Kanye West caused major controversy this weekend (see some of the response tweets below) when he issued a casting call for his “Season 4” show, which called for “Multiracial women only.” Undoubtedly a significant step towards promoting diversity in the notoriously white-washed fashion industry – something West has consistently done, maybe more so than any other designer in the recent past – the casting call nonetheless gives rise to at least one significant legal issue: it is likely in violation of federal and local employment discrimination laws.
Under the laws enforced by U.S. Equal Employment Opportunity Commission (“EEOC”), a federal agency that administers and enforces civil rights laws against workplace discrimination, it is illegal to discriminate against someone (either an applicant or employee) because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. Title VII of the Civil Rights Act of 1964, in particular, prohibits employment discrimination based on race, color, religion, sex and national origin.
Similarly, under New York City’s Human Rights Law, namely, section 8-107, it is unlawful for employers “to refuse to hire or employ” someone “because of [his/her] actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status.”
[Note: Models are almost always categorized as independent contractors – as opposed to “employees” – but that does not necessarily change the hiring party’s ability to run afoul of employment discrimination statutes. At least two recent federal court decisions – Brown v. J. Kaz, Inc. d/b/a Craftmatic (in the 3rd Circuit Court of Appeals) and Halpert v. Manhattan Apartments Inc. (in the 2nd Circuit Court of Appeals) – remind employers that they can be held liable for discriminatory acts against their independent contractors. These cases, and their predecessors, make it clear that employers cannot contract away liability for discriminatory acts.]
According to a recent article from Corporate Counsel dissecting an April 2016 casting call from the producers of award-winning musical, Hamilton, which called for “non-white” actors, under federal law there is a very narrowly interpreted defense that allows an employer to discriminate on the basis of “religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification (BFOQ for the legally-minded among us) reasonably necessary to the normal operation of the particular business or enterprise.” This is known as the bona fide occupational qualification. But “race” and “color” are noticeably absent from the language of this defense.
Despite the comments of those of social media – at least one of which stated: “It’s art. It’s a casting call. Absolutely allowed. That’s how casting works.” – that’s actually not how it works legally, at least not according to the rulings of various federal courts in the U.S.
According to Ferrill v. Parker Group, Inc., 168 F. 3d 468, a case from the U.S. Court of Appeals for the Eleventh Circuit, casting directors and co. are not shielded from discrimination laws. According to the court in that case, “A film director casting a movie about African-American slaves may not exclude Caucasians from the auditions but the director may limit certain roles to persons having the physical characteristics of African-Americans.”
With this in mind, West is almost certainly on the wrong side of the law in connection with his “Multiracial only” casting call. It is worth noting very emphatically that West is very likely casting in this manner with very noble intentions – to increase the amount of diversity in the fashion industry and send a message to others in the industry that they should do so, as well. This article – a straightforward legal analysis of how federal and local employment discrimination laws apply to the specific language of the “Season 4” casting call – does not question that or aim to put that at issue.
Having said that, West’s intentions do not change the law and how it applies. Furthermore, while “Multiracial” has been defined in a number of ways, the most uniform understanding of the word is that is refers to “people of several or many races,” and thus, excludes people of just one race. As such, the problem is that the casting memo explicitly states that one particular group – single racial individuals – cannot apply, and that runs afoul of both New York’s Human Rights Law and Title VII of the Civil Rights Act of 1964.
Because the “Season 4” casting has already taken place (the show is scheduled for Wednesday), there is no need for West to issue an amended casting call, although he likely would have been forced to otherwise. Moreover, it is worth noting that for seasons to come, casting directors and designers alike should be aware that such discrimination-based casting calls are, in fact, illegal (Period. Regardless of any positive intentions that may lie behind them, such as increasing the amount of diversity in the fashion industry) and should not be utilized in order to avoid legal ramifications.
If any non-“multiracial” women want to file a complaint against Kanye West with the EEOC in connection with the aforementioned discriminatory practice, you can do so here.
UPDATE (9/7/16): In trying to defend himself to Vogue, West only made it worst, saying: “How do you word the idea that you want all variations of black? How do you word that exactly?” You, don’t Kanye, because that’s illegal.