Mirror mirror on the wall: Hollywood is a reflection of systemic racism
“Film is a reflection of society, both present and past… Movies are a form of communication, and that communication, those stories, come from societies — not just where society is presently and what its doing now — but where society has been.” [1]– Tom Sherak
Tom Sherak’s words could not ring more true. The film industry reflects the unchecked and systemic racism to which our society subjects minorities. This racism is evident in the failure of our courts to extend the protection of the Civil Rights Act of 1964 to the entertainment industry, where the First Amendment Freedom of expression is more highly regarded than protecting the basic human rights of people of color.
In spite of the success of some black and brown people, Racism continues to thrive in our society because our laws do not have the teeth needed to protect people of color. Title VII of the Civil Rights Act of 1964 is one of the few tools with which people of color can protect their livelihood against discriminatory practices at work. Title VII declares it illegal for employers to fail or refuse to hire, to fire, or otherwise discriminate against anyone with respect to her employment because of her race, color, religion, sex, or national origin.[2]
The purpose of Title VII is to protect workers from discrimination at work.
The Supreme Court established the requirements a person must prove to protect themselves from race based discrimination in the work place. Under a Title VII claim a person making the claim must first prove that (1) she belongs to a racial minority; (2) she applied and was qualified for a job for which the employer was seeking candidates; (3) despite her qualifications she was rejected; and (4) after her rejection the position remained open and the employer continued to seek similarly qualified applicants.[3] If she can prove that she meets the requirements of the claim the courts then shift the responsibility to the employer to prove that he had a legitimate non-discriminatory reason for his actions.[4] Lastly, if the employer proves his actions had a legitimate non-discriminatory reason the employee must be allowed to prove that the employer’s reason was pre-textual.[5] An employee may also bring file suit against his employer under the Civil Rights Act of 1866 which states that all person shall have the same right in every state and territory to make and enforce contracts, and to sue.[6] The requirement of § 1981 are the same requirements for a Title VII claim.
McDonnell Douglass is instructive when it comes to race discrimination in hiring, but cannot sink its teeth into the film industry. McDonnell Douglas clarified the rule for Title VII claims as we understand it today. There a black mechanic for an aerospace engineering firm was fired during what was claimed to be a general layoff.[7] The mechanic then participated in protests designed to impede traffic to and from his Employer’s business, for which he was arrested.[8] After his participation in these protests, the Mechanic responded to a general advertisement from his Employer seeking mechanics.[9] The Mechanic, however, was passed over for the job. He then filed suit against his Employer for discrimination under Title VII.[10] The supreme court there found that the Mechanic had sufficiently shown a basis for his claim of of discrimination under Title VII, but that his employer had shown a legitimate non-discriminatory reason for passing him up in the hiring process.[11] The Court went on to clarify, however, that even though a legitimate non-discriminatory reason had been shown, the Mechanic is entitled to an opportunity to demonstrate that the non-discriminatory reason was pretext for a racially motivated employment action.[12] McDonnell Douglas, therefore, establishes a tool by which to protect against discrimination in the employment context. However, this tool is ineffective when it comes to Hollywood.
Although Title VII should protect all workers, it does not protect actors of color.
Title VII is unlikely to be an effective defense for actors facing discrimination at the workplace. Although a Title VII claim has not played out in the courts Claybrooks v. ABC provides an ominous prediction of what its result would be.[13] Claybrooks is the first lawsuit to be filed against a major Hollywood studio, and made a claim under the Civil Rights Act of 1866 rather than Title VII.[14] In Claybrooks two black contestants who auditioned for the Bachelor, were rejected as contestants, and filed suit. There the district court determined that the Bachelor has the constitutional right to craft and control its message under its First Amendment right to freedom of expression.[15] The First Amendment, therefore, is the greatest obstacle to racial equity in film because the constitution garners more weight than anti-discrimination statutes.[16]
There are many examples where a Title VII claim would have been successful were it not for the First Amendment’s protection of expression. Many movies have whitewashing the stories of people of color. The Slanted Screen, Avatar, Last Samurai, and 47 Ronin have all cast white actors in Asian roles.[17] However, whitewashing is not the only way in which Hollywood perpetuates racism, it is also seen in its depiction of people of color, and in the rationale behind its casting choices. Hollywood has used versions of blackface and yellow face in movies such as Breakfast at Tiffany’s, Othello, and A Mighty Heart.[18] In Drive, director Nicholas Winding Refn chose a white actress for a major role, explaining that he made this choice because he “could not find any actress that would click with [him] personally”… someone that he “wanted to protect.”[19]
If film is a reflection of our society, then the unchecked racism in Hollywood is an indictment of our values and our treatment of our POC. Where whites occupy 83.5% of lead roles minorities are not well represented on the silver screen. Black actors receive 9.5% of leading roles, Latinos 2%, Asian actors 2.5%, and Native Actors lack any significant representation in Hollywood.[20] Minority actors, however, cannot vindicate their rights because in Ingels v. Westwood and Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston the courts have protected the entertainment industry’s First Amendment rights higher than claims of discrimination.[21]
The success of a few black majority movies does not indicate that racism is over.
