Abstract

Excerpted From: Tolulope F. Odunsi-Nelson, Redefining the Scope of Antidiscrimination Law: Illuminating Colorism as a Basis for Discrimination Claims by Black Entertainers, 90 Brooklyn Law Review 1171 (Summer, 2025) (512 Footnotes) (Full Document)

The 2023 writers' strike, which lasted over 100 days, served as a harsh reminder of the economic precariousness faced by many actors and actresses in Hollywood. The strike not only disrupted television and movie production schedules, it also brought to light the financial vulnerabilities of the performers themselves. The lengthy strike emphasized Hollywood actors' dependence on consistent income, especially for those without established careers or A-list status. This economic insecurity underscores the intense competition for roles in an industry already mired in representation and discrimination issues.

The struggle for fair representation and compensation in Hollywood is even more pronounced for Black actors. The industry's history of racism and lack of representation has long been documented. For instance, the #OscarsSoWhite social media movement in 2015, which emerged in response to the Academy Award nominations featuring no actors of color, ignited a crucial conversation about the lack of racial diversity in the film industry. However, the issue extends beyond mere representation at the Academy Awards. A subset of Black actors, namely, dark-skinned Black actors, face even greater challenges in securing roles and adequate compensation. Hollywood's preference for actors and actresses with a European aesthetic perpetuates colorism, disadvantaging those with darker skin tones.

An illustrative example is the 2021 Hollywood adaptation of “In the Heights,” a Broadway musical by Lin-Manuel Miranda. The film was criticized for its lack of dark-skinned Black Latinx individuals in leading roles. Most of the main actors were light-skinned or White-passing Latinx individuals, despite the fact that the movie was set in Washington Heights, a predominantly Afro-Dominican neighborhood in New York. Critics argued that the film failed to accurately represent the community's diversity by relegating dark-skinned actors to the roles of extras and background dancers.

Colorism, a form of discrimination based on skin tone, is anti-Black racism. It operates when lighter skin is idealized and darker skin tones are disfavored, which creates hierarchy within marginalized groups. For Black actors, particularly Black women, colorism exacerbates the challenges they face in an industry that values Eurocentric features. The interplay between skin color and other phenotypic characteristics, such as hair texture and facial features, often determines the opportunities available to them.

Several legal scholars have addressed the issue of colorism. This Article builds upon the work of these scholars by analyzing anti-Black colorism in the context of the entertainment industry. Discussing colorism in the United States and the entertainment industry more broadly involves an understanding of two intertwined histories: systemic racism and systemic colorism. This Article addresses both systems to lay the foundation for understanding colorism's impact on the entertainment industry.

Part I lays the groundwork for understanding colorism by exploring its roots in anti-Black racism and examining how societal preferences for Eurocentric features over Afrocentric characteristics contribute to discrimination based on skin tone. Part II discusses the entertainment industry's legacy of racial exclusion and stereotyping, discussing the historical use of blackface, the marginalization of Black actors, and the persistence of discriminatory practices in casting and representation. Part III explains the bona fide occupational qualification (BFOQ) exception under Title VII, which allows employers to make hiring decisions based on certain characteristics, such as sex or national origin, when those characteristics are essential to the job, excluding race and color from the BFOQ defense. This Part also analyzes federal antidiscrimination laws, including Title VII and Section 1981, and it highlights the specific challenges dark-skinned litigants face when pursuing colorism claims, such as evidentiary hurdles and the courts' frequent conflation of race and color discrimination. Finally, it examines the complex interplay between antidiscrimination law and First Amendment protections. Part IV outlines strategies to address colorism in the entertainment industry, including the introduction of implicit bias evidence through expert testimony and a proposal for Congress to define “color” under Title VII to ensure greater legal clarity and consistency. It concludes with a recommendation for a narrowly tailored color-based BFOQ, designed to allow casting directors to prioritize dark-skinned Black actors for roles where skin tone is integral to the character or narrative. Unlike existing industry practices that informally enforce a color hierarchy, this BFOQ would function as a remedial measure to counteract systemic underrepresentation, aligning with the core objectives of antidiscrimination law while preserving the artistic integrity of casting decisions.

[. . .]

Historically and contemporarily, colorism has created a hierarchical structure that disproportionately disadvantages dark-skinned Black individuals in the United States. This bias limits their opportunities and representation within the entertainment industry. The pervasive issue of colorism within the entertainment industry necessitates a critical reevaluation of antidiscrimination laws because existing legal frameworks are designed to address broader racial discrimination, often failing to capture the pernicious nature of colorism. Further, the challenges in asserting colorism claims are compounded by significant evidentiary burdens that are placed on plaintiffs. Additionally, in the context of the entertainment industry, employers can utilize defenses such as a quasi-BFOQ and business necessity defenses to extinguish plaintiffs' colorism claims. Moreover, casting choices are protected by the First Amendment as expressive conduct.

Despite these formidable obstacles, progress is possible. Integrating implicit bias evidence into legal proceedings can provide crucial support for dark-skinned litigants' discrimination claims. Additionally, a precise legal definition of “color” under Title VII can enhance the ability to substantiate colorism claims. Further, allowing casting directors to explicitly seek out dark-skinned actors for certain roles with the protection of a narrowly tailored color-based BFOQ can help rectify historical biases and underrepresentation.

The entertainment industry itself must also undergo substantive transformation to effectively combat colorism. While legal reforms, including a narrowly tailored color-based BFOQ, offer a viable path toward remedying the exclusion of dark-skinned Black actors, the success of such measures ultimately depends on the industry's willingness to acknowledge and address its own biases. This is a sobering reality. Without a fundamental shift in how decision makers, casting directors, producers, and executives perceive and value darker-skinned Black talent, any legal intervention risks being undermined by informal industry practices that continue to privilege Eurocentric aesthetics. Meaningful change requires both legal reform and a cultural reckoning within the industry itself. This includes diversifying casting decisions to include more dark-skinned actors in prominent roles. Redefining antidiscrimination laws to encompass the nuanced realities of colorism will require concerted efforts from lawmakers, the judiciary, and industry stakeholders. Embracing these reforms will foster a more inclusive industry that illuminates the diversity and richness of its participants.

Assistant Professor, Western New England University School of Law.