Having just graduated from law school, I feel that maybe I can add
something to this discussion other than my usual satiric attempts.
I think applying traditional employment law doctrines to any of the
"Arts" is rather a stretch. For example, let's look at Age
Briefly, there are 2 theories on which to base a claim of age
discrimination: 1) disparate treatment and 2)adverse impact [I won't go
into adverse impact, since almost all the age discrimination cases are
brought under disparate treatment]. "Disparate treatment" says the
Supreme Court amounts to less favorable treatment b/c of an individual
protected characteristic, such as age. Proof of discriminatory intent is
"critical" but can be inferred.
The Supreme Court , in MCDonnell Douglas v. Green(1973), set down the
requirements for establishing a prima faice case of employment
1. the employee/job applicant was in the protected group
2.the employee/job applicant applied AND was qulified for the job
3.the employee/job applicant was adversely affected AND
4.the employer continued to seek someone with qualifications similiar to
those that the employee/job applicant possessed.
IF the employee/job applicant establishes these 4 points, THEN the
employer is required to articulate some legitimate, nondiscriminatory
reason for the decision to reject. If employer does this, THEN the
employee/job applicant rebuts & tries to show that the employer was
really motivated by unlawful discrimination.
Obviously, I haven't read the Amara case. It was won by the plaintiff so
they must have showed that whatever reason the Met gave for not
employing Ms. Amara was bogus & they were motivated by unlawful
discriminatory intent. Yet, I ask you---in a medium as visual as the
Arts, and motivated by a need to make money, couldn't the Met have just
said that Amara wasn't a box office draw anymore. Movie studios do it
all the time---Julia Roberts is a bigger $$ draw than Faye Dunaway so
we're casting Julia. My point is that if one applies traditional
employment law to the Arts, one gets absurd results. Mirella Freni is
STILL a big box office draw, that's why she is employed by opera houses
even though there are complaints about a 60 year old playing Mimi. IF
Amara was a big boxoffice draw, I guarantee you the Met would have kept
her busy, age irregardless.
Or we could look at the ADA which I am a little bit more familiar b/c I
volunteer at Dallas' free legal clinic for PWAs. IF the ADA requires
"reasonable accomdation" by employers to facilitate an disabled but
otherwise qualified employee to do their job, what are the implications
if applied to opera? For example, if a person in a wheelchair auditions
for the chorus & is qualified to sing, must the opera house hire
him/her. Actually, I don't think this would be that hard to get
accomodate. But what if it's one of the principals & the whole staging
must be reworked, especially in this era of tyrannical stage directors.
Also, how many backstages are equipped to be wheel chair accessible???
IMHO, the Arts are unique & traditional business law doctrine should not
apply. However, every effort should be made by management to deal fairly
with employees. If the offense is really egregious, then management
should be held accountable. But, overall, employment issues in the Arts
cannot be neatly pigeonholed into traditional employment law niches.
BTW, I assume the Amara case went to court. Was it appealed?? Does
anyone have a cite??? I"d love to read it.
Roy Wood, J.D. (la-dee-da)
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