseminated by a juvenile was not a threat); In re Ryan D., 100 Cal. App. 4th 854 (2002) (same as to violent painting).
317. See, e.g., Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) (comparing allegedly infringing TV program City of Angels to similar screenplay); MGM v. American Honda Motor Co., 900 F. Supp. 1287 (C.D. Cal. 1995) (finding that a Honda commercial infringed MGM's copyrights in James Bond films).
318. Campbell v. Acuff-Rose, 510 U.S. 569, 579 (1994).
319. The publication Entertainment Law Reporter catalogues such decisions, reported and unreported. For examples of cases in which courts compared or assessed artistic works, see Recent Cases, ENT. L. REP. (SW. U. Sch. L., Los Angeles, CA), Apr. 2006 (listing cases involving judicial assessment of TV show Friends, novel The Da Vinci Code, movies Billy Elliot, White Chicks and Bowling for Columbine and various video games);
320. International Developments, ENT. L. REP. (Sw. U. Sch. L., Los Angeles, CA), Feb. 2006 (listing cases involving photos of Anastasia Myskina in GQ magazine, rap song by Ludacris, movie The Perfect Storm and various musical recordings released by Capitol Records).
321. See, e.g., Robert A. Gorman, Copyright Courts and Aesthetic Judgments: Abuse or Necessity?, 25 COLUM. J.L. & ARTS 1 (2001);
322. Eugene Volokh, Freedom of Speech and Intellectual Property, 40 HOUS. L. REV. 697 (2003);
323. Eugene Volokh, Freedom of Speech and the Right of Publicity, 40 HOUS. L. REV. 903 (2003).
324. See Gorman, supra note 279, at 19 ("[C]ourts should rely not on their own aesthetic intuition and preferences but rather on the opinions of art professionals; even if those cannot always agree, the court's judgment will be better informed and focused.").
325. See American Honda, 900 F. Supp. at 1294; see also United States v. Ten Erotic Paintings, 311 F. Supp. 884, 889 (D.C. Md. 1970) (looking to affidavits from professors at the Maryland Institute of Art and director of Baltimore Museum of Art, among others).
326. To the extent that one questions judicial ability to assess artistic content, even with the aid of experts, one might favor the flat ban on discriminatory breakdowns and tolerate imposing a workload burden on a subset of producers in order to avoid extending the practice of judges making artistic assessments.
327. Cf. Case, supra note 57, at 82, 86-94 (discussing how voluntary action prompted by public events, including the Los Angeles riots and the Clarence Thomas-Anita Hill hearings, helped instill certain antidiscrimination norms more effectively than did litigation).
328. Richard Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 HARV. C. R.-C.L. L. REV. 133, 149 (1982) (quoting Gordon Allport, The Nature of Prejudice 77-78 (1954)).
329. See, e.g., Patrick Goldstein, Ice Cube Crosses over to Warm and Fuzzy Side, L.A. TIMES, Jan. 25, 2005, at E1 ("When studios do international box office for African-American films, they write in a zero unless the film is an action movie.");
330. Denise D. Bielby & William T. Bielby, Hollywood Dreams, Harsh Realities: Writing for Film and Television, CONTEXTS, Fall/Winter 2002, at 25 ("Increasingly, Hollywood films are financed by foreign investors, who believe that scripts with strong minority themes (or even films featuring persons of color in lead roles) have limited appeal in overseas markets.");
331. Lorenza Munoz, Diversity in Oscars Still Elusive, L.A. TIMES, Mar. 24, 2001, at A1 (statement of former president of marketing for Polygram Films) ("[N]o one recently has tried hard to market African-American story lines or actors to the international marketplace" because of perceived past failures.).
