Thursday, July 26, 2007

The View is Discriminatory

Althouse has a post up with an analysis of sexual discrimination in TV and film casting.

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.

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

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.

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