Saturday, March 30, 2024 | 2 a.m.
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Suppose you have a Black employee. You tell her she’s going to be fired because you need a white employee in that position. She sues. She wins, right? Well, not necessarily. Not if we’re talking about casting a Broadway musical.
That’s the implication of a recent decision by a New York federal judge in a case that raises important questions about the interplay between discrimination and creative freedom.
The lawsuit was filed by Kim Moore, who under the stage name Kim Steele had played the part of “Worker #1” in “Hadestown,” which in 2019 won the Tony Award for best musical. Worker #1 is part of what’s known as the Worker’s Chorus. According to the court, in November 2021, apparently due to happenstance, the entire Workers Chorus was Black, and the other major players arrayed around the chorus on stage were all white. Times being what they are, the top brass did some soul-searching. A choreographer emailed the cast about concerns that “certain arrangements of actors on stage (a white Orpheus, a white Hades, and a Worker Chorus of all Black performers)” could present to the audience “an unintended and harmful ‘white savior’ story.”
One can understand the worry. Theatergoers would start noticing the racial imagery. Social media would be flooded with furious denunciations, many by people who hadn’t seen the show. The producers would be on the defensive, and — again, things being what they are these days — who knows? Calls for a boycott might ensue.
Yes, the show must go on, but the path the producers chose was ... well, less than ideal. According to the complaint, they fired Moore and hired in her place a white woman. The Workers Chorus was thus integrated, the white-savior story was eliminated, and the production’s reputation was saved. But the cost of saving the production fell entirely on the Black female actor the show dismissed.
OK, that’s a terrible story. And as Judge Loretta Preska noted in her order of partial dismissal, the alleged facts, if proved at trial, were sufficient to make out a plausible case that “Defendant was at least partially motivated by discriminatory intent when it terminated Plaintiff’s employment.” Why then was most of Moore’s lawsuit dismissed?
Because, Preska wrote, “A live theater performance, such as the musical produced and staged by Defendant, constitutes expressive and artistic speech that qualifies for First Amendment protection.” Part of that speech is the decision about what and who the audience will see when watching: “The decisions ‘Hadestown’ makes about whom to cast for which roles — its employment decisions — are inherently expressive because they are tied to the story it intends to tell and its creative expression.”
This principle is right, but in practice is tricky. If I make a character in one of my novels Black and a different one white, nobody’s rights are violated. The same is true for the writer of a stage play or musical. Casting is trickier, and scholars have long worried about implicit bias in who’s chosen to play what role. But in Moore’s case we’re not speaking of anything hidden. Her claim is that she was fired because she was Black, implying that had she been white she would have held onto her job.
To be sure, there are times when casting by race is common and even unexceptionable, including on Broadway. In the original cast of “On the Twentieth Century,” the chorus of Pullman porters comprised four Black men — a defensible creative choice given the era in which the story was set. In what we might describe as the office-work-as-slavery scene in “The Producers,” the chorus is mixed, but at least when my family and I saw the show, the “until dem ledgers be right” lyric was sung by a Black actor — a defensible creative choice because the appropriation of the (unrealistic) stereotype was intentional, and, indeed, the point. (The office workers weren’t enslaved.) Both of these casting choices seem to me genuine First Amendment activity.
What had the producers of “Hadestown” all in a lather, however, was that the all-Black Workers Chorus resulted not from a creative decision but from accident. At that point, they had a choice to make: keep an all-Black chorus or replace a Black actor with a white one. What the producers knew for sure was that either decision would make news. At that point (to borrow a lyric from the show), it’s “Damned if you don’t / Damned if you do / Whole damn nation’s watching you.”
Perhaps the wiser decision would have been to roll with the randomness, leaving the cast intact while trying to figure out how the scene wound up with white leads and a Black chorus, and — if the staging was as offensive as the producers feared — to move forward not by firing anyone but by finding ways to prevent the situation from recurring. Or perhaps, if staging and script allowed, the show could have made the (creative) decision to keep all the Black actors in the chorus and hire one or two others to integrate the scene.
Preska makes a strong argument that the choice the show is alleged to have made instead — firing a Black woman and hiring a white one — was a creative decision, protected by the First Amendment. But the issue seems to me sufficiently novel that it would be useful to see it fully debated on appeal.
Stephen Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