332. See Osei Appiah, Black and White Viewers' Perception and Recall of Occupational Characters on Television, 52 J. COMM. 776, 777 (2002) [hereinafter Appiah, Perception and Recall] ("Research examining the effects of a model's race on White audiences' responses to media has not provided definitive conclusions. Although much of the research suggests race of the model makes no difference for white viewers, a body of research indicates that White respondents evaluate media with White models more favorably than they do with Black models.") (citations omitted);
333. William J. Qualls & David J. Moore, Stereotyping Effects on Consumers' Evaluation of Advertising: Impact of Racial Differences Between Actors and Viewers, 7 PSYCHOL. & MARKETING 135, 137 (1990) ("First, it was found that white respondents evaluate ads with white models more favorably than they do ads with black models . . . Conversely, several studies have found no difference in consumer ad evaluations when either black models or white models were used. In general, these research results do not lead to a definitive conclusion regarding the effect of race on consumer product evaluations.").
334. Some scholars posit that viewers are more likely to react favorably to ads featuring characters with whom they identify. But there appear to be differences between black and white viewers as to how they process race and the extent to which it plays a role in the identification process. Studies have found that racial symmetry between viewer and actor is more important to black viewers than white viewers. See, e.g., Osei Appiah, Ethnic Identification on Adolescents' Evaluations of Advertisements, 41 J. ADVERTISING RES. 7, 9 (2001) [hereinafter Appiah, Ethnic Identification] ("Black viewers have better recall of Black occupational characters than they do White occupational characters on television."); Qulls & Moore, supra, at 138;
335. see also Osei Appiah, Black White, Hispanic, and Asian American Adolescents' Responses to Culturally Embedded Ads, 12 HOW. J. COMM. 29, 31 (2001) [hereinafter Appiah, Culturally Embedded Ads] (discussing studies finding that Hispanic viewers prefer to see ads with Hispanic models). In part because they see few positive examples of people of color in the media, viewers of color may see race as more significant and react more favorably to a representation of a person of their own race than a comparable white viewer would react to a white character. Because race is less salient in the lives of white people, at least at a conscious level, white viewers may be more concerned with shared traits such as social class and profession than race. See. e.g., Appiah, Ethnic Identification, supra, at 12 ("Many researchers . . . argue that characteristics such as personal appearance, dialect style, and socioeconomic status have a greater impact on whites' evaluations of a source than does the race of a source."). The immense crossover popularity of TV's The Cosby Show demonstrates that under the right circumstances white viewers are open to embracing black characters, even an all-black cast. Cf. Appiah, Perception and Recall, supra, at 788 (finding that white viewers reacted more favorably to a black doctor than to a white doctor). White Cosby fans may have identified more with the show's upper-middle-class milieu and values than its racial character. Some studies have even found that white viewers are more strongly attracted to ads featuring black characters and/or black culture over culturally white ads. See id. (finding that white viewers recalled black characters as easily as white characters and viewed black characters more favorably than white characters); Appiah, Culturally Embedded Ads, supra, at 43 ('White adolescents identified more strongly with Black characters in ads than with White characters in ads...."); Appiah, Ethnic Identification, supra, at 17 ("[W]hite adolescents felt more targeted by black culturally embedded advertisements than they did white culturally embedded advertisements."); see also Appiah, Culturally Embedded Ads, at 43 (finding that Hispanic and Asian adolescents preferred ads with black models over those with white models). But see Qualls & Moore, supra, at 144-46 (finding that whites preferred white models and blacks preferred black models).
