July 26, 2007

Is it illegal sex discrimination to hire only females to host "The View"?

Can producers of "The Price Is Right" decide their audience wants a male host? Is it wrong to insist on a male to play the role of Edna in "Hairspray"? Lawprof Ian Ayres thinks it is:
Title VII prohibits sex discrimination in employment unless the employer can establish what's called a BFOQ or "Bona Fide Occupational Qualification." The EEOC Guidelines do allow intentional sex discrimination in hiring an actor or actress where the sex-specific roles are necessary for the "purpose of authenticity or genuineness," see 29 C.F.R. § 1604.2(a)(2). But there is no way that the producers could establish that sex was a BFOQ for being host of "The Price is Right."

The same conclusion probably holds true for hosting "The View." The thought that only women could host a talk show would be difficult to square with existing case law. Probably a dozen different hosts have been employed by The View. They have all been female. There is little doubt that the producers of that show discriminate on the basis of sex in hiring.

Indeed, even John Travolta's portrayal of Edna in the movie Hairspray raises a non-trivial BFOQ question. Travolta, like all of his predecessors, is male. But it's hard to say that casting a man for the part is necessary for "authenticity or genuineness" -- especially when the whole point of his portrayal is that Travolta (unlike Divine) is playing it straight.
I know. The idea of lawsuits over such things seems ridiculous. But exactly why is it ridiculous?

Personally, I feel insulted by what the networks put on TV during the day. The whole line-up makes the statement: This is what we think women are. Or: This is what we think nonworking women are. Not that I wish I could sue. I'm just offended.


Eli Blake said...

This is a tough question. Their market research people have undoubtedly, rightly or wrongly, concluded that people are more likely to tune into the show with a female host. Or maybe they didn't do the research but are proceding under that assumption.

The tricky part of it is, do you demand that the producers, whose paycheck depends on their hiring the right person, depart from the script and put their own wallet at risk in order to interview some men?

I would agree that yes they should-- the whole 'our paycheck depends on it' argument has been proven bogus in the past when it was used to justify not hiring African Americans for various positions, especially coaching positions. Nevertheless common sense dictates that at some level it does hold sway (i.e. they won't hire a completely unattractive news anchor, regardless of gender or talent because some people will turn to another channel and they will lose ratings = lose advertising revenue).

The whole 'Edna' controversy is really based on the weakest of all arguments for discrimination-- tradition. I find their hiring Travolta to play a fat woman really sad because there is no question that there are many talented actresses out there whose only bar to getting a job is their size. So hiring a man to wear a fat suit for one of the few roles that they could and should play is insulting in itself.

Incidentally, it is 'tradition' for a woman to always portray Peter Pan. Which makes this story timely. Did the Muny make money on the performance? Does anybody know?

rdkraus said...

I wonder if this is what Thomas Jefferson had in mind?

Somehow, I doubt it.

EnigmatiCore said...

"The whole line-up makes the statement: This is what we think women are. Or: This is what we think nonworking women are."

While that may be the statement you infer, the actual one is more like "this is what our experience and our testing shows will produce the best combination of viewership demographics and advertising dollars."

In other words, if people did not watch, and if advertisers did not find value in airing their spots during these shows, the shows would be different.

Akiva said...

I fail to understand why a business owner, those who's business is oriented around public presentation, would be legally limited in how they choose to make that public presentation.

You may say that their choice is poor, doesn't appeal to you, doesn't interest you, and therefore you choose not to utilize their business (be it restaurant, TV show, etc), but to legally challenge them????

rhhardin said...

I threw out my TV in 1971 in disgust because, as a guy, I was tired of being addressed as a woman. I'm surprised more women don't, as well.

The fact is, though, that the only audience you can draw reliably is that 40% of women who are interested by soap opera themes and fragments ; and the audience you can draw reliably constitutes the business model, because you can sell them to advertisers.

Audience you can't draw reliably doesn't figure in, and that includes the 60% of women who are offended. So they don't care what you think, in short. (Interesting that you know you ought to be offended as a woman ; you know about the 40%, and it marks you too.)

That TV edits every national debate is the problem. No discussion that doesn't involve soap opera themes can survive.

What's significant about talk radio is that it avoids those themes, and can survive on its smaller audience.

Simon said...

Back when Ledbetter came down, I defended the ruling in comments at various lefty blogs that came to my attention, and in one of them, a commenter attempted to dress me down for suggesting that Title VII protects victims of gender discrimination regardless of their gender and victims of racial discrimination regardless of their race.

