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Belmont Law Review

Abstract

This Note discusses the theatrical casting process from publishing a breakdown through audition day type outs and how this process exposes productions, theater companies, and Actor’s Equity Association (“AEA”) to potential liability. Part I provides a background on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981, as these are the federal antidiscrimination laws under which a lawsuit is most likely to arise. Part II explores the language of breakdowns, defines the concept of theatrical typing, and discusses the two predominant methods the theater industry frequently utilizes in casting shows. Likewise, Part II examines two frequent, often overlooked, issues facing the theater industry right now: publishing racially preferential casting breakdowns and typing as a form of segregation. Part III discusses potential ways in which producers may try to shield productions from liability. Part III first analyzes the inefficacy of affirmative action policies and whether current casting methods fit squarely within the contours of affirmative action. This section then considers breakdowns and typing in the context of the First Amendment as commercial speech and artistic expressive conduct. Finally, Part III addresses Bona Fide Occupational Qualification arguments and the merits of statutory amendments that would codify current practices. As possible solutions, Part IV explores two potential statutory modifications that would allow the theater industry to engage in race conscious hiring. This proposed qualified exemption would create a burden shifting test that would enable a challenger to recover against a production or theater company in instances of legitimately invidious racial discrimination in casting. Part V briefly concludes.

Ultimately, while color-conscious casting is the theater industry’s preferred casting method, a comprehensive color-conscious casting program that encompasses casting from the moment a casting breakdown is published is not feasible under the law. The current form of breakdowns precludes color-conscious casting from being an affirmative action plan because it necessarily excludes people of other races, and the First Amendment does not protect breakdowns because they are an illegal form of commercial speech. However, the part of color-conscious casting focusing on typing has been accepted as a form of protected expressive conduct. The theater industry’s best way forward is through a statutory exemption that codifies existing casting practices and allows the industry to advertise racially preferential breakdowns

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