336. It is hard to reach firm general conclusions based on these studies because viewer response to any racial and/or gender representation would seem to be heavily dependent on the particulars of the depiction. Cf. Kate Pierce, What if the Energizer Bunny Were Female? Importance of Gender in Perceptions of Advertising Spokes-Character Effectiveness, 45 SEX ROLES 845, 855-56 (2002) (finding that the gender of a spokes-character may impact viewer perceptions, but it depends on the nature of product);
337. Jon B. Freiden, Advertising Spokesperson Effects: An Examination of Endorser Type and Gender on Two Audiences, 24 J. ADVERTISING RES. 33, 40 (1984) (noting the difficulty of predicting when gender will have an impact). The question is not "Do white viewers enjoy seeing black characters?" but rather "In what contexts and in what types of roles and movies do white viewers react favorably or negatively to black characters?" Some white viewers might react very differently to a stereotypical black character than to a Bill Cosby-type character. In addition, one cannot simply discuss the reactions of the "white viewer" or "male viewer" without acknowledging differences such as age, geography, social class, attitudes regarding race and gender, etc. For example, a hip-hop oriented black male character might simultaneously turn off older white viewers while turning on younger whites. See Appiah, Culturally Embedded Ads, supra, at 32-33, 45 (suggesting that stereotypes of blacks as "cool, hip, athletic, musical and fashionable" make them appealing to young white viewers). Thus, in order for analysis of viewer reactions to be meaningful it will have to focus on the particulars of the actors and characters involved and their relation to the storyline and remainder of the cast, as well as the specific identities of the white and/or male viewers in the study. Yet few of the existing studies provide such context-specific information about the ads or viewers studied. Cf. Appiah, Ethnic Identification, supra, at 9 (noting that most prior studies used ads featuring blacks devoid of any black cultural context but failed to recognize the potential significance of this type of representation).
338. See, e.g., Arthur De Vany & W. David Walls, Uncertainty in the Movie Industry: Does Star Power Reduce Terror of the Box Office?, 23 J. CULTURAL ECON. 285, 288 (1999).
339. See id. at 285; see also RICHARD CAVES, CREATIVE INDUSTRIES 3 (2000) (stating that industry "[r]esearch and pretesting are largely ineffective . . . because a creative product's success can seldom be explained even ex post").
340. Jon Gertner, Box Office in a Box, N.Y. TIMES MAG., Nov. 14, 2004, at 105-06.
341. De Vany & Walls, supra note 287, at 286.
342. CAVES, supra note 288, at 136.
343. BART & GUBER, supra note 17, at 58.
344. See IMDB, Business Data for Titanic, http://www.imdb.com/ title/tt0120338/business (last visited Dec. 30, 2003).
345. See Todd McCarthy, Critically Speaking: Film, VARIETY, Jan. 20, 2003, at A15.
346. See IMDB-Pro, Business Data for The Passion of the Christ, http://pro.imdb.com/title/tt0335345/boxoffice (last visited June 30, 2004).
347. See, e.g., Elaine Dutka, DVDs' Faith-based Bonanza, L.A. TIMES, Mar. 15, 2005, at E1;
348. Sharon Waxman, Nonfiction Films Turn a Corner: 'Fahrenheit' Shows Approval of Audiences and of Distributors, N.Y. TIMES, July 5, 2004, at E1.
349. See KCRW, Hollywood, the Year that Was, at http://www.kcrw.com/ cgi-bin/db/kcrw.pl?show_code=tb&tmplt_type=program (last visited Dec. 20, 2004).
350. See, e.g., John Lippman, Mining Brokeback Mountain, WALL ST. J., Jan. 27, 2006 at W6; IMDB-Pro, http://pro.imdb.com/title/tr0388795/ (last visited Aug. 30, 2006).
351. Even so, many industry decision makers will likely cling to such "wisdom," which reflects a form of institutional isomorphism, or cultural homogenization. See Paul J. DiMaggio & Walter W. Powell, The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields, 48 AM. SOC. REV. 147, 149 (1983). "[I]ndividual efforts to deal rationally with uncertainty and constraint often lead, in the aggregate, to homogeneity in structure, culture, and output," which of course stifles diversity. See id. at 147; Bielby & Bielby, supra note 285, at 21 (arguing that "distinctive features of work in Hollywood build stereotyping and an especially insidious form of discrimination into everyday business: a high level of risk and uncertainty, an emphasis on reputation, demographically-based marketing and a product that embodies cultural idioms about age, gender and race"). Even if following these rules fails to produce success, industry decision makers can at least preserve their reputations by showing that they adhered to industry norms. See DiMaggio & Powell, supra, at 156 ("[I]n fields characterized by a high degree of uncertainty, new entrants, which could serve as sources of innovation and variation, will seek to overcome the liability of newness by imitating established practices within the field."). Conformity is especially important in an environment in which studios are mere subsidiaries of corporate conglomerates and studio chiefs are closely monitored by corporate bosses.
