ABC Wins Major Discrimination Challenge Over Casting Of “The Bachelor”

There is an interesting ruling in Nashville this week where U.S. District Judge Aleta Trauger ruled that ABC and the producers of “The Bachelor” and “The Bachelorette” are protected by the First Amendment right in making casting decisions — even in the face of discrimination claims over the failure to cast minorities on the television series “The Bachelor.”

Two black men, Nathaniel Claybrooks and Christopher Johnson, sued on the basis of alleged discrimination in casting. However, ABC argued that such decisions fall squarely within the first amendment and free speech — a position that I happen to agree with. More importantly, it is a position that Judge Trauger agrees with. Trauger described the controversy succinctly:

ABC’s website states that “there has been an eclectic mix of bachelors over the years. We’ve seen a doctor, football star, prince, millionaire, [and a] single dad.” (Am. Compl. ¶ 37 (brackets in original).) Despite this “eclectic mix,” none of the Bachelors or Bachelorettes has been a person of color — that is, across 24 combined seasons, all of the Bachelors and Bachelorettes have been white. Furthermore, the vast majority of “suitors” for the Bachelor and Bachelorette have been white, and the few non-white contestants tend to be eliminated early on in each show. Thus, the weekly Shows typically feature a white Bachelor/Bachelorette and all (or nearly all) white suitors.

However, that does not alter the right of writers to structure their cast and artistic work as they wish. The court applies strict scrutiny to the case as a content-based challenge. The court relied on Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 568, where an Irish American Gay, Lesbian, and Bisexual Group of Boston sought to march in the annual Saint Patrick’s day parade in Boston against the wishes of the organizers. The United States Supreme Court reversed the lower court and found that “parades are a form of expression” entitled to First Amendment protection and held that the organizing Council was not required to show that the parade had a particular expressive purpose to justify First Amendment protection. In a holding that foreshadowed the claim against writers, the Court noted that “a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a “particularized message,” would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.” Id. at 569-70.

Accordingly, Trauger held:

“The plaintiffs’ goals here are laudable. They seek to support the social acceptance of interracial relationships, to eradicate outdated racial taboos, and to encourage television networks not to perpetuate outdated racial stereotypes. Nevertheless, the First Amendment prevents the plaintiffs from effectuating these goals by forcing the defendants to employ race-neutral criteria in their casting decisions in order to ‘showcase’ a more progressive message.”

The ruling raises a general issue that we have previously discussed in terms of television stations preferring younger anchors or restaurants preferring attractive waitstaff.

As will come as no surprise to many on this blog, I tend to view this matter through the lens of free speech and the need to protect such expression. As previously discussed in a recent column, free speech is under attack in the West — dying not from one blow but a thousand papercuts including well-intentioned discrimination laws.

What do you think about this ruling?

The case is Claybrooks v. ABC, 2012 U.S. Dist. LEXIS 147884 (MD Tenn. 2012).

Source: Hollywood Reporter

33 thoughts on “ABC Wins Major Discrimination Challenge Over Casting Of “The Bachelor”

  1. I think entertainment is a fundamentally different employment picture than other skilled labor; in which one’s physical appearance is actually what is being sold. If the producers believe that a non-white will not get the ratings of a white person, that is their decision. The same goes for obese, or homosexual, or disabled, or disfigured, too short or too tall; in this case (I presume, I do not watch the show) they are selling a storybook romance fantasy, and they want their fantasizing audience to identify closely with the “hero,” and since their demographic is predominately white perhaps they think that is easier and their ratings will be higher with white actors. Maybe they are right.

    When one is being hired for one’s physical attributes (or unquantifiable ‘talents’, like the ability to express emotion on camera), discrimination based on those very attributes is inevitable, one assumes that risk when one applies or auditions.

  2. If there is any reality in the show (and one tends to doubt almost any ‘reality” show is unscripted) then even if they hire non white, the bachelor or ette is the one making the pick. It is up to her, not ethnicity, as to whom she picks or tosses. To me the show, shows, like this are abhorrent and show people in a bad light. The people not picked may well be the ones who benefit by not being hired.

  3. Some states lave laws that exempt from affirmative action the casting of movies, plays, and television shows. It would be rather ridiculous to force a studio to put a requirement that a movie depicting the lives of the courts of English Kings in the 11th century to include 20% Hispanics, 18% Asians and 7% Native Americans.

    I agree with the court and Our Professor on this one, the converse if the court ruled for the plaintiff would be a bit disturbing in that quotas would be forced on the entertainment industry and there might be censorship committees formed to ensure the compliance with casting quotas.