In the view of people like that, the question posed by this thread is easy. Title VII's protection against gender discrimination is intended to protect women, so how can it possibly be illegal sex discrimination to hire only females to host "The View" when that practise helps women?

Welcome to the purposivist/intentionalist view of law, wherein "the written word is but an imperfect reflection of the real law. The true law, the governing rule, is not down on paper; it is in the minds of the legislators. The true rule applies no matter what the words say. If the statute is just evidence of the rule, the debate must go on." Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.of L. & P.P. 59, 60-1 (1988).

jimbino said...

I'm offended that newspapers now have sections called "Style" or "Dining In" or "Home" instead of calling them, as they used to, by the proper name "Women's Pages." Thank Darwin I don't need to buy them anymore to get the real men's news.

The problem in the post only occurs in areas that suffer the heavy hand of government. If we had a free market in airwaves, as we do on the Web, someone who didn't like the line-ups offered by the standard broadcasters could simply start one up as he wished, employing only gay men, for example.

If the gummint every takes over dating, you will have to date men and women, blacks and whites, gays and straights, on an equal basis!

Let's get rid of the nanny state!

Robert Fovell said...

The idea of lawsuits over such things seems ridiculous. But exactly why is it ridiculous?

Perhaps because it reveals the fundamental nature of social engineering, which is ridiculous at best and pernicious always, even when well-intended. This is not what this country was founded as or intended to be. More's the pity.

Two relevant Heinlein observations:
"Freedom begins when you tell Mrs. Grundy to go fly a kite."

"What I fear most are affirmative actions of sober and well-intentioned men, granting to government powers to do something that appears to need doing."

Galvanized said...

Actually, I'll have to say that most all of TV content offends me at all times of the day. :) However, "The View," which I hardly even see anymore, tries in at least a couple of segments to address issues that are of interest to women, with the exception of all of the celebrity hype. (I do wish they would just discuss news/current events and real women's issues and get rid of all the celebrity fixation, but they seem to think it's part of being a woman - which it isn't.) And I do believe in the BFOQ in "The View"'s case. If a man were to sit at that table, the often explicit opinions voiced by the women would not be as straightforward; and the female hosts and audience alike would begin to defer to his opinion and act more demurely, as women often do, which would deplete quality content and real female commentary from the show. And I always find it funny how the men are so uncomfortable with the high estrogen level when they are guests. There is no way that a man could be a regular host on that show and it be still for women. LOL

But, Althouse, I am definitely with you on the daytime TV mess. It's a joke.

michael farris said...

"The whole 'Edna' controversy is really based on the weakest of all arguments for discrimination-- tradition."

Blogger just ate my long answer (thank you!). Here's a quick recap:

Having a man play Edna is part of the structure of a work, whose theme is about the artifice of 'natural', commonly accepted divisions.
You _could_ have a woman play Edna but to retain the structural integrity of the piece you'd have to have some other barrier-crossing casting.

Peter Pan is different. Basically most male actors who could play Peter will have too many male secondary sexual characteristics (too much hair, too many muscles, too deep a voice) that will clash with Peter's perpetual prepubescence. Actors young enough to be right physically aren't up to the rigors of the role.

Theoretically a young man who doesn't mind being made up to look like a young boy (and who can do so convincingly) could play the part.

My main concern with Yue is he seems a little long in the tooth for the role (if the pictures I could find are any indication).

Finally, I'm in favor of theatrical (and eventually film?) color blind casting (long the practice in opera where a father-daughter duo might be played by a white baritone and black soprano or vice versa). The movie Chicago was a step in the right direction. I'm pretty sure there's no way a prison matron in 20's Chicago would be a black woman, but Queen Latifah's performance made her race a non-issue.

DKWalser said...

Are we discussing what the law is or what the law ought to be? Congress choose to outlaw certain forms of employment discrimination (while requiring others), so, yes, I think it's plausible that it's illegal sex discrimination to hire only females to host "The View". Plausible because the counter argument might be that The View is a show about women's views rather than a show about the views of people in general or about the views of Washington based journalists. If the show is about the views of women, it would seem a legitimate requirement that the "cast members" be women. On the other hand, I don't think there could be any plausible legal justification made for only considering one gender when selecting the next host of The Price Is Right.

Having stated my understanding of what the law is, let me also state that I don't think is is what the law should be. With only very rare exceptions, government should stay out of employment decisions. Would discrimination occur? Yes. It does anyway. I have little faith that government action in this area solves more problems than it creates.

