One of the hottest shows on Broadway is Hamilton, a hip-hop musical about the life and times of Alexander Hamilton that features people of color playing notable characters like Hamilton, George Washington, Thomas Jefferson, and other of their contemporaries. The use of a diverse cast to portray America’s beginnings is an important element of the show’s critical success. And so, with a view to expanding the show to other cities and going on tour, producers recently ran an open audition call for “non-white” actors.
Labor lawyers – and some fans – immediately pegged the ad as illegal, since it essentially said that white actors need not apply in violation of federal law that prohibits employers from discouraging people to apply for a job due to race, religion, gender, and other attributes. The producers defended the notice, stating that the principal roles were written for non-white characters, so being non-white constitutes a bona fide occupational qualification (BFOQ). The union representing theater actors said that even if the role depicted a certain race, gender, or age, auditions should be open to anyone. The producers eventually agreed to revise the casting call, inviting actors of all races and ethnicities, while making clear that the characters played are diverse.
Although the controversy applies to an issue particular to casting, employers in other industries can learn from the broader issue of job ad discrimination. Employment ads cannot eliminate applicants based on race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age, disability, or genetic information. While a statement of diversity in hiring is legal, exclusionary language like that in the Hamilton casting ad is not. And since the BFOQ defense is far from standard employment practice, employers would be wise to avoid it without consultation from an attorney who specializes in employment law.
Keep in mind, too, that state and local laws may have further requirements for non-discriminatory hiring policy. If you have any questions, we’re happy to help.