  4. Good call….. I’m not surprised that the folks that are all up in arms about politically correctness have not posted here already…. But then again….it’s a no brainer…

  5. I take exception to this decision. ABC has a first amendment right, but is it just a coincidence that none of the bachelors or bachelorettes have been white? If I understand it correctly, if the “writers” are exercising their free speech, has ABC refused or turned down any scripts requiring casts of color? To compare a show where people are paid or gain potential monetary benefit from participating, to a parade where no potential financial gain is derived is incorrect, imho. Is Rush Limbaugh president of ABC?

  6. ABC is being myopic. There is the potential of a huge non-white audience that they are dissing by refusing to allow non-white participants.

    Attractive intelligent men of character come in all shades. Aha, maybe that’s the problem….. only white men are superficial enough to qualify as dates/mates/whatever for the equally superficial white women.

  7. @rafflaw: I think you meant “all” of them have been white, and it is probably not a coincidence at all, it is probably a decision to appeal to a specific demographic of white women. It probably isn’t the writers exercising their free speech, but the producers choosing the contestants, and they probably choose those contestants based upon all sorts of physical attributes. Including attractiveness, fitness, the absence of scarring or physical disability, and whether or not their audience will identify with them.

    On TV (or the stage, or in role-playing jobs), physical appearance (and physical ability) is often critical to selling a story. Not every actor makes a good cop, or good beauty contestant, or good evil genius. The producers cast whomever they believe will be the most appealing “prize” to the largest portion of their viewing audience.

    Inter-racial marriages are less than 3% of all marriages, and only 0.3% of married whites are married to a black partner. A TV show is a product, and like most products they are made with a specific “proto consumer” in mind.

    In this case, simple statistics suggest that most of their typical viewers are not dreaming of landing a black prince. If that leaves out Asian, Hispanic, or Black viewers, it is a choice to be made: Either appeal to the largest group of viewers or appeal to a minority group; and there is no guarantee you can appeal to both. And since a series can usually be canceled any time ratings fall, it probably is not an experiment they are willing to risk.

    It is not racist on the part of the producers, it is looking at the stats. The racism, if there is any, is in the 97% tendency within this country for marriages to be intra-racial. The producers cater to the largest audience they can attract.

  8. @Bettykath: You are assuming that white viewers would remain interested if there were non-white contestants; and I do not think that is a valid assumption.

    My evidence is the demographics of BET (Black Entertainment Television), their non-black audience is only 18%. If the producers decided to go with a black or mixed version of the show, they might well lose 80% of their audience; and any loss greater than about 25% would probably mean cancellation. Any loss at all would probably mean less advertising revenue; advertisers pay for “impressions,” the number of TVs upon which their commercial is seen (or radios upon which it is heard, or cars that drive by the billboard, etc). Drop 10% in your ratings and drop 10% of your revenue along with it.

  9. @Swarthmore: Fair enough, I stand corrected on the stats. Still, 90% intra-racial is too much to ignore when crafting a fantasy or wish-fulfillment show.

  10. Tony, I’m not suggesting anything about the white audience. I’m suggesting that it might increase the non-white audience. If there were a mix of color on both sides there could be a wider choice.

    Unless you’re suggesting that the white that watch would be so turned off by having a black or brown face as an option they would quit watching and that there would be more of them than the non-white who would start watching.

    Frankly, I don’t think they could do anything to the show that would entice me to watch it. This leads me to admit that I’m really a bit out of my depth here b/c I don’t watch such shows and don’t know anyone who does. No TV in my house except for netflix movies and tv shows that I pick via internet. Thanks to Woosty’s posts (I think it was Woosty) I have a great time with The Big Bang Theory.

  11. bettykath 1, October 17, 2012 at 3:50 pm

    … I have a great time with The Big Bang Theory.
    I am preparing an exposé of The Big Bang Theory, by comparing it with The Goldilocks Bang Theory

    you know … too _____ Bang, too ______ Bang, and just right Bang … Theory.

    “It could happen.”

  12. Even with “reality” shows that rely on panels of judges and some feat of skill among the contestants there is a small type, quickly flashed on screen during the closing credits that state that the decisions regarding continuing eligibility of contestants are made among judges, producers and others as needed. I haven’t paused a dvr to read it exactly, it is longer than I encapsulated it to be and I can’t read it all in the short time it is on screen. That’s TV world talk that means skill of the contestants is not as important as ratings and popularity and we’ll structure the arc of the series to maximize audience loyalty and our profit.

    They will keep a lower skilled contestant beyond their skill level if they are popular or such a conflict/drama inducing quantity that people will tune in to see the fireworks. Some of the contestants are vying for VERY big stakes.

