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Are Fox and American Idol Guilty of Age Discrimination?

April 21st, 2009 | Ellen Simon

It would have been hard to miss the heartwarming story last week about Susan Boyle’s performance on the British version of American Idol called Britain’s Got Talent. The New York Times and CBS News have extensively covered it as have most of the other media outlets.

The episode, according to the Times, has provoked a debate about the “not so young and not so beautiful” that has many people talking.

Here’s how one blogger, Letty Cottin Pogrebin, described  what happened on the show in her excellent piece in The Huffington Post:

Once on stage, her interrogator, Simon Cowell, asks about her dream. To be a professional singer, she says, and as successful as Elaine Page — a statement that elicits great hilarity and hyperactive camera close-ups of the judges’ bemused disbelief and the snickering, eye-rolling audience.  . . .

Cheerful and unperturbed, the contestant blithely announces that she is going to sing, “I Dreamed a Dream” from Les Miserables.

“How old are you, Susan?” asks Simon, in a tone more appropriate to an interview with a toddler.

“Forty-seven,” she says. The audience cracks up. Pixels of ridicule fill the screen, incredulity, patronizing sneers, smirks, whispers you can almost hear: Look at her, will you! Frumpy from the Fifties, got a double chin, a silly Scottish accent, hails from some tiny hamlet, can’t remember the word “villages,” and to top it off, Omigod, she’s old! Either she’s a ringer and we’re in for some weird parody of Dame Edna or we’re about to see this dowdy dame make a fool of herself on the hottest show on British telly.

Finally, Susan Boyle steps into the spotlight and opens her mouth, and before she’s sung three glorious, crystal clear notes, the audience is cheering, the judges’ jaws have dropped, and I’m choking back tears.

It is truly a great story and if you have not seen the video, I strongly suggest that you join the thirty million people who have. It will surely bring a tear to your eye.

But here’s what struck me when I first saw the story: How come she gets to try out  and she’s 47? Not so in the U.S.A.

While most people may not have given it much thought, it’s pretty obvious that all of the singers on American Idol seem quite young  Well they are, and it’s no coincidence

My husband  is a pretty good singer (for sure I have a bit of a bias) and we have a good time at karaoke clubs.  My son is an agent in the entertainment business.  I  mentioned to my son that I thought it would be fun if my husband tried out for American Idol — not that he would win of course, but that it would be fun to go to a tryout. After he stopped laughing he said:

He can’t try out

Why not?  I said.

Because he’s not under 30.

Yes, that’s right.  In order  to try out for American Idol you have to be under thirty years of age.  I checked the rules and here’s what I found:

You have to be a legal U.S Citizen or a permanent U.S resident. You also have to be between the ages of 16 and 29. Make sure to bring 2 forms of I.D with you, at least one form must be a photo I.D. If you are under 18 you need to have a parent or legal guardian with you.

So is it age discrimination? It’s not a real simple answer.

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA applies to:

  • all employees and job applicants.
  • all terms and  conditions of employment including: hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

It is crystal clear that an employer can not lawfully have a rule which prohibits it from employing anyone over the age of 30.

There are times when employers can lawfully use age in making employment decisions.  For example,commercial airline pilots are required to retire at a certain age. It’s simply not safe to have 80 year old pilots flying commercial jet planes with hundreds of  lives at risk.

For that logical reason, the Age Discrimination in Employment Act permits exceptions for:

a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business

That provision, commonly called the “BFOQ” exception, allows airlines as well as other industries (where safety, for example, may be an issue) to require retirement at a designated age.

But singing?  What could possibly be the bona fide occupational justification for statinging that an excellent singer has to be under 30?  Paul McCartney and Barbara Streisand still sound just fine. In fact, it seems to me that many singers get better with age.

The problem with this scenario is that the Age Discrimination in Employment Act prohibits age discrimination in employment and folks on American Idol are not applying for jobs, so the the act arguably does not apply.

I am not, however, completely convinced that’s the end of the story and this is why.

American Idol is broadcast by Fox. Fox Broadcasting Company is a network that is heavily regulated by the federal government.

In fact , Fox is licensed by the Federal Communications Commission to do business and is subject to the Cable Television Consumer Protection and Competition Act of 1992 as well as a host of other federal laws.Television networks have all sorts of civil rights compliance requirements and regulations which prohibit discrimination.

While I understand that this is not a case of discrimination in employment, it certainly seems to me that it may be a case of discrimination in the award of a contract.