The success of minority actors, and the recent increase in depiction of black actors in Hollywood does not absolve us of the sin of systemic racism. Black Panther, a superhero film starring a black cast brought in a record $192 in its opening weekend.[22] Furthermore, many predominately black films like Get Out, Coming To America, and Straight Outta Compton have done well in terms of gross revenue.[23] However, one movies success, or that a few, do not mean that racism is over. In a study following Obama’s election, researchers found that non-whites who see a successful black person are less likely to believe that systemic racism persists.[24] The success of Black Panther is likely to evoke a similar reaction and give Hollywood something to point to when its accused of racism. If we do not do more to hold Hollywood accountable for its continued marginalizing of minorities, film will continue to reflect our society’s racism back at us.
For these reasons, Tom Sherak’s words ring true. Film is a reflection of society, not only of society’s past racism but also of its present and systemic racism.
[1] Molly Barrett, How we Define a Classic, Reel American History available at http://digital.lib.lehigh.edu/trial/reels/films/list/0_87_9_190 (last visited Feb. 14, 2018) (quoting Tom Sherak, Former President of the Academy of Motion Picture Arts and Sciences).
[2] 42 U.S.C. § 2000e-2(a)(1).
[3] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
[4] Id.
[5] Id. at 805.
[6] 42 U.S.C. § 1981(a); See also Monroe v. Burlington Industries, Inc., 784 F.2d 568 (4th Cir., 1986).
[7] McDonnell Douglas at 794–98.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at 807.
[12] Id.
[13] Lois L. Krieger, “Miss Saigon” and Missed Opportunity: Artistic Freedom, Employment Discrimination, and Casting for Cultural Identity in Theatre, 43 Syracuse L. Rev. 839, 840 (1992); Megan Basham, Unmasking Tonto: Can Title VII “Make it” in Hollywood?, 37 Am. Indian L. Rev. 549, 564 (2013); See also Claybrooks v. American Broadcasting Companies, Inc., 898 F. Supp.2d (M.D. Tenn., 2012).
[14] Cristina Shu Jien Chong, Where are the Asians in Hollywood? Can § 1981, Title VII, Colorblind Pitches, and Understanding Biases Break the Bamboo Ceiling?, 21 Asian Pac. Am. L.J. 29, 52 (2016).
[15] Claybrooks, at 999 (2012).
[16] Unmasking Tonto, at 578 (citing Russell K Robinson, Casting And Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms, 95 Cal. L. Rev. 1, 17 (2007)(reasoning that the First Amendment Trumps a mere statute, and that actors cannot avail themselves of the Equal Protection Clause because entertainment companies are private actors).
[17] Where Are The Asians in Hollywood?, at 42–47.
[18] Carolina Moreno and Riley Arthur, 25 Times White Actors played People of Color and No One Really Gave
[19] Id.
[20] Where Are The Asians In Hollywood?, at 33.
[21] Id. at 57.
[22] Black Panther Sets Opening Weekend Record With $192m Ticket Sales, The Guardian available at https://www.theguardian.com/film/2018/feb/18/black-panther-sets-box-office-record (Feb. 18, 2018).
[23] Danielle Kwateng-Clark, The Highest-Grossing Black Films in History, Essence available at https://www.essence.com/entertainment/highest-grossing-black-films-history#1227623 (Aug. 9, 2017).
[24] Rebecca Hiscott, White People Think One Black Person’s Success Proves Racism Is Over, Huffpost available at https://www.huffingtonpost.com/2014/06/10/racism-success-study_n_5474419.html (Jun. 10, 2014).
