[Note from the editor: This piece has been updated to include a new response from Northwestern University Law School Dean Kimberly Yuracko, who provides a counter-argument to the idea that the play’s payment tiers might not be legal].
A casting call was recently posted on Backstage, a website for actors and technicians, for a small ensemble play in New York City.
Underneath the "rehearsal" heading, the call stated that white actors who were cast in the show would participate in a mandatory "anti-racism training" session. That training session would not be mandatory for actors of other races.
Under the "compensation" heading, the call stated that actors of color would be paid more than white actors.
The original text under the "rehearsal" and "compensation" sections read:
Please note we are working on organizing a short (3 – 4 hour) anti-racism training for the creative team and ensemble in April – to help us address power dynamics and reduce harm within the creative process. This training will be open to all ensemble members and creative team members, but will be mandatory only for white ensemble/creatives.
Pays a small stipend (minimum $150) for the spring workshop period. Due to the content of this particular project, resources are being allocated in favor of POC collaborators. This means that POC artists will receive a larger stipend than the white artists working on this project.
Additionally, although the character breakdowns are non-descriptive, the "stage manager (staff/crew)" section reads as follows:
If you're interested, please email a resume ... and tell us a little bit about yourself and why you're interested in working on this project. If you're white, we'd also love to hear a little bit about what accountability to people of color within a creative process means to you.
On or around Monday, April 1, the "compensation" text suddenly changed. It now simply reads: "Pays a small stipend (minimum $150) for the spring workshop period."
In order to understand why the changes were made, I reached out to the playwright via email.
Within a few hours, the playwright got back to me with a question: "What do you mean about the compensation part changing?" A few minutes later came a second reply:
Just checked it – I think Backstage must have taken out the part about paying people of color a higher stipend. But that hasn't changed!
Troubled by the idea of payment tiers seemingly based on race alone, as well as mandatory anti-racism training for only white actors, I reached out to several legal scholars for clarification.
I asked Professor John Donohue of Stanford Law the following questions, having providing him with the information from the casting call:
- Is it legal to pay people (actors in the cast) differently based on race?
- Is the mandatory "anti-racism training" only for white cast members legal?
Donohue replied, simply stating: "Not allowed under federal employment discrimination law (and presumably state anti-discrimination law as well)."
Professor Elizabeth Bartholet of Harvard Law said that although she doesn’t know "what justification" the authors of the casting call "present or have for paying different races differently, if the payment tiers are based only on race, it would not be legal."
She added that it "would be illegal to require one race and not another to go through the anti-racism training if based only on race."
With this information in hand, I reached out to the playwright on Friday, writing: "I’ve spoken with two legal professors, both of whom told me that paying people differently based solely on race is likely not legal. Would you like to comment for the piece?"
I have yet to receive a reply.
However, Northwestern University Law School Dean Kimberly Yuracko has a different take:
Under federal and state law it is illegal to discriminate on the basis of race in the terms and conditions of employment. This prohibition certainly applies to discrimination in pay based on race and would also, I think, cover disparate training requirements based on race. The question I am less sure of is whether this organization is covered by either federal or state antidiscrimination laws as such laws generally only apply to organizations of a particular size and apply to the treatment of employees. I am not sure from the listing below either the size of the organization or whether the artists will be employees of the organization or simply independent contractors.
Setting aside any legal issues, or lack thereof, surrounding the payment tiers, such a system would still be considered by many as unethical and even racist.
As of Friday, something else has changed. There’s no longer any mention of the "anti-racism training" underneath the "rehearsal" heading. It now states: "Rehearses April & May, with a work in process showing in June."
Auditions are allegedly underway.