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This is a belated follow up to an earlier question where I asked how one can get away with hiring actors of an appropriate race when BFOQ (Bona Fide Occupational Qualifications) exceptions do not apply to race. The answer was that you can't insist on hiring someone who is black, but you can require someone that looks black.

So taking that to the logical extreme if one employer is allowed to make requirements based off of one's apparent race why can't others? If I have some organization that panders to racist folks can I say I need all my servers to look like the appropriate race so that I don't offend my clientele?

I'm pretty sure (and hope!) the answer is that this isn't legal, but what I'm wondering is more what the distinction between these two cases is. How is the line drawn between the few legitimate reasons where hiring someone based off of the race they appear to be makes sense and all the numerous occasions where it would just be an end-run around refusing to hire someone based off of race? Is there an actual hard and fast line here? Has there been a court case where someone tried to hire only people that appear white as a means of discrimination and the courts gave a ruling specifying why it wasn't allowed?

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    I think it depends on what position the person is hiring for as hiring a model can have different requirements then hiring waitstaff at a restaurant.
    – Joe W
    Commented Feb 28, 2022 at 19:55
  • "If I have some organization that panders to racist folks" - I can only assume that this stance has to have been documented in the business proposal to the local ordinance and I doubt "The KKK Experience" is something that gets approved except for in the most racist cities across America.
    – MonkeyZeus
    Commented Mar 1, 2022 at 13:24
  • I wonder if an athletics coach lost his job because he could not coach the 800 meters if the courts would consider race-ial discrimination?
    – Neil Meyer
    Commented Mar 2, 2022 at 15:05
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    These questions always make me wonder: Craigslist is full of ads for "cleaning lady"; can I sue them because I'm a good cleaner but don't fit the gender demanded in the job description?
    – B. Goddard
    Commented Mar 2, 2022 at 20:19
  • @B.Goddard you couldnt' sue craigslist because it's not responsible for adds put up by people using their service, web 2,0 services like it and facebook etc are given protections so that a random user posting something on their website doesn't make them liable for that persons behaviors. It would be hard to find, much less get anything useful out of, the random individual on craigs list who made the post. Besides that I imagine one can claim that 'cleaning lady' was just a bad description and they were open to all genders since it didn't explicitly say no men.
    – dsollen
    Commented Mar 3, 2022 at 16:41

3 Answers 3

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No.

The Civil Rights Act of 1964 prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin. It is therefore generally forbidden for an employer to refuse to hire someone because they are not white/black/etc. or because they do not look white/black/etc.

The law permits exceptions when the employee's religion, sex, or national origin is a bona fide occupational qualifiction, but not when the employee's race or color is a bona fide occupational qualification.

The answer to your previous question was wrong because it adopts an "is black vs. looks black" distinction that doesn't really work. Discriminating against someone because they "look black" is the same thing as discriminating on the basis of color. Even if you were saying someone "looked black" because of their hair or facial structure or clothing, you're talking about "perceived as" discrimination, which many courts treat as equally impermissible. See, e.g., Perkins v. Lake Cty., 860 F. Supp. 1262, 1278 (N.D. Ohio 1994) (“Objective appearance and employer perception are the basis for discrimination and, in the opinion of this Court, the key factors relevant to enforcing rights granted members of a protected class.”).

As far as I know, the question of whether one may discriminate on the basis of race or color in casting decisions is still unresolved, but the courts that have looked at it seem to so far be in agreement that casting directors may make engage in that kind of discrimination because their constitutional rights to create their art as they see fit under the First Amendment overrides their statutory obligation to provide equal employment opportunities under the Civil Rights Act.

For example, the issue arose when a black man brought civil-rights claims against ABC for excluding him from auditions for The Bachelor. ABC argued that its casting decisions are an essential component of its expression, and the court agreed:

Ultimately, whatever messages The Bachelor and The Bachelorette communicate or are intended to communicate — whether explicitly, implicitly, intentionally, or otherwise — the First Amendment protects the right of the producers of these Shows to craft and control those messages, based on whatever considerations the producers wish to take into account. ... Thus, whether enforcing § 1981 here would frustrate, enhance, or be entirely consistent with the message that The Bachelor and The Bachelorette conveys, the First Amendment protects the producers' right unilaterally to control their own creative content.

Claybrooks v. ABC, Inc., 898 F. Supp. 2d 986, 1000 (M.D. Tenn. 2012).

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    I think there was a theater playing Othello with the guy playing Othello being the only white one - all other actors were black.
    – gnasher729
    Commented Feb 28, 2022 at 18:23
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    @gnasher729 I suppose it was intended like this by the stage director, not because they couldn't refuse to take white/black actors for the respective roles. Commented Mar 1, 2022 at 9:30
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    @DmitryGrigoryev Yes, that was intentional. See also en.wikipedia.org/wiki/Race-reversed_casting Commented Mar 1, 2022 at 9:30
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    @gnasher729 I believe Patrick Stewart did that. Commented Mar 1, 2022 at 18:44
  • There is also the case of Gershwin. He made almost exclusively use of african-American actors in his musicals. Still to this day you are unlikely to find a rendition of porgy and Bess without a mainly black cast.
    – Neil Meyer
    Commented Mar 2, 2022 at 15:12
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In the case of an actor, the actor's appearance, even the actor's detailed appearance, is pretty clearly a BFOQ. The actor must fit the director's (or producer's) vision of the role, and fit into the rest of the cast visually (or stand out in the way wanted for the particular production.) For example, in a traditional production of Othello the actor must look Black. In a crime drama set in inner-city Los Angles, the actor must seem to fit that setting, and quite possible must look Hispanic, depending on the details of the drama and role.

