A federal court in New York has held that a Broadway musical’s casting decisions—specifically replacing one actor with another actor of a different race—are shielded by the First Amendment from employment discrimination claims, in a decision that could have implications across the entertainment industry.

In Moore v. Hadestown Broadway LLC, the plaintiff, a Black woman, brought race discrimination and retaliation claims under federal and New York laws against her former employer, the producer of the Tony Award-winning musical Hadestown. The court dismissed the plaintiff’s race discrimination claims, finding that the employment decisions at issue implicated Hadestown Broadway LLC’s (“Hadestown”) First Amendment rights. 

As described in the plaintiff’s complaint, Hadestown faced a backlash over conveying a perceived “white savior” narrative in its production featuring a white actor (playing Orpheus in an adaptation of the myth of Orpheus and Eurydice) rescuing the play’s (all-Black) chorus from the underworld Hades; plaintiff was a member of the chorus. Hadestown allegedly sought to diversify its chorus roles to avoid conveying this unintentional “white savior” narrative. This diversification allegedly included terminating the plaintiff and replacing her with a white actor, the adverse employment action on which the plaintiff based her disparate impact discrimination claim.

The court found that Hadestown’s Constitutional affirmative defense—specifically, that its casting decisions are shielded by the First Amendment—had merit, especially because the casting in this case actually “affected the story Hadestown was telling on-stage,” and “decisions about what story to tell . . . fall squarely within the protection of the First Amendment.” Therefore, Hadestown’s casting decisions, even though they were employment decisions, were nonetheless “inherently expressive because they are tied to the story [Hadestown] intends to tell,” specifically not a story about a white man rescuing a group of Black individuals.

While this holding has limited applicability to most industries, it has potentially significant implications for producers of theatrical, film, TV, and other productions that require casting choices and some form of narrative expression. Even if playing the same role, casting actors from different backgrounds can have a significant impact on the ideas, emotions, and even narrative conveyed in a story, as shown in noted works such as the musical Hamilton. Even as race-conscious employment decisions have come under increased scrutiny since the Supreme Court’s decision overturning affirmative action in higher education last year, this ruling is an important reminder of the nuances involved in hiring, which can itself be a form of artistic expression.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Dixie Morrison Dixie Morrison

Dixie Morrison is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Discrimination, Harassment, & Title VII and the Labor-Management Relations practice groups.

Dixie assists clients across a…

Dixie Morrison is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Discrimination, Harassment, & Title VII and the Labor-Management Relations practice groups.

Dixie assists clients across a variety of industries in litigation and arbitration relating to wrongful termination, discrimination, harassment, retaliation, wage and hour, trade secrets, breach of contract, and whistleblower matters in both the single-plaintiff and class and collective action contexts. She also maintains an active traditional labor and collective bargaining practice and regularly counsels employers on a diverse range of workplace issues.

Dixie earned her J.D. from Harvard Law School, where she was the Executive Editor of Submissions for the Journal of Sports and Entertainment Law. Dixie received her B.A., magna cum laude, from Pomona College. Prior to law school, she served as a labor and economic policy aide in the United States Senate.