From Melodrama To Legal Drama: “The Bachelor” Franchise and The Lawsuit Surrounding It
By, Clarke Rosenthal
After Ten years, twenty-four seasons, and two spinoffs—The Bachelorette and Bachelor Pad—The Bachelor franchise has come to be a reliable standby for ABC, particularly in enabling the network to establish a soapy stranglehold on Monday night television. Though ratings slipped about 20% from this past spring’s season of The Bachelor in comparison to that of the previous year, the show continues to provide endless tabloid fodder, especially now that controversial single mother, Emily Maynard, is this summer’s Bachelorette. Aside from the usual fanfare that accompanies every new season of the show, a recent racial discrimination lawsuit has catapulted the franchise even further into the public eye.
The lawsuit involves Nathaniel Claybrooks and Christopher Johnson, two African-American football players from Nashville, Tennessee, who have filed a class action lawsuit, along with a group of other Nashville residents, alleging that ABC, the show’s production companies Warner Horizon, Next Entertainment, NZK Productions, and the show’s creator, Mike Fleiss, “knowingly, intentionally, and as a matter of corporate policy refused to cast people of color in the role of The Bachelor and The Bachelorette.”
The way the show works is that every week an eligible Bachelor or Bachelorette limits a pool of possible romantic matches by granting a rose to those who still hold his or her interest, in the hopes of finding the mate of his or her dreams at the end of it all. While creator Mike Fleiss has said that one of the reasons for the franchise’s continued popularity is that they cast “relatable” people, there is no denying the trend of persistent paleness when looking at the contestants over the years.
While two Bachelors have hailed from outside the United States—an Italian prince was featured in Season 9 and a British businessman in Season 12—not one Bachelor or Bachelorette has ever been Asian, Latino, African-American, Native American, or Middle Eastern. In terms of the initial twenty-five competitors seeking to snag a rose, seasons typically feature at least one or two minority contestants, but they are given a glaringly minimal amount of screen time and are almost always sent home quickly. In The Bachelorette’s current season, for example, the lone African-American contestant was denied a rose on the very first night, and Alejandro Velez, the season’s only remaining minority contestant as of this past Monday, was just sent home as well.
So why exactly has this show lack of diversity persisted throughout its run while other reality television shows such as CBS’s Survivor have been thoroughly diverse from the get- go? Mike Fleiss, the show’s executive producer, has seemed to place the blame on the applicant pool in saying that “We always want to cast for ethnic diversity. It’s just that for whatever reason, they don’t come forward. I wish they would.” Others have identified the problem as a feedback loop in which the continued invisibility of minority cast members has deterred people of color from even applying.
Claybrooks and Johnson are seeking to put an end to this “chicken or the egg” debate by identifying the franchise itself as being responsible for the show’s diversity problem. The plaintiffs describe a situation in which they were taken to the side of the room and left out of the normal audition process while attending an open casting call for The Bachelor in Nashville; they believe this mistreatment was because of their race.
Aside from seeking punitive damages and attorney’s fees, the lawsuit intends to look for structural solutions to the pattern of bias as well as to have a broader social message. According to the complaint, “the deliberate exclusion of people of color from the roles of the Bachelor and Bachelorette underscores the significant barriers that people of color continue to face in the media and the broader marketplace.” While The Bachelor franchise is, like it or not, part of our cultural landscape, this case is very unusual in its claiming of discrimination by a television show.
So, might the plaintiffs have a successful case? In terms of the nuts and bolts, this case is really about contracts, rather than content. Resting on the Civil Rights Act of 1866, the post Civil War statute that was enacted in order to protect the rights of African-Americans, particularly in ensuring recently freed slaves an active role in commerce, the plaintiffs’ complaint alleges that contracts have been denied to candidates of color for fear that they would negatively affect ad revenue and ratings, thus violating prior Supreme Court rulings. Essentially, in order for the plaintiffs to have a case, they must demonstrate more than the obvious fact that there has never been a non-white Bachelor or Bachelorette; instead, they must push the envelope further in showing that the show’s lack of diversity is based on purposeful decisions by its producers to deny contracts to people of color. While the facts alleged in the complaint certainly create the appearance of discrimination, further discovery, most likely in the form of documentation such as contestant applications, internal memos, or production emails, would be necessary in order to prove that there is intentional discrimination occurring.
The clearest obstacle the plaintiffs would face, however, is the possibility that the application of certain anti-discrimination laws to First Amendment- protected expressive works, which would include television shows, could violate the Constitutional right to free speech. Laws that may be implemented to remedy the discrimination problem could potentially have the effect of regulating the content of speech in such a way that the government would effectively be telling people what they can and cannot portray on television or speak about in the public sphere. Because this would clearly be a huge problem, laws that regulate the content of speech are therefore subject to a very high level of scrutiny, and thus many have been ruled unconstitutional.
While hopefully everyone would agree that eliminating discrimination is a vital public policy goal, should it come at the price of limiting freedom of speech? Berkeley professor Russell Robinson has described this case as “potentially groundbreaking” in that the entertainment industry operates untethered to the rules of antidiscrimination law because of issues of creative freedom. Robinson went on to say that if discovery reveals internal information that could be described as discriminatory remarks or assumptions about viewer and sponsor biases, “the lawsuit could change the industry in a significant way.”
While it appears that the plaintiffs have a big battle to fight in order to overcome obstacles presented by the First Amendment, this dispute is certainly one to watch in that its outcome could significantly affect the future of reality television.