352. See, e.g., Sharon Waxman, Universal Cancels Film with Oscar Stars, N.Y. TIMES, Oct. 9, 2004, at B7; Bielby & Bielby, supra note 285, at 21.
353. See, e.g., Gary Blasi, Advocacy Against the Stereotype, 49 UCLA L. REV. 1241, 1248-49 (2002); Kang, supra note 63;
354. Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations after Affirmative Action, 88 CALIF. L. REV. 1251, 1265 (1998) [hereinafter Krieger, Perestroika];
355. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995) [hereinafter Krieger, Categories];
356. see also Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987) (drawing on a different body of psychological scholarship).
357. Krieger, Perestroika, supra note 300, at 1267.
358. Id. at 1330.
359. See A.O. Scott, Heroes v. Stars: Revenge of the Nerds, N.Y. TIMES, May 8, 2005, at 2A-1.
360. Catwoman cost $85 million and grossed $40 million. See IMDB-Pro, http://pro.imdb.com/title/tt0327554/ (last visited May 10, 2005). Elektra cost $43 million and grossed $25 million. See IMDB-Pro, http://pro.imdb.com/title/tt0357277/ (last visited May 10, 2005).
361. Bruce Snyder, Fox's domestic distribution executive, "speculated that superwomen just don't seem to draw as well as supermen." Bridget Bayne, "Coach Carter" Dunks Box Office, E ONLINE, http://www.eonline.com/News/Items/0,1,15719,00.html (last visited Jan. 18, 2005).
362. Cf. LARSON, supra note 2, § 43.03, at 43-51 (noting "evidentiary problem" of vague assertions of customer preference).
363. Metacritic.com, which compiles movie reviews, says critics gave Catwoman twenty-seven out of 100 possible points and Elektra thirty-four. See Metacritic.com, Catwoman, http://www.metacritic.com/ film/titles/catwoman (last visited May 9, 2005);
364. Metacritic.com, Elektra, http://www.metacritic.com/film/titles/elektra (last visited May 9, 2005).
365. See Krieger, Perestroika, supra note 300, at 1268-69 (discussing "selective memory" mechanism whereby stereotype-consistent information is easily recalled but stereotype-disconfirming information is more difficult to retrieve); id. at 1288 ("It is well-established that people pay particularly close attention to distinctive stimulus objects, such as a 'token' woman or minority group member. . . . Accordingly, the poor performance of a distinctive minority student is more likely to be remembered, and will tend to be charged with a more powerful negative valence, than the poor performance of a majority white student."). The Punisher grossed $34 million and cost $33 million; The Hulk grossed roughly $132 million, less than its $137 budget. See http://pro.imdb.com/title/tt0330793/ (last visited Oct. 5, 2006); http://pro.imdb.com/title/tt0286716/boxoffice (last visited Oct. 5, 2006).
366. See Blasi, supra note 295, at 1251-52. Cf. Krieger, Perestroika, supra note 300, at 1275 ("[A]n episode of personal failure, experienced under conditions in which group membership has been made salient, exacerbates negative reactions to members of the contextually relevant outgroup.").
367. John Lippman, The Superhero Glass Ceiling, WALL ST. J., Jan. 7, 2005, at W6.
368. Manohla Dargis, Moral Conflict Plus a Hot Bod: What More Does a Girl Need?, N.Y. TIMES, Jan. 14, 2005, at E6.
369. See Lippman, supra note 310, at W6 (reporting that Elektra's budget was $43 million, while Daredevil's was $78 million).
