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?


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.

  • 1
    Your tl;dr is the opposite of what all your sources say.
    – bdb484
    May 19 '21 at 3:16
  • 2
    @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 '21 at 3:28
  • 3
    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 '21 at 4:04

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

  • 5
    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 '21 at 0:57

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