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May 23

Can there be true Equality in Casting?

Can there  ever be a truly level casting playing field? Looking at how the casting process – from breakdowns to auditions  – interacts with modern equal opportunities sensibilities and employment law, in my two part piece from the Stage, re-published here.

Michael Wharley on Diversity in Casting, for The Stage, June 20, 2013

Michael Wharley on Diversity in Casting, for The Stage, June 20, 2013

 

Diversity issues as they relate to the business scarcely seem to have been out of the news in the last few years:

That’s whether raised by individual actors, presenters or directors speaking out on perceived limited opportunities for their ethnic, age, gender or class group (Brian Cox, Miriam O’Reilly, Rufus Norris, Lenny Henry & David Oleweyo and many more), research like the Freestone report into gender inequality in theatre, or specific groups finding a voice and earning casting recognition (as in the outcome of the furore surrounding the RSC and British East Asian actors).

Opening up BBC Casting

This week at the Equity Annual Representatives Conference, the issues have come into focus again, with a motion being passed calling on the BBC to widen access to its casting breakdowns.

As The Stage reports:

[important]Speaking at this year’s Annual Representative Conference, actor Daniel Page presented a motion urging the union to open discussions with the BBC to address the issue. He said the BBC had “substantial resources” paid for by the public, adding “Equity members should be able to know what jobs are available”. Page said that opportunities should not be limited, with “casting breakdowns sent to selected agents for a minority of members who are able to pay for top drama schools”.  Full report here.[/important]

Page also reflected that the motion was born of a desire for equality: “We are looking for openness and fairness for casting.”

It’s a laudable aim, and one many – myself included – would argue should be a basic duty of big public-funded organisations like the BBC or The National.

But despite our modern social and legal attitudes towards inclusion and diversity, it is hard to imagine how they could ever truly square with the appearance- and age-focused priorities of casting. 

These are the issues I examined last year in an in-depth, two-part piece for the Stage, looking at how theatre casting intersects with those modern trends in diversity, employment law and equal opportunities.

Two-Part Article on Diversity in Casting

In Part 1, re-published here, I speak with a prominent entertainment industry employment lawyer, Marian Derham at Harbottle & Lewis, to understand how the traditionally appearance- and age-focused priorities of casting square with the law itself, and discover that the industry effectively self-regulates.

In Part 2, which I’ll put up next week, I explore the practical realities of this self-regulation, speaking to Wendy Spon, Head of Casting at the National, and talking to other industry players such as Spotlight and the Arts Council, to try to get a sense of how and to what extent the industry can, should or will embrace change.

Part 1 below, and check back in a week or so for the second half.

23/05/2014 MW

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The age-old Issue of Equality in Casting

(first published, The Stage, June 2013)

Just how legal is current practice in theatre casting? In the first of two Insight features exploring on-stage diversity, Michael Wharley considers how Equal Opportunities legislation and contemporary social attitudes towards inclusion square with the appearance- and age-focused priorities of casting.

When US TV and film actress Huong Hoang unsuccessfully brought a court case against IMDb (and its owner Amazon) last month, having alleged that she lost work when the site revealed her actual, rather than playing age, familiar questions were raised about Hollywood’s ageism and gender discrimination.

In the UK, the case also chimed with two recent reports. One from May, championed by Harriet Harman, showed that only 18% of TV presenters over 50 with major broadcasters are women. The other resulted from research into the top-ten subsidised UK theatres by Elizabeth Freestone of Pentabus Theatre and The Guardian, with the headline figure of a disturbingly stubborn 2:1 male: female ratio across all theatre jobs, and a could-do-much-better 38% of roles going to women in 2011-2012.

Few would argue that such cases and figures require a response, or that such reports help foment change in specific areas of equality. But quite apart from responding to prevailing social pressures, theatres – like all employers – have a statutory duty under the Equality Act 2010 to reduce discrimination on far broader grounds; what the act defines as ‘protected characteristics’ of sex, race, disability, religion or belief, sexual orientation or age

So how do these responsibilities impact on the process of casting, which privileges renown, age, appearance and physical characteristics to such a degree?

As partner Marian Derham – an employment law specialist at prominent industry law firm Harbottle & Lewis – outlines, under the terms of the Equality Act, the average employer engaged in recruiting has a general duty “to make sure that they are not discriminatory in the process.”