370. See Dargis, supra note 311, at E6.
371. See De Vany & Walls, supra note 287, at 309 (citing Jodie Foster, Sandra Bullock and Michelle Pfeiffer).
372. See, e.g., Krieger, Perestroika, supra note 300, at 1267.
373. See id. at 1268 (discussing "body of research [that] convincingly demonstrated that stereotypes and other forms of initial expectancies are highly resistant to subsequent expectancy-inconsistent information"); Blasi, supra note 300, at 1253 ("One of the reasons stereotypes persist is that they are easy to maintain; overcoming them requires significant effort."). Will Smith decided to concentrate on cultivating a foreign audience for his films, despite suggestions by white producers that the returns would be minimal. See Laura M. Holson, The Fresh Princes of Mumbai, N. Y. TIMES, Aug. 21, 2006, at C1 (stating that the "turning point in Mr. Smith's foreign appeal" was his aggressive overseas promotion of 1995's Bad Boys, which went on to gross "15 times as much at the international box office as was predicted").
374. Bielby & Bielby, supra note 285, at 25. Thus, the unprecedented success of Crouching Tiger, Hidden Dragon, a foreign language film cast with Chinese actors, which grossed over $85 million and won four Academy Awards, did not lead to the expected glut of Chinese martial arts films. Cf. Craig S. Smith, Hero Soars, and its Director Thanks Crouching Tiger, N.Y. TIMES, Sep. 2, 2004, at E4 (noting long delay between Crouching Tiger and subsequent hit Hero).
375. See Krieger, Perestroika, supra note 300, at 1269. An experienced creative executive at a major studio, who spoke off the record, explained that small character-based films that explore cultural themes specific to America do not translate overseas as well as action extravaganzas in which culture and language are almost superfluous. The problem with many of the unsuccessful films starring African Americans is not the actor's race per se, but that the actors were othered. The films framed the actors as black people living urban experiences specific to America. The recent films that succeeded overseas did not frame their leads as black, but as people that happened to be black, and the storylines had little if anything to do with race or "urban" culture.
376. Gerdom v. Cont'l Airlines, 692 F.2d 602, 609 (9th Cir. 1982).
377. Id.
378. Cf. Zacharek, supra note 90.
379. Cass R. Sunstein, Social Norms and Social Roles, in CHICAGO LECTURES IN LAW AND ECONOMICS 135, 156-57 (Eric Posner, ed., 2000).
380. As Jerry Kang has written, "even when we have explicitly decided in favor of racial equality, something implicit within us does not follow. It is as if the racial meanings ubiquitous in our culture, embedded in our histories, exert a deterministic drag that prevents us from fully adopting self-defining choices about fairness and human decency." Kang, supra note 63, at 1587; see also Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2420 (1994).
381. Sunstein, supra note 322, at 156-57.
382. See Russell K. Robinson, Uncovering Covering, 101 NW. U. L. REV. (forthcoming Summer 2007).
383. A filmgoer might be disturbed to learn that nine of the ten movies she "chose" to see in a given year starred white male protagonists. The import of this choice would change if the studios released only twenty movies in that year and sixteen of them starred white men.
384. See, e.g., Lisa Jardine, Boy Actors, Female Roles, and Elizabethan Eroticism, in STAGING THE RENAISSANCE: REINTERPRETATIONS OF ELIZABETHAN AND JACOBEAN DRAMA 57-67 (P. Stallybrass and D. Scott Kastan, eds., 1991).
385. Krieger, supra note 10, at 846.
386. Other actors who played characters of a race other than their own included Marlon Brando, Charlton Heston, Fred Astaire, Judy Garland, Rudolph Valentino, Mickey Rooney, Bing Crosby, Laurel and Hardy, Shirley Temple, Jerry Lewis and Danny Thomas. See GUBAR, supra note 96, at 86-91; see also Jesse Katz, The Curse of Zapata, LOS ANGELES MAGAZINE, Dec. 2002 (discussing how in order to play a Mexican in Viva Zapata! Brando "hired his own makeup man, undergoing contortions that now seem laughable. He flared his nostrils with plastic tubing. He slanted his eyes with latex glue. He painted his face brown.").