This is not true for most occupations. The employer has no legitimate interest in how a truck driver or cook looks. While there is some superficial plausibility in the "my customers won't accept a server of XX race" claim, I believe it has been held that this makes unlawful racial discrimination by the owner too easy, and this has been held not to be a BFOQ.

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    @dsollen Appearance can, in special circumstances, be a BFOQ. Even racial appearance as in "looks black". It may be that in some very limited circumstances race can. Commented Feb 28, 2022 at 16:35
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    Appearance may or may not be a BFOQ, but it definitely isn't among the BFOQs that the Civil Rights Act accepts as an exception. I think OP correctly highlights the problem with the answers to both of his questions.
    – bdb484
    Commented Feb 28, 2022 at 16:44
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    @DavidSiegel can you back up your claim that appearance can be used as a BFOQ exception with any specific laws or court cases?
    – dsollen
    Commented Mar 1, 2022 at 14:28
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    And even in such cases, appearance matters far more than race. For example, a tanned Catherine Zeta-Jones did such a convincing job of playing Elena in The Mask of Zorro that many people are surprised to learn that she is Welsh and does not have a drop of Hispanic blood in her body. Commented Mar 1, 2022 at 18:47
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    @dsollen: Here's a lead.
    – Nat
    Commented Mar 1, 2022 at 23:22
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They can get away with it, but in the US, at least, it strongly indicates a violation of the Civil Rights Act. A non-racist business owner can also lose a Title VII suit, since the Civil Rights Act isn't used to convict people of racism; rather it protects people from discriminatory hiring practices, which may be subjective.

Notably, the opposite scenario to what is often assumed can also happen; if a business owner or government manager refuses to hire/promote someone because they are "white" the law may also punish that employer. This can happen regardless of whether the employer is also white, or is black, etc. It can also happen if the employer has what they consider good intentions--for example, if they want to give black job applicants a chance at a job.

This is possible simply because when they decide not to hire or promote the (majority) applicant based on race or color, they are violating the act. Minorities are not exclusively protected by the act, people are protected, and what they are protected from in this case is "discrimination based on race or color." So it is the act of discriminatory hiring based on race, sex, etc., that triggers the law.

Now BFOQ... there are of course some exceptions. A Shinto priest can not force an Apostolic monastic order to hire them as chief abbot, regardless of how qualified they may be in Shinto. Their qualifications as a religious leader are irrelevant in this case because the Apostolic set of beliefs and practices is "essential" to the operation and purpose of an Apostolic monastic order.

You might also be familiar with Hooters, a restaurant which is known for using fertility signals to attract male customers. They were indeed sued by some men who they refused to hire as servers, and they settled the suit. They didn't actually lose it though. What they did was agree to make available a number of gender neutral positions for employment. They preserved the right to select servers based on the signals of attraction considered essential to the business.

And of course there are acting roles, which are somewhat easier to defend under the bona fide occupational qualifications. I'm sure there either is or will be an exception somewhere, some day, but it's not going to be easy to sue someone for refusing to hire a light skinned person for the role of a person who was discriminated against for their dark skin. Or a dark skinned person for the role of an albino for that matter. There are some cases where inborn physical characteristics such as color are an essential job qualification. But at the same time, plaintiffs and courts, much less law and administrative code, will likely never define every situation where that is deemed legitimate, vs the situations where it is deemed unfair and illegal discrimination.

See:

  • EOCC v. Hooters
  • Duvant v. Novant Health

Also:

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    In South Africa it is also an accepted that requiring a priest to be religious is not discriminatory. Requiring the churchs bookkeeper to be religious on the other hand is.
    – Neil Meyer
    Commented Mar 1, 2022 at 7:17
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    As I understand it hooters is generally agreed to be violating the law by selecting only female waitresses. They get away with it because they settle any cases where someone claims discrimination and just write off the cost of settling cases as cost of doing business.
    – dsollen
    Commented Mar 1, 2022 at 14:31
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    I don't think it's ever been fully litigated, but Hooters takes the position that it operates under the same rules that permit a casting director to hire only white actors for white roles, i.e., its waitresses are not just waitresses but entertainers.
    – bdb484
    Commented Mar 1, 2022 at 18:07
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    @Kevin Arguably Southwest has no special business interest in providing sex appeal, aviation tradition aside. But if they were to rebrand as e.g. Tits on Wings then they might have a case. Consider the name Hooters is a euphemism for breasts.
    – dotancohen
    Commented Mar 2, 2022 at 9:08
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    @dotancohen: At the time, they were explicitly targeting male businessmen with sex appeal, by trying to only hire young and attractive flight attendants. It wasn't just a "tradition," it was a full-blown business strategy.
    – Kevin
    Commented Mar 2, 2022 at 17:07

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