SHOULD THE LAW FIGHT AGEISM?
CASE REGARDING THE PUBLISHING OF ACTORS’ AGES RAISES IMPORTANT QUESTIONS
It’s movie season in Toronto. TIFF is underway, and the outfits of the celebs walking the red carpets are the talk of this Canadian town.
But to our south, the film news is a little more serious: a U. S. federal court case is raising important questions about Hollywood that should interest us all — even if no movie stars, sex tapes or stalkers are involved.
The Internet Movie Data Base ( IMDB) is challenging a California law that prevents subscription entertainment data sites ( such as IMDB’s IMDBPro service) from publishing actors’ ages. According to California, the lawsuit is a whole lot of unnecessary fuss: the law is just a normal rule about business contracts. However, IMDB says California is violating Americans’ constitutionally guaranteed right to free speech — the state is trampling on the First Amendment! — which you’ve got to admit is the more Hollywood- worthy argument.
The interesting underlying issue is what to do when any person (including, but not limited to, an actor) is treated less favourably because of how old he or she is.
In the United States, the Age Discrimination in Employment Act ( ADEA) makes it illegal for employers to discriminate against people 40 years or older. ( Canadian human rights legislation offers even broader protections against age discrimination in employment.) Such regulations mean no one is supposed to hire, fire, promote or demote an employee based on his advanced age. Which seems fair. Except when it doesn’t. Like when you’re casting a movie about teenage high school students and don’t want to hire a senior citizen for the lead role. That’s what the bona fide occupational qualification exception to the ADEA is for: allowing age discrimination when it’s reasonably necessary to the essence of the employer’s business. This exception acknowledges the simple fact that age does matter. At the very least, if you’re an artist trying to tell a story, it makes a difference how your audience perceives the characters. Directors shouldn’t have to cast 60-year-olds as college freshmen.
The stickier question is whether directors should have to cast 40- year- old women as “attractive romantic female leads” if the only thing that distinguishes these women from competing candidates is they’re not in their twenties anymore. What about 35-yearol d women? Or 20- year- ol d women who look like they’re 35?
The California law IMDB is challenging wants to prevent certain websites from listing actors’ ages. It’s trying to end ageism in Hollywood. But as many, including IMDB’s lawyers, have pointed out, an actor’s age is an objective fact. Fighting discrimination by obscuring (or trying to obscure) the truth seems like a poor strategy.
If the problem is that our society views older women as less appealing ( or sympathetic or attractive or competent, etc.) than younger ones, then preventing people from knowing a woman’s exact age is a strange solution. It may allow more 40- year- old women to play 30- year- old women on TV, but it’s not going to change what we think of middle-aged females.
The key question here is whether attitudes can be adjusted by legal command and control, or whether attitudes must simply reach their own organic tipping point through social persuasion and the sharing of information. If the answer is the latter, then are our anti- age- discrimination laws doing any good? More importantly, are they doing any harm?
It’s not a bad time to take stock: this year marks the 50th anniversary of the ADEA, and while it has succeeded in protecting older workers from discriminatory firing over the past half decade, it has also achieved the dubious triumph of making hiring older workers a far less palatable option for employers. Older workers now represent a real threat of expensive agediscrimination lawsuits; it has become more efficient for managers to find amorphous reasons not to hire over-50s than to take them on and risk litigation.
The same may be true in Canada. As Toronto employment lawyer Stuart Rudner told The Globe and Mail a few years ago, employers must walk on egg shells when approaching an older worker with performance issues.
“As soon as you say anything … ‘ You seem to be slowing down,’ even if it relates to age indirectly, you are opening yourself to a human rights claim … you have got to treat this so cautiously.”
Some might argue this is progress. Presumably, most of us would prefer a reality in which older actors, older workers, older women — heck, people in general — were treated humanely, kindly, and forthrightly — and with opportunities openly offered or denied based on how good a fit they are for the job.
EVEN IF IT RELATES TO AGE INDIRECTLY, YOU ARE OPENING YOURSELF TO A HUMAN RIGHTS CLAIM.