387. In making this statement, I assume the films do not include a thematic element of passing or drag, such as White Chicks or The Crying Game. High-profile examples of audience backlash to cross-racial casting include the brouhaha surrounding the casting of a white actor as an Asian character in Miss Saigon. See generally Krieger, supra note 10; see also Neil Gotanda, Asian American Rights and the "Miss Saigon Syndrome," in ASIAN AMERICANS AND THE SUPREME COURT: A DOCUMENTARY HISTORY 1087, 1098 (Hyung Chan Kim ed., 1982);
388. Richard Hornby, Interracial Casting, 42 THE HUDSON REVIEW 459 (1989).
389. Interestingly, norms have not changed as much with respect to non-black people of color, especially Latinos. For instance, studio decision makers saw no problem in casting the leads of the Cuban crime saga Scarface with white actors. Director Gregory Nava has consistently faced pressure from studios to cast white actors like Brooke Shields and Marisa Tomei as Latinas. See Katz, supra note 329; Navarro, supra note 104, at E1; see also A. O. Scott, A Love That's Forever, If Only for a Day, N.Y. TIMES, February 13, 2004, at E1 (noting that in the comedy 50 First Dates, Rob Schneider, wearing brown makeup and a wig, played Adam Sandler's buffoonish best friend, "a goofy Hawaiian stoner."). At the same time, some lighter-skinned Latinos, from Martin Sheen to Jennifer Lopez, enjoy the opportunity to play white characters.
390. Gerdom v. Continental Airlines, 692 F.2d 602, 609 (9th Cir. 1982).
391. See, e.g., Krieger, Perestroika, supra note 300, at 1283 ("Whether we like it or not, it is highly implausible to assume that an American of one race encountering an American of another race would not notice racial attributes or use those attributes in initially categorizing the person perceived. It is one thing to maintain as a normative matter that people should not categorize by race. But it is counterfactual to maintain that they will not do so."); Yuracko, supra note 2, at 196 ("In a sexist society, nothing done by men and women has precisely the same meaning. Traits are not understood or viewed as isolated technical attributes. They are necessarily viewed in relation to all of the other traits an individual possesses and through a systematically gendered lens.").
392. See supra note 242.
393. The Hurley Court asserted that speakers generally have the autonomy to decide not merely what to say but also what not to say. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573-74 (1995) (emphasis added). As an example of an arguable "compelled speech" burden, consider critic Janet Maslin, who opined that the casting of Whoopi Goldberg in Sister Act, in a role intended for Bette Midler, created uncomfortable racial undercurrents. See BOGLE, supra note 101, at 333-34. In Maslin's view, "[scenes between Goldberg and her boss Maggie Smith] that might have played as mere snobbery with Ms. Midler now have a hint of racism." Id. at 333 (internal quotation marks omitted); see also Hornby, supra note 330, at 461 (approving of the casting of African Americans in certain roles in Shakespeare's As You Like It, but suggesting that the director should have omitted a line in which Oliver describes Celia as "browner than her brother" as "the line is minor enough to be cut.").
394. Cf. 42 U.S.C. § 12112 (2006). Although scholars sometimes assume that the antidiscrimination rules of Title VII and accommodation mandates are fundamentally different, Christine Jolls has shown that the two overlap in important respects and that certain aspects of Title VII, including its disparate impact prong, sometimes require accommodation. See generally Christine Jolls, Antidiscrimination and Accommodation, 115 HARV. L. REV. 642 (2001). To be clear, my argument is not that Title VII technically contains a reasonable accommodation requirement for race and sex but that one could be fashioned in the casting context to account for First Amendment concerns. Jolls' work shows that this test would not be anomalous.
395. The director of Sideways chose not to explain why Sandra Oh, who is Asian American, had a black child and white mother.
