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Title VII of the Civil Rights Act of 1964 reads:

"It shall be an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise 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"

However, there is an exception made for BFOQs (Bona Fide Occupational Qualifications). Specifically the law states

"It shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."

Race and color are included in the first section, making it illegal to refuse to hire someone on those basis; However, the BFOQ exception does not apply to race or color. Thus it would appear there is never a situation where one can choose an individual based off of their race.

So consider a situation where I'm casting for some play or movie and I've already picked the a black man and women for the main married couple. I'm now trying to pick a child to play the biological son of these characters. This would seem a clear case of a BFOQ if race were included in the exception, The audience is clearly going to notice if the child and parents were a different race and that is going to lead to either confusion or expectation that the child was adopted that could mess with the narrative, so the race of the child seems relevant.

However, as I said, BFOQ exception doesn't appear to apply to race or color. Does that mean that it would be illegal in the USA to refuse to hire a white child in this situation?

Assuming that it would be how does the TV and Movie industry manage to keep race of family members consistent without constantly having to pay out settlements to people who were excluded due to their race?

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  • Please note that "the BFOQ exception does not apply to race or color" only means that, for example, you are not allowed to say that an actor cast in the role of Napoleon must have exclusively European (or French) ancestry. However, you are allowed to say that the actor must look similar to the historical Napoleon.
    – vsz
    Mar 2, 2022 at 7:55

4 Answers 4

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Courts have not yet reached a final answer on whether the practice you've described would be illegal.

On its face, this practice seems to be a straightforward violation of the laws you've quoted. Refusing to hire someone because he is white is discrimination on the basis of race or color, and neither of those criteria can be bona fide occupational qualification.

Nonetheless, it seems to be generally accepted that this practice remains legal, though there remains some disagreement as to why it is legal.

As noted in Just A Guy's answer, lawmakers appeared to believe that this practice would be legal because casting directors could limit their choices to people who "appear" to be of a certain race, rather than limiting themselves to people who actually are members of a race. But legislative commentary isn't actually controlling when it runs contrary to the text of the law, as this commentary is. After all, one cannot generally appear to be black without the color of his skin being black.

Arthur Larson, a professor at Duke Law, offered a similar approach:

Perhaps the only way an employer could deal with this type of problem would be to cast his requirements in neutral terms so as to come within Griggs and its business necessity rule. The employer might, let us say, announce that he will consider applicants for the part of Henry VIII only if they bear a sufficient likeness to Henry VIII so that, with suitable make-up, they would present a convincing representation of the well-known monarch. This would rule out women, and many men too thin to be successfully padded out or too short to be adequately regal, as well as most blacks. As to black applicants, the employer could quite possibly contend persuasively that no amount of white make-up would do an adequate job of transformation, just as no amount of padding would save the day for a 110-pound white aspirant. Therefore, the neutral test of rough similarity to Henry might be successfully backed up by the business necessity rule.

A. Larsen, Employment Discrimination, § 72.10.

Although this issue seems like it might pop up all the time, I was only able to find one case where it was actually litigated. And in that case, there was no real discussion of whether race was or was not a BFOQ, or whether there was some "business necessity" for limiting casting to white candidates.

Instead, the producers argued -- and the court agreed -- that casting decisions are protected by the First Amendment because they have expressive consequences and "are a necessary component of any entertainment show's creative content":

The producers of a television program, a movie, or a play could not effectuate their creative vision, as embodied in the end product marketed to the public, without signing cast members. The plaintiffs seek to drive an artificial wedge between casting decisions and the end product, which itself is indisputably protected as speech by the First Amendment. Thus, regulating the casting process necessarily regulates the end product. In this respect, casting and the resulting work of entertainment are inseparable and must both be protected to ensure that the producers' freedom of speech is not abridged.

Claybrooks v. Am. Broad. Cos., Inc., 898 F. Supp. 2d 986, 999 (M.D. Tenn. 2012).

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    I wish I had more upvotes to give. I've pondered this sort of question before and never considered the 1st amendment angle before. Thanks! May 11, 2023 at 17:35
  • "After all, one cannot generally appear to be black without the color of his skin being black." There's a pretty broad range of skin colors considered Black in America, thanks to the "one-drop rule". See, for instance, Rachel Dolezal. I think I remember a guy doing something similar with bronzer and a pencil moustache, but I can't seem to find his name.
    – nick012000
    May 11, 2023 at 21:00
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TL;DNR: Under Title VII, it would be illegal to require the actor to be black, but it would be legal to require the actor to look black.

As you say, the "bona fide occupational qualification" (BFOQ) exception does not apply in this case. Courts have consistently followed the express language of the statute, and held that the BFOQ exception applies only to discrimination based on "religion, sex or national origin." As the Equal Employment Opportunity Commission's "Facts about Race/Color Discrimination" page says, race can never "be a bona fide occupational qualification under Title VII."

To get around the wording of Title VII, casting directors rely on the distinction between "is black" and "looks black." In theory this approach means a white actor could be hired to play the child of black parents, although as a practical matter, that seems unlikely.

This approach was first offered during the debates in Congress over Title VII. For example, in their "Interpretive Memorandum," the Senate floor managers say:

Although there is no exemption in Title VII for occupations in which race might be deemed a bona fide job qualification, a director of a play or movie who wished to cast an actor in the role of a Negro, could specify that he wished to hire someone with the physical appearance of a Negro – but such a person might actually be a non-Negro. Therefore, the act would not limit the director's freedom of choice.

PS For those who want more, there are plenty of blog posts and a smattering of scholarly articles. This article, asking whether there should be a BFOQ for entertainment, offers a thorough discussion that is fairly accessible and friendly to non-academics.

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    Your tl;dr is the opposite of what all your sources say.
    – bdb484
    May 19, 2021 at 3:16
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    @bdb484 I suspect that it's because the thesis sentence is internally inconsistent. Just a guy: should the second clause begin "but it would not be illegal..."?
    – phoog
    May 19, 2021 at 3:28
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    Well that was sloppy. You are both right -- I screw up b/c I tried to edit and proof-read at the same time. It should be fixed now. Thanks for the heads up.
    – Just a guy
    May 19, 2021 at 4:04
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The Equality Act 2010 makes a specific exception for film and theatre actors as well as models. You can specify a range of pre-conditions including age, race, gender, etc.

Part 1: Occupational requirements

787. This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age – or not being a transsexual person, married or a civil partner – is a requirement for the work, and the person whom it is applied to does not meet it.

789. The need for authenticity or realism might require someone of a particular race, sex or age for acting roles (for example, a black man to play the part of Othello) or modelling jobs.

c.15 > Explanatory Notes > Commentary on Sections > Part 16 > Schedule 9 > Part 1

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Being white is a “bona fide occupational qualification” for a child actor to fill the role of a natural child of white parents.

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    I think you should read the question again - the law as quoted appears to say there is no BFOQ exception for discrimination on the basis of race or color, only for religion, sex or national origin. If that's right then your answer is irrelevant. If you're claiming that such an exception does exist, then citation needed May 19, 2021 at 0:57

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