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Thursday, 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.

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