396. See, e.g., Wilson, 517 F. Supp. at 299; Diaz v. Pan Am World Airways, Inc., 442 F.2d 385, 388 (5th. Cir. 1971)
397. I provide the following analysis simply as a rough sketch of how a court, guided by the testimony of artistic experts, might resolve such issues. Although my analysis is based on reading several critical reviews of each film, I am not a film expert.
398. See Hornby, supra note 330, at 461 ("[I]f race is at issue in the play, then it should not be ignored.").
399. As explained more fully in the methodology section, these numbers are based on viewing trailers, and in some cases entire films, for the 2004 and 2005 films, conducted with my research assistants. See supra text accompanying notes 42-48.
400. Cf. Wertheimer, supra note 147, at 101 ("Some reaction tendencies may be deeply rooted in general developmental patterns or changeable only at great social or individual costs.").
401. Even here, it might be a mistake to assume that audiences would reject anyone other than a white male as President. The TV shows 24, Commander in Chief and The West Wing successfully cast a black man, a woman and a Latino, respectively, as the President.
402. Moreover, we should keep in mind that audience members are unlikely to make the sort of cross-film comparisons that might undermine verisimilitude. Each film is presented as a separate entity with little connection to others, and films are produced by many different filmmakers and studios. Most viewers also see only a subset of films released each year. Under these circumstances, it would be difficult to conclude that the average audience member would reasonably determine that Latino lawyers are overrepresented in films in general or in the films released by a particular studio.
403. See, e.g., Carson, supra note 91, at 119 (describing depictions of interracial sexuality as "Hollywood's last taboo."). Director Jonathan Kaplan (The Accused, Love Field) explains: "Movies are too expensive now. Nobody wants to take a chance on anything the least bit controversial. It's not the public, which is very savvy in this area; it's the Hollywood establishment. They're overly sensitive toward anything to do with interracial romance." Glenn Lovell, The Color of Love: Interracial Romance Still Makes Hollywood a Little Nervous, CHI. TRIB., Sept. 18, 1994, at C34.
404. See Wertheimer, supra note 147, at 110 ("If counting reaction qualifications seriously compromises one's range of employment opportunities, it seems at least somewhat unjust to count them.").
405. The impact of catering to audience preferences for monoracial relationships would fall heavily on a discrete group of employees, actors of color. Cf. id. at 109 (warning against honoring preferences that would "work a serious hardship on a class of job seekers").
406. 388 U.S. 1 (1967) (holding that a Virginia statute barring interracial marriage violated equal protection).
407. 466 U.S. 429 (1984) (holding that a judge determining custody could not consider racial prejudice that child might suffer as a result of mother's interracial relationship).
408. The Bodyguard grossed $410 million worldwide See IMDB-Pro, http://pro.imdb.com/title/tt0103855/ (last visited Nov. 10, 2004). Despite that success, "the pairing of white male superstars with black love interests is extremely rare." Lovell, supra note 345, at C34; see also id. (Corrina, Corrina director Jessie Nelson recounting demands to "cut out the relationship between Whoopi [Goldberg] and Ray [Liotta] completely"). More recently, the hip-hop interracial romance Save the Last Dance (budgeted at $13 million) came out of nowhere to gross $91 million domestically. See IMDB-Pro, http://pro.imdb.com/title/tt0206275/ (last visited Nov. 10, 2004). It appears that younger audiences are relatively unfazed by depictions of interracial romance. Cf. Appiah, Culturally Embedded Ads, supra note 286, at 43 ("White adolescents identified more strongly with Black characters in ads than with White characters in ads . . . ."); Appiah, Ethnic Identification, supra note 286, at 17; Zina Magubane, Black Skins, Black Masks or 'The Return of the White Negro,' MEN AND MASCULINITIES, Jan. 2002, at 240 (discussing Cornel West's argument regarding the "AfroAmericanization of white youth"). Some of the opposition to interracial romance can come from audiences of color who do not want to see "their" stars paired with a white person. Denzel Washington has reportedly shied away from depicting interracial romances after receiving flack from some of his black female fans. See Lovell, supra note 345, at C34. The Oscar-winning film Monsters Ball, which improbably paired Halle Berry with Billy Bob Thornton, is singularly loathed by many within the black community in part because of its explicit interracial sexuality.
