Taking a “Look Back” at Hadestown’s Journey Way Down to Court: A Significant Case Opinion Paves the Way for Defenses to Claims of Discrimination in Casting

By Ethan Krasnoo and Anna Beckelman

In May 2023, in the RPJ website post ”Will NYC’s New Employment Discrimination Bill Restrict Casting ‘In The Heights’?” we discussed New York City’s new law prohibiting employment discrimination based upon height or weight and how this legislation might affect casting decisions in New York theater, including on Broadway.  As we noted at that time, casting has typically been granted greater latitude in regard to discrimination claims than most other hiring decisions, given the connection between casting and the artistic vision of a theatrical production.  Theater producers have sometimes also relied on the “bona fide occupational qualification” (BFOQ) exception included in anti-discrimination laws to support casting requirements and decisions that in other fields could be deemed discriminatory.  Such was the case with Hamilton, which stirred controversy in 2016 when a casting call specifically sought out “nonwhite” actors; the producers cited the BFOQ exception and stated that such casting was essential to the artistic vision of the show and intended to address long-standing underrepresentation on Broadway.

The issue of casting and discrimination was brought into the limelight once again when Kim Moore, a former member of the ensemble of the Tony Award winning musical Hadestown, sued the show’s producers for race discrimination and retaliation in connection with her 2021 termination.  Moore’s complaint was the subject of our last post: “Hadestown’s Journey Way Down to Court: Race-Based Casting’s Intersection with Employment Discrimination Laws.” .  Moore, a Black, African-American woman, was a member of the show’s “Workers’ Chorus,” which at the time was made up exclusively of Black and African-American performers.  When the production’s management expressed their intention to avoid having an all-Black chorus following accusations of a “white savior” narrative within the show, Moore complained of racial discrimination and a hostile work environment. In her lawsuit, she alleges that soon thereafter, she was fired from Hadestown in retaliation and replaced in the chorus with a white woman.

On March 7, 2024, the U.S. District Court for the Southern District of New York dismissed Moore’s race discrimination claims on the basis of the Hadestown producers’ First Amendment defense.  The producers argued that casting decisions for a theatrical production are a form of creative expression with First Amendment protection, and that Moore could not limit those casting decisions via the lawsuit, nor could she “compel Defendant to express a message that differs from the one it wishes to convey when it stages the Musical.”

The district court agreed, stating that “Hadestown’s creative decisions about what story to tell when it stages the Musical fall squarely within the protection of the First Amendment,” and that because “casting the performers who appear on stage comprised a significant component of that artistic decision, Hadestown’s First Amendment protection extends to its decisions about casting.”  The court’s opinion further elaborated that the all-Black Workers’ Chorus caused performances of Hadestown to convey an unintended “white savior story” that “departed from the script and the artistic vision…intended,” and that upholding Moore’s discrimination claims by regulating casting changes would violate the First Amendment by “compelling a theater company to stage a performance in a manner that expresses a story the theater company does not wish to tell.”

It is worth noting that while the district court ruled in favor of Hadestown on Moore’s discrimination claims, it upheld her retaliation claims, stating that Moore had still participated in protected activity, and her “alleged retaliatory firing is in no way related to the artistic storytelling that confers certain First Amendment protections upon Defendant.”  Thus, to the extent that, Moore can establish that she was fired for her complaints about discrimination, even if there was no underlying discrimination given the First Amendment legal defenses afforded to the theater producers as a result of the ruling, Moore could still be victorious in establishing retaliation in violation of law.

The court’s ruling is noteworthy because there has not been much legal precedent for the First Amendment and artistic freedom afforded to producers in casting as a defense to claims of discrimination.  It is expected that the case opinion, if it is not reversed on appeal, will be cited extensively in support of future theatrical casting decisions seeking not only individuals of specific race(s) or color(s), or seeking to avoid casting individuals outside specific race(s) or color(s), but also to support casting decisions based on age, disability, or gender expression as well as height and weight with respect to New York City’s law, and potential other protected classes focused on appearance or the like.  The opinion is likely to garner support not just by protecting theatrical producers and their agents, including casting directors, but amongst television and film producers and their agents as well.

Ethan KrasnooThis article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Ethan Krasnoo who counsels clients in areas of complex commercial litigation, arbitration, mediation and dispute resolution, and employment, intellectual property, and entertainment and media. Mr. Krasnoo is admitted to practice law in New York, the United States District Courts for the Southern and Eastern Districts of New York, the United States Court of Appeals for the Second Circuit and United States Tax Court.