But while a theatre’s advert for front of house staff almost certainly couldn’t seek ‘young, white females’ – that would likely be to discriminate against age and race – it can put out a breakdown seeking submissions for the role of ‘actress, 20-25, white.’ Why?

As Derham explains, the Act’s ‘occupational requirement; general exception’ comes into play here: so “direct discrimination on the protected characteristics is permitted in certain circumstances.” In casting terms: “if it is crucial to a role that someone has a particular characteristic that would otherwise be discriminatory, the employer can advertise for those specifics for the role.”

But importantly, this freedom is only possible if the choices made in defining the role are, to quote the Act, “a proportionate means of achieving a legitimate aim” (Schedule 9, EqA 2010 ). So such choices, says Derham, “have to be objectively justifiable; employers have to show that for reasons of authenticity or realism, there’s a requirement for someone of a particular age, race or sex to play a specific role.”

But what constitutes legitimacy in artistic terms is open to interpretation. In 2006, producer Jonathan Shalit was rapped on the knuckles by the Commission for Racial Equality (under previous legislation) after advertising for 17-23 year old black women for a new music group. And Marian Derham does suggest that under the present Equality Act an all-black cast “could be problematic in a stage play not written that way.”

By contrast, she reflects, an all-black cast for a version of the same play given a staging that justifies the decision, such as the RSC’s recent Julius Caesar, set a in a modern African state, “would probably tend more towards satisfying the test of occupational requirement [in seeing only black actors for roles].”

And what constitutes proportionality is also fluid in casting terms, says Derham. Theatres “need to be mindful that the casting measures they take are reasonable and that there wasn’t a less discriminatory way of filling a role.”

In more binary examples, like gender, that’s fairly straightforward. Where actual age and playing range are involved, things are potentially more complicated. Derham again: “If a role requires a person to be 16 years old, it might be problematic if only 16-18 year olds could apply. Even beyond playing range, you can do so much with wardrobe and make-up.”

Given the subtleties of this legal landscape, one wonders just how many casting breakdowns and processes would pass close inspection. But such reflections are relatively abstract. A theatre’s casting process – whether generally or for a specific show – would realistically only undergo such intense scrutiny in a tribunal or court case brought by a disaffected actor or perhaps a pressure group.

And that’s unlikely. In 2011, presenter Miriam O’Reilly won a landmark ageism case against the BBC for age-related dismissal, but that’s a rather different kettle of entertainment-industry fish. There there are no employment tribunal cases relating to the theatre casting process under the current act, and just one pregnancy-related case under previous legislation.

“It could be burning bridges and rather career-limiting to bring a case” reflects Derham, “an actor might think ‘I didn’t get that job, but the same company will be offering many others’.”

Indeed, despite taking place in a different jurisdiction, the Hoang case is worth noting both for its rarity, but also because it involved an actor seeking remedy, not against an employer concerning a specific role that wasn’t gained, but against a third-party corporation which she alleged had compromised her earning ability, based on the evidence of a long career.

On the one hand, many would see this is an instance of common sense in law: the ‘occupational requirement: general exception’ simply recognises the specific recruitment needs of the industry without harming anti-discrimination efforts. Indeed, there’s little dispute that UK theatre is a generally more diverse world today than 20, 10 or even five years ago.

But on the other, the freedom from scrutiny it allows, means that the industry broadly polices itself, and individual theatres (or their freelance casting professionals) broadly answer to themselves on equal opportunities and diversity in casting. Even where the bounds of what’s legal are shaded, and where active discrimination – conscious or otherwise – takes place, the chance of legal redress, or even public rebuke, is small.

So, it seems fair to ask, quite what is the practical reality of this self-policing? And is it the best way to bring true equality and diversity to UK theatre? These questions will be explored in second part of this piece.

1 comment

  1. GB

    I have worked as a dogsbody for a very big theatre production company (something an actor should never do, I learnt the hard way), and a strong factor in the casting were the nude pictures of some of the actors the panel were passing around and their discussion of their sex life once the actors had left the room. These are not the norm, I’m sure, but they’re nowhere near the exception either, and there is nothing that can be done about it, because the shape of an actor’s naked behind, the colour of their skin, how fresh they look can be couched in artistic terms (“the physicality the role requires”). Monitoring and openness are the only way I can think of that might have the potential of redressing the balance somewhat.

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