    It’s all business.

    The ruling discussed is problematic in movies IMO, there wasn’t a African American actor in the role of Othello on the big screen until the mid/late 90’s, gay leading men wooed women on screen forever and you can flip that coin with no problem. As long as the attitude is right and the acting ability is there there shouldn’t be a problem with a Hispanic actor being an English lord in a costume drama. That’s why they call it acting. Also, anything that gets Jimmy Smits more screen time is fine with me. :-)

  13. “there wasn’t a African American actor in the role of Othello on the big screen until the mid/late 90′s,”

    If you haven’t seen the Branagh/Fishburne version of “Othello” I cannot suggest it strongly enough, LK. Not only is Fishburne wonderful as the troubled Moor, but Branagh plays the absolutely most vile Iago I’ve ever seen. You just want to reach through the screen and slap the crap out of him. :D

  14. Tony C.
    You are correct that I meant “all”. With the much larger numbers that Swarthmore provided us, it is strange that the producers have not included bachelors/estates of color. Not even one time.

  15. Gene and Rafflaw, I enjoy both Fishburn and Branagh. I recall the ‘oddity’ of casting Fishburn and all the media it generated. I recall seeing the movie too but it’s just a blur, I wasn’t engaged and that was me, not the movie I’m sure. I do recall some of the scenes between Othello and Ophelia and being moved by them but the movie just didn’t stick. Same with the Glenn Close/Mel Gibson Hamlet. I recall her being unlikable and doing it well and him being youthful and beautiful but nothing else.

    I read most of the plays and picked up a lot of spoken word album sets of the plays. I fell in love with Richard Burton’s voice by way of his Hamlet and would go see his movies just to hear him speak. (I know, I’m totally superficial that way.) My favorite Shakespeare plays on the screen were Taming of the Shrew (forever ago) with Burton and Taylor, it was a great romp! Also Richard III with Ian McKellen, a masterful re-working of the play. McKellen does ‘monstrous’ really well, that was a gem of a movie.

    I will take your advice and pick up Othello at the library and watch it again. Thanks.

  16. LK,

    I thought Gibson’s Hamlet was surprisingly passable, but without the strong supporting cast (Close and Ian Holm both stood out), it wouldn’t have been anything but average. Good production values though.

    I also loved McKellen’s Richard III. People who think of him solely as Gandalf (although he owns that role) or Magneto (a role Michael Fassbender now owns in my mind, no slam to Sir Ian) simply don’t know what they are missing. I’ve seen him in several Shakespeare productions and he’s always strong.

  17. When I was in college, our opera workshop decided to do a production of ‘Porgy and Bess’ with a mixed race cast. Guess what? The local NAACP made such a fuss that we ended up doing ‘La Nozze’ instead. Just sayin’…

  18. @Betttykath: I am suggesting exactly that, or suggesting that is what the producers fear: That putting a black bachelor or bachelorette in the leading role (not as a suitor) would ruin the fantasy for enough whites that they would change the channel. The main role is the “pyschological identification” role, it isn’t a supporting role.

    Using the examples of stations or shows geared to Black viewers, or LGBT viewers, or older viewers, or religious viewers, or family viewers, catering to one demographic tends to exclude those far from that demographic.

    That is not ME being racist, that is me looking at statistics and stating a sociological fact; some whites clearly have difficulty identifying with blacks in leading roles. Pointing out that racism exists is not racist.

    But I would say this isn’t racism on the part of those viewers, it is more like the 90% racial preference that exists in marriage itself.

    Here is a link to 2010 Census Table that describes the breakdown of the interracial marriages (and non-married couples).

    While Swarthmore was correct that “interracial” amounts to about 9.5% of married households; the White+Black marriages amount to only 0.75% of all marriages. Most interracial marriages are White+Hispanic, White+Asian, or two non-whites.

    If I am a producer of a romantic marriage show, I want the marriage to resonate with the population, and 0.75% of White+Black marriages in the general population would not bode well for that resonance. Is it racist for whites and blacks to marry at 1/24 of the expected rate compared to just hooking up couples at random?

    An all business producer doesn’t care, it isn’t his racism, he just wants people to watch the show, and he gets the most viewers if he avoids a black leading man/lady. If the suitors were white, the show becomes interracial black+white and 99% of the audience wouldn’t choose that marriage for themselves; if the suitors are black it becomes (like BET) a show for blacks, and (like BET) a large percentage of the white viewers change the channel, because it no longer feeds their own fantasy.

