“get hot Egyptologists under 30 with at least a doctorate.” BWHAHAHAhahahaha!!! How many mutually exclusive categories can you pile into one casting call? “Hot” “Egyptologists” “under 30″ “with at least a doctorate.” Hilarious. (Esp. the “at least” part.)

I think the quote button on my computer broke tonight.

I worked for a production company that did TV shows for the History Channel. We were told to never, ever use female academics because – and I quote – “men don’t want to see women on TV.”

(We were also told to get hot Egyptologists under 30 with at least a doctorate. Because there’s LOTS of Dr. Daniel Jacksons out there. Oh, yeah, and they wanted “an Egyptian with a milky eye” as an expert. Didn’t care if he had credentials – he just needed to be an Egyptian who could speak English and had a milky eye. We managed to shoot them down on that one.)

We were also told to change our documentaries in ways that made them less historically accurate. Not to make them more interesting, but just to suit the personal preferences of someone at History because they didn’t like how the ACTUAL history had turned out. If we stood up to them, they could opt not to take the show, and all the money we invested in it would have been for nothing.

The joke within the industry is, “It’s called the History Channel, not the Accuracy Channel.”

This is why I no longer work in TV.

That “WHERE NECESSARY” language clearly points out that whether gender specific hiring of actors/models is allowable under Title VII in any particular case is a question of FACT not of law.

But, you know, thanks for pointing me to the law and concurrence that proves my point. I love when defense attorneys do that.

But, but — how can he do that?? It’s TELEVISION!!!

Phillips doesn’t stand for what you said it stands for. It’s a per curiam opinion that doesn’t have the language you quoted and it vacated and remanded a lower court opinion that upheld the employer’s refusal to hire women with school age children.

The language you quoted is from Justice Marshall’s concurrence and in FULL relevant part is:

“The exception for a “bona fide occupational qualification” was not intended to swallow the rule [of nondiscrimination]. That exception has been construed by the Equal Employment Opportunity Commission, whose regulations are entitled to “great deference,” to be applicable only to job situations that require specific physical characteristics necessarily possessed by only one sex.

Thus, the exception would apply where necessary “for the purpose of authenticity or genuineness” in the employment of actors or actresses, fashion models, and the like. If the exception is to be limited as Congress intended, the Commission has given it the only possible construction.

When performance characteristics of an individual are involved, even when parental roles are concerned, employment opportunity may be limited only by employment criteria that are neutral as to the sex of the applicant.”

I’d say The History Channel’s hiring practice in this case falls squarely afoul of the following EEOC regulations interpreting Title VII:

“(ii) The refusal to hire an individual based on stereotyped characterizations of the sexes. Such stereotypes include, for example, that men are less capable of assembling intricate equipment; that women are less capable of aggressive salesmanship. The principle of nondiscrimination requires that individuals be considered on the basis of individual capacities, and not on the basis of any characteristics generally attributed to the group.”

“(iii) The refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers except as covered specifically in subparagraph (2) of this paragraph.”

And does NOT fall within the narrow actor/actress exception, i.e. “subparagraph (2)” referenced in (iii):

“(2) Where it is necessary for the purpose of authenticity or genuineness, the Commission will consider sex to be a bona fide occupational qualification, e.g., an actor or actress.”

Those regulations are quoted at length in Justice Marshall’s concurrence which WOULD NOT have remanded the case to the lower court and would have simply found that the employer’s practice violated Title VII and potentially allowed a too-broad reading of the BFOQ exception.

So, what you quoted is NOT a ruling of the Court AND you misquoted it to say what the concurrence does not, in fact, say. So, either you’re a bad lawyer or you’re willfully misrepresenting the case. So, excuse me if I don’t take YOUR word for it that what The History Channel is doing is perfectly legal.

Authenticity or genuineness probably requires a female actor to play Martha Washington. It does not even arguably require that the historian-host who talks about Martha Washington be male.

IF The View excluded males from the hiring process, then, yes, I’d be prepared to argue that was sex discrimination. It’s not the hard choice you seem to want to make it. I’d much rather have women hired everywhere than protect the women-ghettoes we now have in the entertainment industry.

In 1971, in Phillips v. Martin Merietta Corp., the Supreme Court ruled that “in the employment of actors or actresses, fashion models, and the like,” it is not illegal discrimination for an employer to restrict hiring choices by sex. That is, a gender restriction in entertainment employment is a bona fide occupational qualification that excepts these particular situations from Title VII employment discrimination law.

Call the casting of a “rugged” male host stupid stereotyping — and I probably wouldn’t disagree — but it’s not legally cognizable employment discrimination.

As for “The View,” Barbara Walters is quoted in Variety in 1997 as saying she intended the show to have “four women” hosts who “got together and talked about issues of the day.” In other words, when they were looking to cast personalities for the show, they were looking to restrict the pool by gender. I think this situation is analogous to History Channel’s seeking a male host for its own TV show.

So what? How is that dispositive? In law, the only persons who are supposed to make those determinations are jury members.

“Would you say that it’s “discrimination” when ABC sought and hired only women hosts for “The View”?”

I don’t answer hypotheticals. Give me some facts, I’ll address those.

I think the e-mail was not tactfully worded, to be sure. But what I think happened here is that the casting associate was “thinking outside the box” to find talent for the TV show, by asking around colleges and universities for the host they would hire, in addition to the usual hiring channels, such as open auditions or going through talent agencies.