409. Studios have employed various techniques to mute the racial or interracial dimensions of films, including tinting the colors of posters to obscure racial identity and omitting black characters altogether. See, e.g., Goldstein, supra note 285, at E1 ("In his film [Are We There Yet?], [Ice] Cube is seen wearing a jumble of silver-chained jewelry. In the film's poster, the chain's have been airbrushed out. Moreover, Cube is pictured not just with the two African-American kids who serve as his comic foils in the film but a host of other kids, mostly white."); Lovell, supra note 345, at C34 (describing "the monochromatic, 'race-neutral' posters and cassette sleeves for "The Bodyguard'" in which "neither star's race is identifiable"); Goldstein, supra note 74, at 6-1 (noting that ads for Lean on Me and The Color Purple showed black characters in silhouette and The Mighty Quinn displayed no characters).
410. See Carbado & Gulati, supra note 67, at 1796.
411. Hence, some viewers may not have realized that Thandie Newton was African American when she starred opposite Tom Cruise in Mission Impossible II because the film did not present her as such. Conversely, some viewers likely mistakenly assumed that the raven-haired, olive-hued Catherine Zeta-Jones was a Latina when she debuted in the movie Zorro with Antonio Banderas.
412. See BERG, supra note 71, at 10.
413. Gender also is largely constructed. Despite our tendencies to see physical differences as important, "bodies end up meaning less in the fight for equality than the roles, myths, and stereotypes that transform a vagina into a she." Franke, supra note 195, at 39-40.
414. See IMDB-Pro, http://pro.imdb.com/title/tt0102945/storyline (last visited Oct. 19, 2004).
415. However, as noted above, they may not have a strong basis for using a racially discriminatory breakdown. Since roughly 80% of Screen Actors Guild members are white, failing to specify "white" in the breakdown would simply require the consideration of a relatively small number of men of color. With respect to sex, however, the studio would have a strong claim for specifying male in the breakdowns because considering an equal number of female candidates would be considerably more burdensome.
416. Washington has starred in a number of films in which race was not a significant story element, and in some cases he was cast despite an initial contrary racial designation (e.g., Out of Time, Manchurian Candidate). I have not been able to determine the percentage of 2004 and 2005 films that involved an interracial romance because such romances may not be disclosed in trailers and advertisements.
417. Kenneth Turan, The Roundhouse Miss: Fight Club, L.A. TIMES, Oct. 15, 1999, at F1.
418. Stephen Hunter, 'Fight Club': No Holds Barred, WASH. POST, Oct. 15, 1999, at Cl.
419. See Roger Ebert, "Fight" Stresses Frightful Ideas, CHI. SUN-TIMES, Oct. 15, 1999, at 31.
420. Id.
421. See Maslin, supra note 360, at E14 ("This is a classic pattern . . . where the flashy boy liberates the dull boy. It's been done a thousand times in a variety of genres, but here it's almost mythpure.").
422. See, e.g., id. (describing the film as a "true-blue, angry-young man rant.").
423. Kenneth Turen, Keeping Up With Ms. Jones, L.A. TIMES, Apr. 13, 2001, at F1.
424. Desson Howe, Bridget Is Almost V. Good, WASH. POST, Apr. 13, 2001, at T34.
425. Indeed, this essentially describes the Hugh Grant character, a promiscuous cad who, because of his gender, is viewed as a "sex god."
426. Stephen Hunter, 'The Sixth Sense': Shocker Therapy, WASH. POST, Aug. 6, 1999, at C1.
427. Id.
428. In 2004, Moore starred in The Forgotten, a psychological thriller about a lost boy that aspired to follow in the footsteps of The Sixth Sense.