Casting Diversity for Dollars: The Role of Law and Policy in Promoting Diversity in Hollywood’s Current Casting Decisions

by Vivian June

For most of the past century, Hollywood has been slow in overturning the lack of racial diversity in the casting of American films. However, the most rapid and noticeable increase appears to have occurred in the past five years in the recent phenomenon of studios casting more diverse actors in more-than-marginal roles. Some of the biggest box office dollars this year can be attributed to films with significant screen time depicting minority actors, such as “The Wolverine,” which was set in Japan and had a predominantly Asian cast, and “World War Z” with its notable casting of Indian and Asian actors.

As much as this surge may be due to a general increase in global awareness, this change may be attributable more to a conscious choice by studios to make their films more marketable to overseas audiences. Currently, overseas ticket sales represent a sizeable portion of a film’s box office, sometimes generating more than the domestic box office, as evidenced in the case of the 2013 film, “Hansel and Gretel,” which was doomed by a total domestic box office of $54 million and salvaged by an international box office of $150 million. As a response to the growth of international markets for Americans films, Hollywood seems to have taken an active role in implementing the casting of non-white actors. Some of these efforts come in the suspicious form of a Paramount Pictures’ reality show entitled, “Transformers 4 Chinese Actor Talent Search Reality Show,” in which Chinese actors compete to win roles in the fourth installment of the series, or simply in the form of casting international actors that are major stars in their home countries, as evidenced in the “Fast and the Furious 7” casting of Tony Jaa, the star of the biggest Thai film series, “Ong Bak.” Finally, studios are intentionally incorporating race into their casting decisions on a scale never seen before. These changes, however, have come about through extralegal economic incentives, and not through means of policy and law traditionally used in overturning race discrimination issues in other contexts.

 Although this change is a welcome phenomenon, underlying issues of the lack of diverse casting may still persist. First, although the number of non-white actors featured in films has risen dramatically, the top-billing star is almost always Caucasian and usually paid a much higher salary than any non-white actor. Second, if Hollywood focuses on casting well-known international stars in large overseas markets, such as India and China, Black actors lacking these built-in international followings may face a major disadvantage in casting without the continuation of policy and legal support. The same disadvantages apply to American-born Asian, Middle Eastern, and Latino actors. While Hollywood may hire international stars for their international appeal, the practice does not actually overcome deep-set issues of the lack of diversity portrayed in American society by films. These international actors may provide onscreen a diverse, non-white face, but they may not reflect American society as a multicultural society.

 

Thus, perhaps there is still room for law and policy to step in and fill in the holes left by current casting practices. Perhaps we should not close the door on the question of whether the law under Title VII should include casting decisions. Particularly because of First Amendment and artistic freedom issues, the business of filmmaking is an especially prickly ground for Title VII and Equal Protection claims, and judges have been reluctant to address such claims head on. However, diversity-promoting initiatives should continue to be vigilant, either through policy proposals or case-by-case litigation, to ensure that, when discrimination cases or policy proposals arise, they are not quickly dismissed by pointing to the current casting trends as dispositive evidence of a lack of discrimination in film casting. The traditional “watchdogs” of policy and law should continue to provide the forum and instruments of change for these issues. As far as Hollywood has come in the improvement of diverse hiring practices, each case and issue that arises through the traditional channels of law and policy should continue to be examined and discussed with equal consideration and weight. 

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