I have greater faith in the ability of ordinary people, acting as part of the market, to solve such issues. For example, for years I've helped run a professional services firm. If my competitors only hired men (or women, or etc.), we'd kick their tail in the marketplace. We'd win for two reasons: First, we'd have a larger pool of talent from which to recruit. On average, we'd have better people than would another firm recruiting from a smaller pool. Second, the marketplace (both clients and prospective employees) would avoid working with a firm known to discriminate.

B said...

Voice over from Barbara Walters before each episode of "The View":

. . . different women, with VERY different views.

Please! That only came close to being true when Elizabeth Hasselbeck joined the show in it's seventh year.

Previous years "differing views" were basically in the realm of which hostess could go further left on abortion, stem cells, yada, yada, yada.

But, as a show with only women hosts - why should anyone have a problem with that?

What's next - government forcing home book clubs to gender-integrate?

Lance Burri said...

If it's wrong to insist that a man play the role of Edna, is it also wrong to insist that a woman play the role of Ann in "Althouse: the Movie?"

lurker2209 said...

michael farris' comment reminded me of the first time I saw the TV Rodgers and Hammerstein's Cinderella with my little sister. She was a bit bewildered by the fact that the Caucasian King and the African American Queen had an Asian son. And the two ugly stepsisters were different races. I explained that it was a fairy tale and didn't matter before she was distracted by dancing townspeople.

But you couldn't do that for say the Wire. It'd be strange, and it'd undermine the points the show was trying to illustrate about race and class. As some point a story can become more myth than fiction, universal enough that the details of the orginal characters don't really matter--and then you can simply ignore race. Artistically I'm not sure where one draws that line. My hometown's community theatre group put on a staging of the Sound of Music cast with Van Trap children of different races. Would that be too weird to see on Broadway?

hdhouse said...

The fact remains that daytime television, syndiation and broadcast, generally outdraws any cable network at any time. just the facts. it is an effective advertising vehicle and there is no reason to believe that will change.

people follow soaps and syndication offerings like a religion. its not for me but it IS for them. that focus groups and endless surveys find a male for PIR and females for the View is audience preference. Period. It is what they want. This isn't tail wags dog.

Kim said...

It's ridiculous because there are certain times and places where having a woman only is appropriate.

There should be no federal law preventing sex discrimination. This could strike a lot of people as heretical (which it is to some sensibilities). Female patients who are more comfortable with female doctors should not be prosecuted. All female sports leagues, clubs, gyms, TV shows, staff at spas, good-looking female waitresses at sports bars, all-female strip joints (as well as all male strip joints), should all be allowed! Ladies' nights in New Jersey bars should not be illegal!

If there are situations where employers are turning away the best employees based on sex, then there are and should be consequences that do not need to rely on the law. There are boycotts, reduced productivity because they aren't getting good people, refuse to work for such an outfit, picketing--for the most active among us.

Bissage said...

Lance, fantastic idea!

Julianne Moore must play the lead.

She’s an intelligent actor with range and subtlety. She’s close in appearance and age. And she’s got a really nice . . ., er, . . .um, . . . box-office appeal.

Yeah, that’s it. Box-office appeal.

Simon said...

Bissage - she's very pretty, but I don't think she has quite the necessary, you know, luminescent magnetism.

Lance Burri said...

Billiam, Simon, why are you guys being so sexist? I hear Corey Haim is making a comeback.

Bissage said...

Wait a minute.

Julianne Moore's a chick?!


Brian said...

I am offended at exploitation of women every late night on Cinemax. I watch every single night and let me tell you I am disgusted by the way they gratuitously display woman as sex objects.

S said...

Perhaps - and I think I stole this from my brother - discrimination should be unlawful only if the plaintiff can demonstrate that it cost the defendant money. If it's profitable, then it's clearly not invidious, it's because the consumer wants discrimination.

Another thought I've had - if The View can be prohibited from choosing its cast based on sex, can the audience be prohibited from considering sex in deciding whether to tune in? Should colleges that sell tickets to men's basketball games be required to bundle them with tickets to women's basketball games? Should the purchasers of the tickets be forced to attend, or would forcing them to purchase the tickets be enough?

She was a bit bewildered by the fact that the Caucasian King and the African American Queen had an Asian son.

I had roughly the same reaction once when I watched Spongebob Squarepants and learned that it includes a crab whose daughter is a whale. I only watched a few episodes, but I still want to know who the mother is.