    At least, I think that is the surface of their demographic analysis.

    For myself, 72.4% of the population report their race as “white alone”, 12.6% report as “black alone.” If any two people are chosen at random, the chance of picking one black and one white is 18.25%. The current census reports Black+White marriages at 0.75%, 24 times smaller. That means it is virtually certain that in today’s culture, in marriage, blacks and whites are self-selecting to NOT marry each other. Choice is clearly the dominating factor.

    That is what I mean by a “sociological fact” the producers are heeding.

  19. From The Bachelor to The Bard, what an evolution. Every year we would study and then view a Shakespeare play @ the Shakespeare Theatre in Stratford, Ct. It was a very cozy venue. We saw Macbeth, Othello, As You Like It[underappreciated], and Taming of The Shrew. I’ve watched the aforementioned films and agree w/ the analysis. However, these masterpieces, created by the greatest writer to ever live, are much better on the stage. I read in the NYT this theatre is abandoned and falling down. A metaphor for our culture. Do you all realize many so-called feminist English teachers don’t teach Shakespeare because he is sexist?

  20. Lottakatz I used to watch runway until they picked someone to me was absolutely not the bst but each week when he stayed I said well the prodecer sure wants to keep the problems he causes alive so there is something else besides sewinig going on. It is what has kept me from intentionally choosing to watch it. (and yep Smits ((*_*)) )

  21. AY, yes, Fishburn is on CSI and I watched a couple of them just to see him tho I don’t don’t watch the series. He has ‘presence’, his size and build helps with that but it can’t explain completely his dominance of the screen. He’s good.

  22. leejcaroll, Ah yes, project Runway, one of my guilty pleasures. I like to watch shows wherein people are actually creating something and some of the designers on that show have been amazing, and I’m not at all into fashion- don’t care a bit about it. I did run across a website in the middle of the night during one of my 30 hours without sleep incidents that had a famous designer using a couple of my favorite actors, DaFoe, Oldman, Brody as runway models, Willem Dafoe walks like a boss but can’t resist smiling and giving a little wave at the final, full circuit. Such bad form :-) It was Prada’s nod to steampunk fashion. The link’s below if you are interested in steampunk fashion or cough*Dafoe*cough. Just remove the asterisks and close up to one word.

    I’ve been checking in on huge Great Dane named Chaos (linked from BoingBoing) that has a live stream; she’s gigantically pregnant and going to have her pups any time now. I want to see baby puppies! My taste in watching media is kind of eclectic :-)

    Yep, Smits :-) *****

  23. wouldnt open the part click ):
    Im with you I like the ones where they actually have to work, for me lots of cooking top chef, chopped, etc. Its hard to make your face say Yum when your tastebuds are saying yucky (:
    I missed your instructions Have to try and open that.
    So pleased tonight sweet genius is back, get to watch the makings of decadence without ingesting the calories.

  24. Oh I dont know what boing boing is (out of the loop a lot when it comes to sites) but puppies best reality show there is (*_))

  25. I don’t know how old you were when you were being given the opportunity to see the actual plays live but I bet it was a great experience at any age. We, as high-schoolers would be taken on one or two field trips a year to be exposed to culture and the arts. I cam from a pretty tough HS and I was amazed at how receptive and receptive my mean-girl, bad-boy classmates were. I still recall an assortment of musicians and stage actors all in town for various performances that appeared with the St. Louis Symphony. The lead actors from Porgy and Bess, the Broadway production were in town to lead the Municipal Operas production and a famous pianist and violin player (forgot their names) were in town for a charity event.

    The theater (Fox Theater) was filled with kids from all the high schools at the once a year day with the Symphony. There were kids literally moved to tears by the art. A couple of the ‘bad’ kids from my school, seated near me, were moved to near rapture. I had always hated the school experience but that was the first time I started asking myself things like ‘what is wrong with school- why can’t school do this all the time?’ Meaning engage us, make us happy to see and learn about new things? Those field trips were eye-opening on many levels.

  26. Leejcaroll, is an aggregation site with far ranging topics and little politics. Cory Doctorw, Sci-Fi author and Renaissance man and perpetual child in his constant delight with quirky stuff- books, comics, the new ‘maker’ movement and that new tech, space/science, dog and/or cat vids and pics at least a couple of times a week, the politics of the information revolution and the political threats to it and just bunches of stuff. It, like this blawg is a daily must read for me.

  27. LK,

    One of my favorite actors lived in MI and is one of the main voices for Darth Vader which in my opinion was the best…. On a side note.. He stuttered in school.. But for a wonderful teacher that helped him, he may not be where he is today…..

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