Best Employment Discrimination Lawyer: Can I sue for reverse race discrimination? Are there some jobs were you can just a particular race or gender? What should I do if my boss fired me because I’m Black?
Thank you Matt Damon. Thank you for providing a wonder topic for this installment of our employment lawyers’ blog. I woke up this morning to an article in my Flipboard app on my phone: “Matt Damon Causes Controversy with Comments About Diversity in Movies.” Matt Damon is a good guy that saves the world, stops bad guys (unless he is stealing from casinos with George Clooney and Brad Pitt), and he gives money to Project Greenlight, which he founded with Ben Affleck to support new movie makers. What controversy did he cause?
On the HBO Project Greenlight reality TV show, he responded to another judge’s suggestion that a minority director team (an Asian man and a Caucasian female) should be favored because the movie will be about a Black prostitute that gets hit by a White pimp by saying: “When we’re talking about diversity, you do it in the casting of the film, not in the casting of the show” director. A chorus of boos rained down upon the seemingly villainous Damon. But let’s step back for second.
Our employment law attorneys have also blogged about so-called reverse discrimination. (See Top Race Discrimination Lawyer Response: What Is Reverse Discrimination?; Top Wrongful Termination Lawyer Reply: Can White People Sue For Race Discrimination in Ohio?; and Top Race Discrimination Lawyer Reply: Do Race Discrimination Laws Protect White Employees?). Title VII makes it unlawful an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” What’s missing? If you said any mention of a particular race, color, religion, sex, or national origin, you get a gold star. Neither Title VII or Ohio’s employment discrimination laws specifically address or protect a particular minority. In fact, the law does not even say that you have to be a minority to be protected. These laws equally prohibit discrimination against any race, any religion, any national origin, and both genders. So, an employer could not choose a Black accountant over a better qualified White accountant just because of race. A boss cannot say that he wants a female secretary over a better qualified male secretary just because of gender. See how that works? The law simply says don’t consider these protected class characteristics at all in making hiring decisions, except …
Just a month ago, our employment discrimination attorneys blogged about bona fide occupational qualification (“BFOQ”) as an exception to laws prohibiting employment discrimination based on race/color, religion, gender/sex, national origin, age, or disability. (See Are There Exceptions To Anti-Discrimination Employment Laws? I Need A Lawyer!). Now, you won’t find BFOQ defined in Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (“ADA“), Age Discrimination in Employment Act (“ADEA“), or the Ohio employment discrimination statutes (R.C. § 4112.02(A). It was an exception that was create by courts. Essentially, the BFOQ means that hiring decisions can be made on the basis of race, gender, and so on if such considerations are necessary to the normal operation of that particular business or enterprise. In the employment law blog that I just mentioned, our employment discrimination lawyers discussed that BFOQ should apply to movie actors that portray historical character. A Black male actor should be cast to play Muhammad Ali and a White male actor should be cast to play Abraham Lincoln. Makes sense, right? But, there was no BFOQ that a Jewish actor play Moses, hence Charlton Heston and Christian Bale. And, it should be pretty hard to apply the BFOQ to fictional characters, which lead to the casting of African Americans Michael B. Jordon and Quvenzhané Wallis respectively as Johnny Storm in the Fantastic Four movie (it sucked) and little orphan Annie (great!).
Okay, now with the concepts of reverse discrimination and BFOQ in mind, we return to Damon. He further commented that the Project Greenlight contest is about “giving someone this job based entirely on merit and leaving all other factors out of it.” To me, that sounds exactly like the best simplified statement of Title VII that I have seen. Picking a candidate based on the merits! What a great concept! On the flip side, Effie Brown, a film producer, said that race and gender should be considered. If Brown had been saying that race and gender should be considered to pick a White male directing team, it would have been outrageous and a clear violation of both Title VII and Ohio laws. Brown’s criteria is still a violation of the law because it considers race, national origin and gender … unless there is a BFOQ.
So let’s look at that. Is it a BFOQ to have a minority direct a movie about another minority? I’m not sure what greater insight an Asian man and a White woman have about a Black prostitute. Quite frankly, I find this argument insulting because it lumps all very distinct minorities into one generic group. Our attorneys recently had a case where the boss argued that he was not racist against Blacks, although he had never hired one in 10 years, because he had hired one Hispanic employee. You cannot lump minorities together and call it a day. In this particular case, I find it ridiculous to argue that an Asian man or privileged White woman have any translatable experiences to being a street prostitute and having to deal with their pimps, regardless of race.
Broadening this issue for the point of discussion, would it be a BFOQ to have a Black director direct movies about African American History or a White director direct movies about a Caucasian historical figure – regardless of qualifications? Remember, these two parts are tied together per Title VII. If you cannot use a BFOQ exemption to choos a less qualified White director based on race, you cannot use race as a BFOQ to select a less qualified Black director based on race.
All of the above talks about law. Let’s move to practical realities. Pretty Woman, a movie about a young White prostitute, was directed by an older man. The acclaimed TV miniseries Roots had all but one episode directed by White men. Glory, about the all Black Civil War Battalion, was directed by a White man. 16 Candles, the quintessential female coming of age movie was directed by a man. All of these are classic and well recognized movies. The director did not have to share the racial or gender characteristics of the main character.
The problem arises when I started to look for examples of Black directors that directed movies about White folks. Sure, there is Antoine Fuqua directing Shooter; F. Gary Gray directing the Italian Job; and John Singleton directing Four Brothers, which – aside from all being Mark Wahlberg movies, are fun but not real significant movies. The best that I could come up with was Forest Whitaker directing Platoon way back in 1986. But, most of the great African American directed movies star or predominately feature Black actors. If White directors can direct movies about Black History with Black actors, then certainly Black directors can direct movies about any race, gender or national origin.
Fixing this problem cannot be done just by having Wahlberg star in more movies. So, how do we fix this? Not Brown’s way of insisting the minority directors need to work on movies about minorities. That will only make the existing problem more profound. To me, this argument favors allowing minorities to have their own movies that feature minorities to direct, like having separate but equal bathrooms. Would anyone allow a boss to say let’s only consider hiring a Black manager to manager a department with mostly Black employees so that we don’t have to hire Black managers for another department? Of course not. But, that is essentially Brown’s argument. Brown’s argument is dangerous because it puts the focuson the minorities’ minoritiness and not on their talent and merits. Doing so will devalue those candidates for the next round of jobs when the movie or the job is not about being a minority. It promotes the wrong line of thinking that they got their last job “because they were a minority.” Too many minorities fight this perception too often … he only got into that school because he is … she only got that job because she is … This type of thinking must stop.
No, the right answer is to apply Damon’s approach to all of Hollywood, not just Project Greenlight so that we see Spike Lee, Tyler Perry, Ava DuVernay, Gina Prince-Bythewood, or the above directors getting their shot to direct more so-called mainstream movies. These are talented directors. Judge them on their merits and get them to direct more movies without consideration of their race. Certainly, any of these directors would have done a better job than Josh Trank did with the Fantastic Four reboot. Give one of these talented directors the helm of one of these franchises and see what they can do with it.
As Matt Damon would say, how do like them apples?
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