This is my argument:

  • when you win American Idol you get a recording contract
  • the contract is offered on to those under 30
  • Fox Broadcasting, through American Idol, is committing age discrimination in the award of contracts by not allowing those over 30 to compete.

I am not entirely sure whether the argument is constitutionally sound, but I am not convinced that it’s not.

As a constitutional matter, if a governmental entity awarded contracts to whites only,  we would no doubt be outraged. The government would have the impossible burden of showing that it had a “compelling governmental purpose” for doing so and the alleged justification would be given “strict scrutiny”. In other words, we would have little trouble proving that the contract is unconstitutional and illegal.

But even at the lower level of constitutional scrutiny used in cases of gender or age discrimination, how could  a contract awarded only to singers under the age of 30 be “rationally related to any legitimate governmental purpose” ? ( if Fox is considered to be taking governmental action because of it’s federal license or because it is heavily regulated by the federal government a constitutional analysis could kick in)

Yes, it’s all quite complicated.  Constitutional law is not easy. But it’s not hard to ask this question: If American Idol only permitted white individuals to audition, or permitted only men to try out, how would we feel about it and what would we do?

Putting all of the legal complexities aside, from one Simon to another, I feel compelled to ask: why can’t the show let everyone try out  to be the next American Idol?

Equal opportunity in England, but not the United States, just doesn’t seem right.

image: weblogs.newsday.com

Crossposted from Ellen Simon’s blog Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

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9 Responses to “Are Fox and American Idol Guilty of Age Discrimination?”

  1. Jon Hyman Says:

    You are comparing apples and oranges. The British equivalent of American Idol is called Pop Idol, which has the same age requirement as American Idol. The American equivalent of Britains Got Talent is called Americas Got Talent. It airs on NBC in the summer, and has no age requirement at all.

  2. Does “Idol” Discriminate? « Minding the Workplace Says:

    [...] Full post: http://www.todaysworkplace.org/2009/04/21/are-fox-and-american-idol-guilty-of-age-discrimination/ [...]

  3. Debbie Says:

    So you’re telling me that Fox is an arm of the government and therefore the constitutional standards required of government entities applies to fox? oh, pleeeease. Maybe something about the AI age requirement doesn’t seem right, but don’t tell me that any entity that has a license or a permit is therefore acting on behalf of the government. And you’re a lawyer???? Geeze!

  4. Angela Says:

    So what. America’s Next Top Model is all female. It’s a competition. It works. Don’t change it. Besides, this was surely thought of WELL before it aired the very first time.

  5. Lost Travel Blogs Says:

    Simon Cowell is soooo bad, still funny to watch him take people down though

  6. Donna Johnston Says:

    Im enjoying this article as well as the petition that is in progress. Its totally unfair that just because I was born earlier, that I can’t particiapate. The argument for the young talented need a shot doesnt fly. I dont have any more contacts or opportunities over forty than I had prior to thirty.

  7. Brian Says:

    Yes its America Idol = Pop Idol, and Britain’s Got Talent = Amerca’s Got Talent.

    But… I am 56 and it is more likely than not that I can swim, run, bike, and certainly surf, circles around you, whatever age you are.

    If you are less than 30, the there is no doubt that I have considerably more years into my songwriting, singing, and guitar playing.

    So why in hell should American Idol prevent me from competing, and why in America should they be allowed to get away with what is, legalistic gymnastics aside, clear and blatant age discrimination?

  8. Taps Tyrone Says:

    Susan Boyle is an exceptionally talented lady who’s been subjected to considerable criticism in the media. IMHO she deserves every bit of success that she is experiencing.

  9. GDB Says:

    This does seem a little bias to me. i’m 51 and started singing when i was 5 yrs old. but, due to being poor, ( like Miss Boyle) could not afford to go to talent agencies and such. Then my sons were born and i could not take a chance on not being able to feed them and support them.
    It would be great to be able to go to Idol and knock their socks off, Like Miss Boyle did! That would be so awesome! I really can visualize and feel her joy and applaud her with utter respect! As all should? Now, Idol should allow anyone of age, color, stature or Breathing, have the chance to shine or flop! This is our country, AMERICA! so let everyone do what they can to fulfill those dreams and hopes as well as the young!?

    We may enjoy the different variations of talent, Good or bad, its Entertainment either way! Come on America, where’s the spirit?
    Also, Thank You Susan Boyle for showing the world that appearance does not show the public what they are missing out on! Drop the age limit AI and the benifits will be more rewarding for America!.

    Thanks

    1

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